MOBILE, Ala. — Photos of the Prichard evidence room in disarray have become part of a Mobile rape case. A defense lawyer is asking a judge to throw out DNA evidence against his client, arguing that the Prichard Police Department mishandled physical and forensic evidence.
Mobile County Circuit Judge Ben Brooks heard arguments and testimony on the request Wednesday. He said he would wait for written arguments from both sides before ruling.
The case involves Willie Henry Ervin, 50, of Mobile, who is charged with first-degree rape and first-degree sodomy in connection with an assault on a woman at the Star Motel on Bessemer Avenue in Prichard in 2023.
The Allegations
Prichard police alleged that Ervin forced his way into the woman’s motel room, attacked her with a pistol and then raped her. Police said at the time that the victim identified Ervin from a photo lineup.
The charges against Ervin are allegations. He is presumed innocent unless and until proven guilty in court.
Two Lines of Attack on the Evidence
The Mobile County Public Defender’s Office, which represents Ervin, is challenging the DNA evidence on two separate grounds.
The search warrant. The defense argues that someone altered the affidavit and search warrant application in the case, blacking out the name of a different suspect and inserting Ervin’s name. According to the defense filing, it is not clear whether that change was made before or after a magistrate signed off on the warrant.
The handling of evidence. The filing also attacks what it calls the Police Department’s “mishandling of physical and forensic evidence.” It includes photographs released by the Mobile County Sheriff’s Office showing the Prichard evidence room in disarray.
“Recent news coverage has shown how carelessly and incompetently the Prichard Police Department handled physical and forensic evidence,” attorney Russell Bergstrom wrote.
Bergstrom argued that photos of the evidence room show a “high probability of contamination of evidence.”
The Prosecution’s Response
Mobile County Chief Assistant District Attorney Jennifer Susman told the court there was ample justification supporting the warrant, including sworn testimony.
“So that additional testimony did cure the defects that were being alleged about the underlying search warrant,” she said. “So we were confident in that motion as we’ve argued it.”
On the evidence room, Susman said the conditions shown in the photographs had no bearing on Ervin’s case because investigators sent the sample to the Alabama Department of Forensic Sciences almost immediately.
“That was not one of those, you know, kits that you saw languishing away (in the Prichard evidence room photos),” she said. “If it was returned after that, it didn’t really matter because the profile had been created. So any issues or concerns about, you know, all those horrible pictures that we all saw and were just, frankly, shocked by have nothing to do with Mr. Ervin’s case.”
Susman’s argument rests on how DNA testing works. Once a state lab develops a DNA profile from a sample, that profile exists as a record that can be compared against a suspect’s DNA. If the profile was generated before the sample was stored in poor conditions, the prosecution contends, later storage problems would not change the result.
A New Cheek Swab
Brooks on Thursday ordered Ervin to submit to another cheek swab, a quick, painless way of collecting a DNA sample from the inside of a person’s mouth.
The judge also asked both sides to submit written arguments on two questions: whether the original DNA evidence should be thrown out, and whether the results of the newly administered test could be admitted at trial.
A fresh sample taken under a court order could give the prosecution a path to DNA evidence that does not depend on the original search warrant or on the chain of custody inside the Prichard Police Department. The defense is expected to address whether the new test should be allowed in its written arguments.
Why a Search Warrant Challenge Matters
Under the Fourth Amendment, evidence obtained through an invalid search warrant can be suppressed, meaning prosecutors cannot use it at trial. A warrant must be supported by sworn facts showing probable cause, and it is reviewed and approved by a judge or magistrate.
If a warrant application was altered after a magistrate approved it, the document the magistrate signed would not be the same document that authorized the search. That is the core of the defense’s concern. Prosecutors counter that the sworn testimony supporting the warrant was sufficient to cure any defects the defense has alleged.
The Prichard Police Department Under Scrutiny
The motion arrives as the Prichard Police Department faces intense scrutiny. The Mobile County Sheriff’s Office has handled most policing calls in Prichard since mid-June, when local and federal authorities announced the arrest of a Prichard officer as part of a corruption investigation. Several more officers have since been arrested, including Chief Walter Knight.
The sheriff’s office released the photographs of the evidence room that the defense has now attached to its filing. Prichard officials, meanwhile, have been working to hire a new police chief and rebuild the department, and the Mobile County district attorney has called for the city to abolish its police department.
Defense attorneys in other cases investigated by Prichard police could raise similar questions about the handling of evidence. How Brooks rules in Ervin’s case may offer an early sign of how courts will weigh the evidence room conditions against the specific facts of individual cases.
What Happens Next
Brooks is waiting for written arguments from the prosecution and defense before deciding whether the original DNA evidence will be excluded and whether the new cheek swab results may be used.
Ervin’s trial is set for Oct. 26.
Anyone affected by sexual violence can reach the National Sexual Assault Hotline 24 hours a day at 800-656-4673.