On Thursday, Oct. 4 Circuit Judge Tyler Gill issued an emergency order to reiterate that all evidence collected and stored in the Logan County Sheriff's Department be subject to a written record of removal to protect the integrity of current and future cases.

The order came after deputy Josh Toomey, who is in charge of the evidence room at the sheriff's department, told Gill that sheriff Wallace Whittaker informed him on Oct. 3 that he intended to enter into the evidence room and remove firearms to take them and dispose of them. Toomey told Gill that there were no destruction orders for the firearms and he knew no reason that any of them needed to be removed.


Whittaker had placed Toomey as the custodian of evidence after firing former custodian Stephen Stratton last year for running against him in the May primary for sheriff.

 

When deputy Toomey, Logan County Attorney Joe Ross, and acting Commonwealth Attorney Justin Crocker approached Gill's bench Thursday, discussion took place involving the danger that if any inappropriate entry is made into the evidence room or any evidence is inappropriately removed, the integrity of the evidence could be affected.

When the NDL contacted Whittaker, he claimed he was following proper procedure and was only letting deputy Toomey know there were firearms that would be going to the Kentucky State Police to be destroyed.

"I told deputy Toomey that we had guns in the evidence room that needed to go to KSP for disposal. My only thoughts are that he must have thought I was talking about all guns. I realize that evidence involving pending cases that haven't been solved can't be touched. The guns I was talking about are the ones that will go to the KSP for disposal," said Whittaker, who added he is waiting on orders of destruction from KSP.

Attorney Ross said he was contacted by Crocker and Toomey about the evidence issue outlined in Judge Gill's order.

"My role in that proceeding was largely to be involved and aware as the situation related to the county and specifically the liability of the county or any county officials," said Ross. "Ultimately, the order basically sets out the process that the sheriff's department follows currently as to the destruction of evidence. At the time the order was written, the sheriff and two of his chief deputies were out of the office, so I was unable to discuss the matter with them. I have spoken with sheriff Whittaker since and he assures me that there must have been a misunderstanding. We also agreed that we would discuss this matter with Judge Gill next week when sheriff Whittaker was back in the office."

Crocker said he was contacted by Toomey Wednesday, Oct. 3 and made aware of his concerns as evidence custodian at the sheriff's department.

"When an issue like this arises I am of the mindset that my first priority as Commonwealth Attorney must be to stop any potential issue and to maintain the status quo until the matter can be further discussed because it is the responsibility of the Commonwealth to maintain the integrity of all evidence being held for pending criminal prosecution in felony cases," said Crocker. "Upon notification of any issues involving the integrity of that evidence, the Commonwealth is obligated to notify the court and other officials in order to preserve the rights of both the Commonwealth and the defendants awaiting trial. I have since spoken with sheriff Whittaker and I have assured him my office is willing to cooperate and prepare any needed orders for the destruction of evidence in closed cases to keep his evidence room operating efficiently. It is my understanding from sheriff Whittaker that it was not his intention to destroy guns without proper court orders or destroy guns that are still evidence in pending cases and that he would not intend to do so during the remainder of his term. It is my hopes that myself, Mr. Ross and the sheriff's department can get together in the coming weeks to get this issue adequately resolved and to move forward in a way that ensures the system continues to run smoothly for all of our offices."

Gill said in his order that it must be the practice of all law enforcement agencies to coordinate any disposal of evidence with prosecuting authorities to ensure that the evidence can no longer be used in any case and that this practice prevents errors in the destruction and disposal of evidence.

Gill mentioned his concern about three unrelated felony cases that were dismissed in his court since 2014 because evidence logged into the evidence room at the Logan County Sheriff's office could not be located prior to the trials.

"We have found the evidence in two of the cases Judge Gill refers to in this order," said Whittaker. "They were found in another bin. The third case evidence we believe was destroyed when mixed in with another case."

Whittaker went on to tell the NDL that deputy Toomey has always had the only key to the evidence room since he was hired in that position to assure the integrity of the room.

Gill said Toomey shall personally maintain the full integrity of every item of evidence in the evidence room and shall permit no person to remove evidence of any type from the evidence room without a direct order from the Circuit Court or District Court of Logan County.

Deputy Toomey shall maintain all keys to the room in his possession and shall not delegate his duties to any person. It was also ordered that deputy Toomey may not be fired, demoted, relieved of his duties or penalized in any way, for his actions in obedience to this order.

Whittaker said he plans to address this issue Monday morning when he returns from vacation.