Interview tapes of murder suspect missing from AG office; defense unaware of their existence

Recordings of interviews in the Sheila Box murder case are missing from the Attorney General's Office.

The recordings are evidence in an ongoing case that will go before the Missouri Supreme Court in August.

They are records required for permanent safekeeping because they involve a Class A felony conviction, according to the Secretary of State's policies.

Not only could the AG's office not provide the recordings, a spokeswoman said the office has no record of having had them.

But did the defense?

That question could play a role in David Robinson's quest for exoneration.

If the tapes never made their way to Robinson's defense, as they appear not to have made their way to the Attorney General's Office, it could constitute a discovery violation and put Robinson's conviction in jeopardy, but it's not clear whether the lost tapes contained exculpatory evidence not presented at trial.

The prosecution is required to hand over all evidence that is favorable to the defendant and that could affect the outcome of the defendant's case before trial.

This type of evidence commonly is called "Brady material," referring to the 1963 U.S. Supreme Court case, Brady v. Maryland. Brady violations are one of the most common reasons convictions are overturned.

Charles Weiss, Robinson's lead attorney from the Bryan Cave Law Firm in St. Louis, said he was not aware of the tapes.

"I don't remember ever seeing anything like that," Weiss said. "I certainly don't recall or ever heard any tape recordings. If they are available, they should be turned over to the defense."

The Southeast Missourian contacted Robinson's attorneys about the recordings after the AG's office could not provide the tapes.

Weiss, when told about the recordings, did not say whether a Brady claim would fit into their strategy in August when Robinson's case goes before the Missouri Supreme Court, via a Special Master who will report findings to the justices.

Discovery logs

Records provided by the Attorney General's Office include a discovery log that states on July 26, 2001, the prosecution sent Robinson's public defender, Chris Davis, a letter with "Brady and any discovery that I thought he may not have."

After that letter was sent, Scott County sheriff's deputy Bobby Sullivan and an investigator with the AG's office, Sarene Deeds, conducted several more interviews, prompting the prosecution to send the defense more materials Aug. 27, two days before trial. The prosecution "sent to Chris Davis all new statements taken by Sarene Deeds [and] Bobby Sullivan," according to entries in the discovery log provided by the AG's office.

That log includes a list of individuals Deeds and Sullivan interviewed, in which Korenzo Hill, Maurice Robinson and Romanze Mosby are named, among others. The discovery-log entries do not mention tape recordings, but at least three documents -- including one memo from the AG's office -- refer directly to the interview tapes.

Washington University law professor Peter Joy told the Southeast Missourian in a phone interview while it is not clear whether a Brady violation transpired, the tapes' absence is "definitely important."

"I mean the answer is, yes, it could be a Brady violation, but we can't really tell without the tapes," he said.

The problem is the tapes' absence make it impossible to know whether exculpatory evidence was overlooked by the investigators conducting the interviews -- one who was part of the prosecution and another who later testified he worked the case at arm's length, separate from the main investigation by the Sikeston, Missouri, Department of Public Safety.

Reference to the tapes

The Southeast Missourian discovered reference to at least three tapes of interviews conducted by Sullivan among the hundreds of pages of documents requested from 10 public bodies as the newspaper sought to examine how police investigated suspect Romanze Mosby.

Among those documents were three that referenced recordings:

• A supplementary report signed by Sullivan and dated Aug. 17, 2001, which references a recording of a Mosby interview and an interview with Carlos Jones, Mosby's first cousin and close friend who is said to have told the original tipster Mosby shot Box. Sullivan wrote in the report "both tapes will be copied and sent to the Attorney General's office and Public Defenders office."
• A supplementary report signed by Sullivan and dated Aug. 20, 2001, that references a recording of an interview with Korenzo Hill. In that statement, Sullivan wrote that Hill "said that he thought that Carlos (Jones) told him that the lady was shot with a 9mm, and at first he thought it was the same gun that was used to shoot Gerald Walker [by Mosby's brother Louis Mosby], but has learned since then that it was not the same gun ... Copy of tape was sent to Attorney General's office."
• A memorandum of interview with Office of the Missouri Attorney General letterhead. It was not signed, but AG investigator Deeds' name is listed as the person doing the interview, along with Sullivan. Following a summary of the interview, the document stated, "For further information refer to the tape of the interview."

