On September 9, 1997, Deputy Joseph Foster, a
six-year veteran, was engaged in his duties as a jailer dispatcher for
the Storey County Sheriff’s Office in historic Virginian City, NV.
Foster was also the shop steward for the Operating Engineers, which is
the recognized labor representative for the deputies in the department,
and had been involved in a number of grievances with the sheriff and the
county.
At this time every year Virginia City holds
the nationally famous camel races, which bring crowds of onlookers and
revelers to the town. As with most large events, law enforcement
agencies step up their activities to insure the safety of everyone
involved.
As a result, the normally quiet Sheriff's Office is
deluged with arrests and detentions, usually related to alcohol
consumption. This year was no different.
As part of his duties, Deputy Foster was required to
keep the lobby clean and to pick up any loose articles of clothing left
in either the public locations or in the locations where members of the
public are allowed controlled access, whether such articles belong to an
arrestee or other persons.
Unless belonging to an inmate, the articles
were generally not logged, but kept in a utility room as a makeshift
lost and found, waiting for the owners to return and claim them.
While cleaning the area near the department's
breathalyzer machine, which had been extensively used that evening due
to a Nevada Highway Patrol checkpoint near the city, Foster found an
XXXL black lined jacket hanging on a chair nearby. It had no
identification and he did not recognize it as belonging to an inmate or
other person he knew.
He picked up the jacket and later, along with several
other items left in the lobby, put the jacket into a plastic bag and
placed it on the top shelf of some metal shelving in the utility room.
The utility room was completely disorganized, except for some locked
evidence lockers, with no inventory kept of the items contained in there
at any time.
In addition to lost and found articles, the room
housed cleaning equipment, inmate work crew clothing and was overflowing
with items discarded from use by the department. No one returned to
claim the jacket and it remained in the room for a month thereafter.
On October 7,1997, Foster was notified that he was to
appear the next day before an investigator with the Nevada Department of
Investigators, to answer questions relating to an alleged theft of a
reserve deputy's jacket liner from the jail center. When Foster inquired
as to what this was about, he was informed that he was being accused of
stealing the jacket liner on September 9,1997, as a video tape showed
him removing the jacket from the back of the chair.
Knowing this to be untrue, Foster immediately
contacted the union business agent and informed him of the
circumstances. Foster went to the utility room and confirmed the jacket
was still in its location and reported the same to the representative.
In order to insure that the jacket did not
thereafter disappear without evidence of its location, Foster documented
the jacket's location in the utility room with pictures taken on scene,
showed the bag and items, along with the pictures, to another jailer and
procured the items for delivery directly to the investigator.
When the interview was canceled that day, Foster,
under the direction of his supervisor, placed the items, including the
jacket, in evidence with pictures, and the property was sealed by an
evidence clerk for documented safekeeping.
Despite all of the precautions and the
exculpatory documentary evidence and a complete lack of inculpatory
evidence to the contrary, Foster was charged with petty theft and
obstruction of an investigation, both misdemeanors in Nevada, by the
Storey County District Attorney's office.
Foster was referred to Legal Defense Fund
panel attorney Mark Kilburn, of Reno, who undertook defense of the case.
Shortly thereafter, the charge of obstructing an investigation was
withdrawn, however, despite the lack of proof of any criminal activity
by the deputy, the district attorney's office refused to drop the petty
theft charge.
On the alleged theory that since no one who had been
in this dilapidated room had seen the jacket other than Foster, the
district attorney theorized it must not have been there and therefore it
must have been stolen by the deputy.
The case went to trial on June 25, 1998, lasted eight
hours and involved numerous witnesses. In the deputy's defense, several
witnesses, including supervisors, admitted that anyone entering the
utility room in question would have no idea what was in there unless
they, themselves, placed such in the room.
This was due to a lack of organization and no one
ever keeping an inventory of the room's contents. Witnesses during the
trial also admitted that the bag containing the items could easily have
been in there and not noticed for a month or even longer.
The court was able to view the pictures documenting
the location of the bag of clothing and review accounts by witnesses for
the prosecution, some of which were directly contradicted by previous
statements given to the Nevada investigator.
At the conclusion of the case, it took Judge John Ray
just moments to rule from the bench that Foster was not guilty of the
offense of theft.
It should be noted that the Storey County
Sheriff’s Office opted not to conduct an internal investigation and
that Foster took and passed a polygraph examination on the issues
regarding the jacket.
