KENNEWICK — A Benton County Superior Court judge agreed Friday that Kennewick police failed to preserve evidence in a hit-and-run injury crash this past fall, but said that the defense didn't prove that the evidence would have exonerated the defendant.
Bobi Anne Jennings' attorney, Scott Johnson, asked Judge Bruce Spanner to dismiss the charge against his client because he said Jennings' 14th Amendment rights for due process were violated.
"The state has a duty to make sure to preserve evidence so (defendants) can present a defense. ... I don't think there could be any logical evidence that police didn't know the value of the evidence," Johnson said. "There's only one remedy that case law allows and that's dismissal."
Police didn't properly impound the SUV Jennings allegedly drove or a truck at the scene that was a possible suspect vehicle, Johnson said.
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Officers also identified a smear on the SUV windshield that police reports said was caused when Aimee Dilger's face struck the windshield after being hit, but they didn't take a DNA swab to confirm it matched Dilger, he said.
Johnson said that if the DNA on the smear did not match Dilger, it could exonerate his client.
Jennings is accused of driving a SUV that struck Dilger, 33, as she walked down Garfield Street in October.
Dilger and Jennings reportedly were at the same nearby party earlier in the evening when Dilger left after getting into an argument with her husband, Robert, according to police and court documents.
Dilger walked away but her husband drove slowly alongside her and they stopped to talk on the 4600 block of South Garfield Street.
Dilger then reportedly called Jennings and asked her to pick her up, and was expecting to meet her at 45th Avenue and Garfield Street.
Dilger, however, was struck in the middle of the road where she had stopped to talk to her husband, who described the vehicle that hit his wife as a dark SUV, documents said.
Kennewick police later found a blue Honda CRV at the party with damage consistent to striking Dilger, and a witness said Jennings was seen by the driver's door shortly before officers arrived.
Jennings denies hitting her friend.
After Dilger was struck, her husband jumped out of the truck and ran to help her but reportedly forgot to put the truck in park so it rolled backward over Dilger, documents said.
Two witnesses who were at the scene just after impact said they thought the truck had run over Dilger, and an officer initially also believed Robert Dilger had backed over his wife, documents said.
Dilger's truck was impounded, but none of Aimee Dilger's injuries was consistent with rollover injuries, only "striking blows," wrote Deputy Prosecutor Megan Bredeweg in court documents.
Officers continued to investigate, went to the party and found the Honda CRV with visible damage, she said. After talking to the owner and interviewing Jennings, who had the keys, officers were unable to determine who was driving, documents said.
The next day, police inspected Dilger's truck in the impound lot and didn't see any evidence of a body strike, so the truck was released and investigators continued to try to determine who was driving the SUV they believed had struck Aimee Dilger, documents said.
Johnson contends that because there was conflicting evidence about which vehicle hit Dilger, police should have impounded both vehicles while the investigation continued.
"Moments after the accident, we have the state knowing there is a possible suspect who is not my client," Johnson said. There's nothing more essential to a case than the "instrumentality of the crime," Johnson said.
"That truck was just as likely to have caused injuries as the SUV and they had the duty to preserve it," he said.
Bredeweg countered that it's never been incumbent on police to take and indefinitely preserve every piece of evidence.
She said officers did an initial survey of the scene, impounded the truck and then released it the next day when they determined it wasn't involved.
She also said the defense had to show the state failed to preserve "material exculpatory evidence" that denies a defendant's due process.
Material exculpatory evidence is "obviously useful," she said, adding that if evidence that is just "potentially useful" isn't preserved, then the defense has to show bad faith on the part of the state.
"The test is was there evident exculpatory value of the evidence that was not preserved or destroyed," she said.
The facial smear on the windshield was not immediately apparent as exculpatory evidence, Bredeweg said, and it's not known if there was even sufficient DNA evidence on the smear to test.
"A DNA swab would not affect the state's case," she said. "The state still has all the other evidence, circumstantial as it may be."
Judge Spanner asked Johnson whether the SUV or truck had been fixed or if they were in the same condition they were that night and could still be examined.
Johnson said he didn't know, but any hair fibers, blood, or DNA wouldn't still be on the vehicles to test because the chain of custody was gone.
Spanner acknowledged the defense had a "very difficult standard" to meet to prove due process had been denied.
"Yes, police failed to preserved evidence. Yes, that evidence might exculpate your client," Spanner said. "(But) you have the burden of showing what an analysis of these items would show. I'm finding that you haven't met that threshold."
Spanner said the defense didn't attempt to collect the evidence by other means or try to examine the vehicles that could be in the same condition.
And what was "fatal" to the defense's motion is there was nothing to show there was significant DNA on the windshield smudge to test, he said.
Jennings' trial is set for March 21.
Johnson said the defense will be arguing third-party perpetrator, specifically that Robert Dilger's truck caused the injuries.
* Paula Horton: 509-582-1556; email@example.com