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Los Angeles, Aug 22 : Two new twists in Indian fashion designer Anand Jon Alexander's case reveal that exculpatory evidence may exist that proves his innocence.
Los Angeles Judge David S. Wesley issued a court order Aug. 18 directing the America Online Internet company to reveal the name of a subscriber who allegedly hacked into Jon's computer and eavesdropped on his communications with former defence lawyer Ron Richards.
Wesley declared that if hacking into Jon's computer had taken place and his client/lawyer privilege had been violated, "I want to know it".
The revelation that Jon's computer had been hacked into came to light last June when Jon's defence team, headed by Anthony Brooklier, succeeded in having New York grand jury testimony from November of last year unsealed.
Jon has been charged with multiple incidences of sexual assault, but when his lawyers read the grand jury transcripts, they discovered that Holly G., an alleged victim, had turned over potentially exculpatory information to lead Beverly Hills detective George Elwell.
Questioned by Jon's lawyers when he took the stand in a courtroom of the Clara Shortridge Foltz Criminal Courts Building Aug. 18, Elwell admitted he had received the information from Holly G. in September of last year but did not book it into evidence until July 31 of this year.
Elwell testified that when he received the information, he only read parts of it before photocopying the material and sending it on to Los Angeles deputy district attorney Mara McIlvain of the Sex Crimes Division. However, McIlvain's office never received the information.
Elwell further testified that only when he was directed last July by the deputy district attorney to go through his case files did he find the materials provided to him by Holly G. Asked why he didn't book the materials into evidence when he first received them, Elwell replied, "I don't book all paper evidence."
He continued to insist he forwarded the materials to McIlvain's office and that it was 'for them to decide if it was evidence.' At one point during the questioning, Wesley interrupted Jon's lawyers to further press Elwell on why he had not considered Holly G's materials evidence.
Elwell responded that in his opinion it was 'work product.' The detective also told the judge that he didn't find the materials until he went through his case files last July and found them buried among duplicated paperwork. "They got sucked into the vacuum of the case file," he said.
Had this "lapse of judgment by the police department" been revealed during the course of Jon's trial, which is set to begin with opening motions from his defense team Aug. 27, "I would have declared a mistrial," Wesley remarked.
Eric Chase of the United Defense Group, which has joined Jon's defense team because of their computer expertise and had questioned Elwell extensively on the stand, later told India-West: "I believe (Elwell's) feigning incompetence to hide malfeasance, to hide more serious wrong-doing."
The information supplied by Holly G. was a transcript of an online exchange with an unknown individual using an AOL screen name. When Jon's legal team submitted a subpoena to obtain the individual's name, AOL refused to comply.
"The rules surrounding electronic media in the ability to obtain litigation are still relatively new, and AOL has taken the position that only the government can get the information and not the defense. The problem is, it would take us a long time to litigate that issue, and we have a trial date coming up that we don't want to put off," Chase said.
Holly G's information reveals that she was told by the unknown individual that he had hacked into Jon's computer. The defense team suspects that the alleged hacker may be the father of one of the alleged victims in the case against Jon.
"We only have, I believe, a very small percentage of what that hacker did when he accessed Jon's computer. There's a lot of stuff missing that's completely exculpatory of Anand that we believe the hacker destroyed," Chase said.
According to the online exchange with Holly G, "by his own words, he said he would do anything he could to destroy Anand," Chase added.
Furthermore, the unknown individual was using a phone line "from a phone company registered in Luxembourg that we're having a very difficult time getting the records on."
Daniel Marks, another lawyer from Jon's legal team, also questioned Elwell aggressively Aug. 18 as to why he had not taken statements from a number of alleged victims who asserted that Jon had never sexually assaulted them.
Elwell stated that he had not taken some of the statements or had not written anything down because he was in the process of following up in his investigation, but later admitted there had been no follow-up on his part.
"We became aware of the (exculpatory statements) independently, and the point is, detective Elwell decided to secrete them from the defense," Chase said.