A federal judge admonished the Hamilton County Sheriff's Office during a hearing on Wednesday for wiping what was left of its dashcam server after a "catastrophic" system crash caused 15 months worth of original dashcam videos to disappear, including those of criminally charged former Hamilton County Sheriff's Office Deputy Daniel Wilkey.
The sheriff's office has said it had no choice but to clear the server after it crashed in January. The department said it had to continue storing officers' in-car video footage "that was still being generated on a daily basis and waiting for upload," and it couldn't afford to purchase a whole new system.
U.S. Magistrate Judge Christopher Steger said on Wednesday he didn't understand why the sheriff's office would use the same server to store new data but stopped short of issuing sanctions against the county — though he compared the server situation to a crime scene.
"It would seem they would put yellow tape around that server and not touch it until someone could do an autopsy," Steger said. "I mean, gosh, that's what sheriff's departments do all the time in other situations."
Steger used the analogy of a semi-tractor trailer spiraling out of control and killing several people. But instead of preserving the truck so that it can be inspected by crash re-constructionists, the truck company repairs it and puts it back into service.
"You just can't do that when litigation is pending," he said. "And that is essentially what has been done."
Steger said he was surprised that with so many lawsuits having been filed that no one saw a problem with overriding whatever was left of the data. It made it "increasingly impossible for a forensic expert to try to figure out if it had been tampered with or if it failed."
The sheriff's office has repeatedly said that copies of many, if not all, of Wilkey's videos have been preserved because they had already been downloaded for either the Hamilton County District Attorney's Office or for the sheriff's office internal affairs unit. And reports filed by county attorneys in federal court cataloguing the remaining videos corroborate much of that claim.
But, while Wilkey's videos may have been saved, videos from other deputies' dashcams may be lost, even while the county faced multiple civil rights lawsuits as early as October and a class action in December, which should have put it on notice to preserve any evidence it had in its possession relating to Wilkey's interactions with the public as an officer.
Videos from other deputies would be relevant in both the civil and criminal cases because, as attorney Rip Biggs pointed out, Wilkey's dashcam sometimes doesn't show the encounters in their entirety and in at least one case, doesn't show any misconduct at all. In that case, evidence came from another deputy's video that had already been downloaded prior to the crash.
Wilkey has been indicted on 44 criminal charges, including six counts of sexual battery, two counts of rape and nine counts of official oppression. He also faces 10 federal lawsuits accusing him of brutality and forcing a woman to let him baptize her during a traffic stop, something Wilkey and his attorney have admitted, though they claim it was the woman's idea to be baptized.
Three other deputies — Tyler McRae, Jacob Goforth and Bobby Brewer — are accused in the civil cases of having stood by as Wilkey committed the alleged crimes. They do not face criminal charges.
In the civil cases, attorneys Robin Flores, Howard Manis and Andrew Clarke noted that the videos they received show that Wilkey was wearing a body microphone that was turned on, but the audio in the videos doesn't reflect that.
Most sheriff's office deputies do not have body cameras. Instead, they have body mics.
Sheriff's office dashcam videos released in the past by the DA's office in unrelated cases often include two separate videos showing the same footage but with different audio: one for the in-car audio and another for the body mic.
Another issue brought up by plaintiff attorneys is that, because they have second-generation copies of the videos, specific data is missing. That data, such as times and dates of creation, would have been embedded within the original videos and would have helped with authentication.
And because the sheriff's office reformatted the server after it crashed, it made it "impossible for a true forensic examination of what happened to that server," Manis told Steger.
Reformatting is the process of preparing a disk to be used for new data by erasing all information on a drive.
Also on the table on Wednesday was a motion for sanctions against the county, but Steger has denied it in an order filed on Friday. Steger said he didn't want to be too heavy-handed in his admonishment because, "through luck in circumstance and some fortuitous events," it seems that much of the relevant video may have been preserved.
Plaintiffs sought sanctions against the county after learning that it disseminated newly found dashcam videos to lawyers for the accused deputies and to the DA's office but not to the lawyers for the plaintiffs until after those lawyers asked for copies.
The plaintiffs had been under the impression that Steger ordered the county during a hearing in March not to share the videos until after they finished cataloging the footage, according to their motion. They based their belief on county attorney Sharon Milling asking Steger whether he would be OK with the county providing video footage without reviewing it, and Steger responding, "Well, no ... The risk in doing it piecemeal is that we're not going to be able to figure out exactly what has been produced."
In denying the motion, Steger said plaintiffs misinterpreted the comment, and a prohibition of sharing relevant videos with co-defendants was never in his written order.
Sanctions could still be a possibility if Steger finds that evidence was negligently lost.
Ultimately, Steger said he wants data experts to sort through the information and make a final determination because "we can talk that to death," he said, but the only way the issue will be resolved is by bringing in the experts.
"There needs to be a forensic investigation done," he said. "We're at a crossroads here."
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