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ONLY IN THE WORLD-HERALD
Evidence is supposed to be presented to a grand jury in secret.
It is not supposed to disappear.
Yet the Douglas County District Court is unable to find at least three exhibits that were presented to a grand jury after the September 2007 jail death of Alexander Simoens. That includes a key item: the original jail video of Simoens dying in his cell.
Also missing: a large poster-board diagram of the former Omaha City Jail, the place where Simoens spent his last moments, and the jail's book of standard operating procedures.
Court officials say they are searching for the missing evidence — last known to have been reviewed by Judge Peter Bataillon — as prosecutors prepare to try two jailers on misdemeanor charges in Simoens' death.
The disappearing act is the latest twist in what Simoens' family calls a “never-ending saga.”
At worst, prosecutors say, they should be able to replace the missing evidence, including the video, with copies in time for the late April trials of two jailers accused of failing to render aid to Simoens.
Judge Bataillon will decide whether jailers Joachim Dankiw and Mark Haefele are guilty of official misconduct, a misdemeanor.
But the location of the original exhibits remains a mystery. Prosecutors have looked to the judge, a court reporter and the court clerk's office to find them.
No one can say for certain when the exhibits last were viewed.
Simoens died in September 2007, after writhing in his cell for hours. His death prompted city officials to speed up the closing of the city jail.
The grand jury convened in December 2007 — and handed up indictments against two jail employees and two supervisors for failing to get Simoens help.
In 2008, attorneys for the jail employees asked Bataillon to throw out the indictments. Bataillon took the matter under advisement.
In March 2009, Bataillon dismissed the indictments against supervisors Jeanele Moore and Andrew Freeman. But he left them in place against Haefele and Dankiw.
“In making a determination in this matter, the Court reviewed the entire transcript of the grand jury and all of the exhibits,” Bataillon wrote at the time.
The case has been delayed since then while the Douglas County Attorney's Office waited for federal prosecutors to decide whether to file additional charges against the jailers. Federal prosecutors declined to do so.
Bataillon said Tuesday that he could recall reviewing the video but not the poster board diagram.
Where is the material now?
“I don't know,” the judge said. “We're working to get it figured out.”
The court reporter from the grand jury proceeding said the court clerk's office collected the exhibits, although she couldn't recall whether that was before or after Bataillon had possession of them.
Douglas County District Court Clerk John Friend — whose office stores grand jury records and exhibits — said his office has no record of having received the Simoens exhibits.
“We don't have them,” Friend said. “Never got 'em.”
Friend, a former Omaha police officer, said he instituted a tracking procedure for case files and exhibits — one he says is modeled after a police evidence room.
Prior to that, he said, exhibits could be scattered among the court reporters who collected them and the district court administrator's office.
Friend said court reporters bring the exhibits to his office. His office then makes a log — both written and on a computer — of every time exhibits are checked into and out of courthouse storage.
That system was in place at the time of this grand jury, Friend said.
Friend said his records indicate that nothing was checked in — except for the questionnaires that prospective grand jurors had filled out in the case.
Prosecutor Jeff Lux said Bataillon's staff was able to retrieve other Simoens grand jury exhibits from the judge's chambers.
The missing DVD, poster-sized diagram and book of operating procedures can be replaced.
But also missing, and harder to replace, is the master list of exhibits that were presented during the grand jury's weeklong investigation, Lux said.
Simoens' son, Shawn Simoens, was incredulous upon learning of the missing exhibits.
The family's federal lawsuit has been delayed until the resolution of the criminal cases against the jailers.
“Of course it's missing,” Shawn Simoens said. “Nothing surprises me with this case anymore. This is just absolutely insane. Every time we turn around, it's something new.”
Contact the writer:
402-444-1275, todd.cooper@owh.com
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