According to the document, Sullivan's interview with Mosby lasted 50 minutes. The summary report was limited to a page-and-a-half statement. Sullivan and Deeds interviewed Mosby and his cousin Jones, with both exchanges being recorded. The exchange with Jones did not last long, as he asked for an attorney as soon as Sullivan informed him Mosby said Jones had shot Box.

Weiss, Robinson's attorney, said in most cases he's seen, if recordings are not submitted, there is a transcript provided in a Q&A format.

"Things can be left out of a summary that could end up being important," Weiss said.

Even though the summary of Mosby's interview appears consistent with the testimony Mosby later gave during Robinson's trial, Joy said there are important differences between an interview summary and a more detailed tape or transcript of the same interview.

"Since we don't have the tapes, we don't know for sure, and although there are summaries that say what [Mosby] said, I've seen instances where the summaries have not been complete or have omitted information," he said, later adding, "The summaries appear to be very bare bones, so the real concern is: What have the summaries left out? That concern is amplified by the fact that you don't actually have the tapes to compare with the summaries."

In response to the newspaper's requests for the recordings, attorney general special counsel Daniel C. Hartman wrote, "We can confirm that all audio recordings in our possession have been previously disclosed [to the newspaper]."

The office provided three recordings in response to the paper's original records request, but those files were all from the defense, including Mosby's confession; a recording of Mosby's stepfather, who says Romanze Mosby confessed the Box murder to him before Mosby committed suicide; and the defense's video interview with Albert Baker, the state's star witness, when he recanted his testimony that he saw Robinson shoot Box.

If the AG's office never received the tapes from investigators, as their statement implied may have happened, Joy said that still would not absolve the prosecution of their responsibilities under Brady.

"The law is fairly clear on this that it's the obligation of the state to turn over all the exculpatory evidence, and that includes making sure that if investigators, police or other law-enforcement agencies have exculpatory evidence that (it) gets to the prosecutor to be able to turn over," he said. "Otherwise, if we had a rule that said it only involved the materials the prosecutors have their hands on, then law-enforcement officers could hold onto material, and it would defeat the whole purpose of Brady."

It would be speculation to say why and how the tapes went missing, but Joy said their absence ought to raise red flags.

"I would expect any responsible attorney general's office would be concerned to at least figure out an explanation about what happened to the tapes," he said, "even if it's an embarrassing explanation that somebody dropped the ball somehow."

In a statement, the AG office spokeswoman Loree Ann Paradise wrote, "When the Attorney General came to office, he was appalled to observe the poor record retention standards and procedures practiced by past administrations. After a thorough review, he has implemented a new document management system that will ensure this office works efficiently and effectively for Missourians."

The office did not respond to follow-up questions asking whether the current AG questions the overall credibility of prosecutors in previous administrations, or whether the "poor standards and procedures" apply only to keeping track of records.

The Box murder case was prosecuted under the Jay Nixon administration, and appeals lasted through the Chris Koster administration.

The current administration, under Attorney General Josh Hawley, is scheduled to present the state's case during six days of hearings in August before a Special Master appointed by the Missouri Supreme Court.

The hearings, Robinson hopes, will result in either a retrial or his exoneration. The spokeswoman, who would not comment about who would hold the office accountable for not possessing the files, said the AG's office was working with local law enforcement in an effort to track down the recordings.

Meanwhile, the Sikeston Department of Public Safety has petitioned the Attorney General's Office, hoping it has files it says are missing from the police department, regarding a separate Sunshine Law request for a different shooting Mosby was involved in. The newspaper filed a Sunshine Law complaint to the Attorney General's Office, because the Sikeston DPS said the files exist but could not be found, but that the DPS had done "due diligence" in searching for the files.

bmiller@semissourian.com

(573) 388-3625

tgraef@semissourian.com

(573) 388-3627