METROPOLIS, Ill. -- After four hearings in three months in a sexual misconduct case plagued by lost evidence and admitted law enforcement negligence, attorneys wrapped up their arguments regarding a motion to dismiss the case Friday.
Samuel Mizell, 24, faces two felony counts of predatory criminal sexual assault of a victim under 13, and one misdemeanor count of sexual exploitation of a child.
His attorney, Sarah Schlossberg, began her argument Friday in Massac County Circuit Court by calling the case against Mizell "a mishmash built upon lies, half-truths and perjury before this court."
The controversy centers around law enforcement actions in the investigation that began on Aug. 1, 2016. In the weeks following the initial report, Massac deputies said they served a search warrant at the home where Mizell lived and retrieved a few pieces of physical evidence from a room that had been mostly cleaned out, then subsequently lost the evidence which was never logged.
Schlossberg questioned former State's Attorney Patrick Windhorst, now a state representative, if Massac County Sheriff's Investigator Chad Kaylor ever contacted him regarding an audio recording of an interview between Kaylor and the alleged victims' mother.
Kaylor testified at a previous hearing that a digital file containing that recording had been stored on an external hard drive which had become corrupted.
Kaylor said at that hearing he contacted Windhorst's office because Western Digital had told him that even attempting a recovery would cost thousands of dollars, and that Windhorst directed him not to worry about trying to salvage it.
Kaylor said Western Digital destroyed the hard drive after that, but said he had no documentation of his conversations regarding the drive.
Windhorst said Kaylor never contacted him regarding the drive and he never gave any directives about whether to try to recover the file.
In her argument after the testimony, Schlossberg said the sheriff's office acted in "bad faith" due to serious negligence, false statements and failure to disclose that the evidence had been lost, claiming Mizell's due process rights were violated.
Schlossberg called the investigation "so tainted and so grossly negligent as to compromise irretrievably the rights of my client."
State's Attorney Josh Stratemeyer countered that losing the evidence made the case harder for the state.
"It was negligent, no doubt," Stratemeyer said. "If you follow procedures, you don't lose evidence." But he called Schlossberg's assertions "an unbelievable conspiracy theory."
He said none of the evidence would have exonerated Mizell, unless the children's mother had said on the recording that her children had lied or that she made up the allegations.
If that had been the case, Stratemeyer contended, he wondered why Kaylor would type up a summary of the conversation and note that it had been recorded.
Circuit Judge Joe Lieberman declined to rule on the motion to dismiss Friday, telling attorneys he would make a ruling as soon as possible.
Depending on Leberman's decision, Schlossberg said she has other motions to argue, but a date has not been set for further hearings.