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Ex-defense team takes key evidence

February 24, 2011

CHARLOTTE (AP) — The former defense team for a North Carolina woman accused of killing her disabled 10-year-old stepdaughter took key evidence from a crime scene before it was turned over to authorities searching for the girl's body, the suspect's former attorney said Thursday.

But Lisa Dubs, who was one of murder suspect Elisa Baker's attorneys until this week, said she did nothing wrong. The defense attorney said she's allowed to collect evidence that helps her client and that she was prohibited by law from then turning it over to police without her client's permission. The defense investigator says the evidence helped convince Dubs and him that Baker was being truthful.

Legal experts say that gathering evidence — taking photographs at a crime scene, for example — is common for defense teams, but that removing potential evidence falls into a murkier area that many attorneys avoid.

"It was only in our possession long enough to negotiate an agreement with law enforcement and then we turned it over immediately," the Hickory lawyer told The Associated Press.

Dubs declined to comment about what evidence her private investigator Steve Ehlers recovered, or how long they had it in their possession before they provided it to the Hickory Police Department.

Dubs said the evidence was significant, but wouldn't elaborate. She said that if she hadn't reached a deal with investigators, they would have tested the evidence and "put it back in the same place that we found it, then left it for law enforcement to find."

The departure of Dubs from Elisa Baker's defense is the latest twist in the high-profile case of Zahra Baker, the disabled, freckle-faced girl whose disappearance and death have riveted communities in North Carolina and her native Australia.

Elisa Baker, 42, was indicted Monday on charges of second-degree murder in Zahra's death. Parts of Zahra's dismembered body were found scattered in remote locations in Catawba and Caldwell counties.

Dubs had been representing Elisa Baker until a Tuesday hearing in Catawba County Superior Court, when Elisa was assigned attorney Scott Reilly, who had been representing her on other charges, ranging from bad checks to bigamy. Baker is being held on a total bond amount of $307,700.

Ehlers told The Associated Press he took the evidence back to Dubs' office to see if Baker was "telling the truth" about her role in Zahra's death.

"Once we had it...everything fit," he said. "We believed her story."

Catawba County District Attorney James Gaither declined to comment.

There's debate over when defense attorneys can remove potential evidence from a crime scene for testing or other purposes, said Ronald Wright, a professor at the Wake Forest University School of Law. But attorneys who do so are increasingly "raising eyebrows," he said.

One potential dilemma is that a defense attorney who removes a piece of evidence risks becoming a witness against his or her own client by turning the evidence over to prosecutors.

"Normally, you shouldn't be moving physical items from a crime scene. The defense attorney is allowed to go and maybe take pictures," he said. "Sometimes, you'll have defense attorneys who go a bit further."

The North Carolina State Bar's Rules of Professional Conduct say that "applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence," and that lawyers may have to turn over the evidence to police

It's common for defense teams to investigate crime scenes on their own, but it's unusual for defense lawyers to have access to crime scenes before police do, according to Jeff Welty, criminal justice chairman for the North Carolina Bar Association.

"Very often, the crime scene has already been processed by police before defense lawyers would have a chance to remove items that might be evidence. As to whether that's proper, that's an area that's very unsettled legally," he said.

Zahra was first reported missing by her father, Adam, on Oct. 9, but authorities believe she probably died on Sept. 24. The Office of the Chief Medical Examiner found the cause of death was "undetermined homicidal violence."

After Dubs became her lawyer, Elisa Baker told police in interviews that Zahra had been dismembered. And in the company of Dubs and Ehlers, Elisa Baker led police to at least three locations in Caldwell and Catawba counties last fall, according to search warrants.

Adam Baker, who meet Elisa online and moved his family to North Carolina after they were married in Australia, remains free on bond, facing charges unrelated to his daughter. Calls to his lawyer were not immediately returned.

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