The attorney for one of the co-defendants of criminally indicted former Hamilton County Sheriff's Office Deputy Daniel Wilkey admitted last week that his client took a cellphone video of a baptism "in lieu of arrest" of a woman after a traffic stop.
The question about whether the personal footage still exists was brought up during a federal court hearing on March 31 to address motions for preservation of evidence filed by attorneys representing plaintiffs in 10 federal lawsuits, including a class action. The motions came after it was discovered that the sheriff's office suffered a "catastrophic data loss" on Jan. 13, causing thousands of Hamilton County Sheriff's Office dashboard camera videos to disappear. However, footage that had been preserved before the server crash — including Wilkey's — has not been lost, sheriff's office personnel and county attorneys have said.
Wilkey was indicted in December 2019 on 44 criminal charges, including six counts of sexual battery, two counts of rape and nine counts of official oppression. Some of the criminal charges mirror allegations set forth in the civil cases. The other deputies named in the civil suits against Wilkey have not been criminally charged.
"He did in fact make a cellphone video of the actual baptism," attorney Gerald Tidwell said of his client Jacob Goforth. The video was handed over to the Hamilton County District Attorney's Office, he said, and Goforth no longer has a copy of the video.
"I've seen it. I know it exists — it's very short, less than two minutes," Tidwell said.
A copy of the dashcamera footage of the baptism was blocked by the Tennessee Attorney General from being released to the Times Free Press in late October.
Goforth was instructed to hand over his video to the DA's office, Tidwell said, after being interviewed by his superiors following the opening of the criminal investigation.
The criminal investigation began on July 12, 2019, when DA Neal Pinkston held a news conference shortly before releasing dash camera footage showing Wilkey and another deputy kicking and allegedly performing a body cavity search of a man on the side of a road. The lawsuit involving the baptism was filed on Oct. 1, 2019.
But it's not clear when the DA's office became aware of the baptism and cellphone video and when it asked Goforth for his copy of the video. If Goforth was still in possession of the video when he became aware of the possibility of a lawsuit, and especially after it was filed, he would have been required to retain a copy, as he is named as an individual defendant in the lawsuit.
The same applies to the county and the evidence in its possession.
During the March 31 hearing and in an order filed late Friday, U.S. District Magistrate Judge Christopher Steger stressed the point that it was the county attorneys' responsibility to issue a written letter, or litigation hold, instructing the county's records custodians to "take immediate steps to preserve such evidence" and the attorneys would "generally oversee the collection of such [evidence] from computers, laptops, servers, mobile devices and other data repositories to prevent its loss."
Collecting the evidence and storing it separately is important because it protects any evidence from being overwritten or otherwise lost, Steger noted.
But the court "does not know what specific steps were taken by Hamilton County's attorneys to prevent the loss or destruction of such evidence," Steger wrote, because the county didn't issue any written litigation hold.
"Rather, [attorney Dee Hobbs] simply called one or more representatives of Hamilton County to notify them that they needed to preserve evidence," Steger wrote.
During the hearing, the county disclosed that it has "at least" 180 hours of videos stored on an external hard drive. But attorney Robin Flores, who represents several plaintiffs, said he was aware of around 500 hours that the DA's office had in its possession.
In his order, Steger pointed out that the 180 hours that the county preserved was not downloaded from the server in response to the civil litigation. Rather, it was collected to give to Wilkey's criminal defense attorney Ben McGowan.
But county attorneys were unable to clarify exactly what was depicted in the videos or how much of it overlapped with what the DA's office possessed, as no one had reviewed the 180 hours of footage.
So, in the order, Steger set forth specific deadlines for the county.
By April 17, county attorneys are to issue written litigation holds to any parties believed to be in possession of any relevant evidence. They're to notify the judge in writing by May 6 that they've issued the litigation holds. That same day, they're expected to file an affidavit describing the steps they took to ensure retention of evidence prior to the server crash.
Then, by May 29, they're expected to have obtained and reviewed the 500 hours of footage in the DA's possession, as well as the 180 hours they claim to still have and determine how much overlap there is. As part of that review, they're expected to compile a report summarizing the events depicted in the videos, listing the date and time and, if possible, the identities of the people shown in the videos.
Steger noted the COVID-19 pandemic may prevent the attorneys from meeting the deadlines but asked them to file the appropriate motions for extensions of time when necessary and to suggest reasonable alternative deadlines.
The court — and public — "must confirm the truthfulness of the reasons given by Hamilton County for losing fifteen months of in-car video footage potentially depicting the very events which are the subject of the ten lawsuits pending before this Court," Steger wrote. "The timing of the server failure was extremely unfortunate and unavoidably suspicious."
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