The Hamilton County District Attorney's Office may not have received all of its requested dashboard camera videos of criminally indicted former Hamilton County deputy Daniel Wilkey, according to the county's latest status report filed in federal civil court late last week.
On March 31, a federal judge ordered Hamilton County to file weekly status reports on whether videos involving Wilkey were lost in January's "catastrophic data loss" that caused thousands of Hamilton County Sheriff's Office dashboard camera videos between October 2018 and January of this year to disappear during a Jan. 13 software failure.
The sheriff's office and county attorneys have repeatedly said the Wilkey videos were preserved. But U.S. District Magistrate Judge Christopher Steger said the court won't be satisfied with a simple statement that the footage hasn't been lost.
In the latest report, county attorneys noted "some potential discrepancies to be addressed" and disclosed that more videos had been found.
In July 2019, after the report of an alleged roadside body cavity search, the DA's office opened an investigation and requested all of Wilkey's dash camera videos from January 2019 up until he was suspended in July. The sheriff's office told District Attorney General Neal Pinkston that it would take an "inordinate amount of time to copy all the videos," Pinkston has said.
After asking the Tennessee Bureau of Investigation to retrieve whatever videos were available — something it completed within 24 hours — Pinkston's office received 575 videos adding up to about 144 hours of footage.
Sheriff's office internal affairs investigator Lt. David Sowder later made a similar request and received his copy in December, the same month Wilkey was indicted on 44 criminal charges, including six counts of sexual battery, two counts of rape and nine counts of official oppression.
But of the two copies, both of which were for the same time frame, videos for at least six dates were provided to internal affairs but not to the DA. And videos for at least five different dates were provided to the DA but not internal affairs.
"A request has been sent to the Sheriff's Office to determine if a copying eror occurred there," Hamilton County attorney Sharon Milling wrote in the report. "[S]hould it be determined that video was not provided to the DA's Office, those videos will be submitted to that Office for their review."
On Monday, Pinkston said he had not reviewed the status report, but that his office will "be looking into that."
"We were told what we were given is what we requested," he said.
The Hamilton County Sheriff's Office declined comment and deferred all questions to the county attorney's office. County attorneys did not respond to a request for comment.
In the report, Milling stated they expect to know more about the nature of the "discrepancy" between the two copies this week.
While it wasn't requested by the DA's office, more footage from Wilkey's dashboard camera exists, according to the status report. In addition to the request to duplicate what was sent to the DA, Sowder requested videos from September to December 2018. That cache includes 411 videos that amount to about 71 hours of footage.
Additionally, the county attorney's office asked the sheriff's office for any other videos from Wilkey's dash camera. That netted 298 more videos from May 2018 to September 2018, amounting to about 83 hours of footage.
In total county attorneys have counted 1,284 videos — about 298 hours worth — recorded by Wilkey's dash camera.
"The videos now identified collectively encompass the vast majority of Daniel Wilkey's tenure with the Hamilton County Sheriff's Office," Milling wrote.
As of April 30, though, the attorneys had reviewed only 10-and-a-half hours of footage. They anticipate having an update on the additional footage reviewed by May 6.
In earlier status reports, county attorneys reported having issued a written letter, or litigation hold, on April 17 — six months after the first civil suit was filed — instructing records custodians to take immediate steps to preserve any evidence associated with Wilkey.
During the March 31 hearing and in an order filed shortly after, Judge Steger stressed the point that it was the county attorneys' responsibility to issue the preservation letter and oversee the collection of evidence to prevent its loss.
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," he 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 added.
Wilkey faces 10 federal civil suits, including a class action, accusing him of brutality and an allegedly forced baptism of a woman during a traffic stop, something Wilkey and his attorney have admitted, though they claim it was the woman's idea to be baptized.
All 10 lawsuits have been consolidated. That means pre-trial hearings can be heard at once, though separate trials could still be held. Jury trials, if not settled beforehand, will be held in 2021.
And as for Wilkey, he is expected in criminal court this week, though that is likely to be postponed due to the novel coronavirus pandemic.
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