Twelve more dashboard camera videos involving criminally indicted former Hamilton County deputy Daniel Wilkey — which, for "unknown" reasons weren't included in the original request — have been handed over to the Hamilton County District Attorney's Office, according to the county's latest status reports filed in federal civil court this month.
U.S. District Magistrate Judge Christopher Steger ordered the weekly reports on March 31 with the purpose of determining which, if any, videos involving Wilkey were lost in a "catastrophic data loss" that caused a 15-month period of thousands of sheriff's office dashboard camera videos to disappear as a result of a Jan. 13 software failure.
The videos are pertinent to criminal and civil cases against Wilkey, who has been indicted on 44 criminal charges, including six counts of sexual battery, two counts of rape and nine counts of official oppression.
Last month, the county noted "some potential discrepancies to be addressed" in some videos that appeared to have been left out of the cache of videos turned over to District Attorney Neal Pinkston when he requested all of Wilkey's dash camera videos from January 2019 up until he was suspended in July of the same year. Videos for at least six dates were provided to sheriff's office internal affairs investigators but not to the DA. And videos for at least five different dates were provided to the DA but not internal affairs.
This month, county attorneys listed 12 videos — roughly just under two hours of footage — as having been turned over to the DA's office by them.
DA spokesman Bruce Garner confirmed receiving the additional videos but said prosecutors hadn't yet counted them.
According to the report, seven of the videos take place on Jan. 7, 2019. Another takes place on Jan. 16, two on June 27, one on June 28 and the last one is recorded on July 5.
"It is unknown why the mass export did not capture certain videos," the county attorneys wrote.
Pinkston has said the sheriff's office told him it would take an "inordinate amount of time to copy all the videos," which is why he asked the Tennessee Bureau of Investigation to retrieve whatever videos were available. The TBI was done within 24 hours.
According to the county's report, though, the sheriff's office property and evidence division usually handles video requests. But because Pinkston's request was so large, the information technology department handled exporting the videos, the report states.
The status report explains that IT personnel used software to set parameters for the videos to be exported, based on the date range — Jan. 1 to July 11, 2019 — and Wilkey's badge number.
The same process was used to collect video for internal affairs investigators. County attorneys could not explain why some videos were missing in that export, either. They did not state whether they expect to have an explanation in a future report.
Also included in the report is an affidavit from county attorney Sharon Milling describing the steps she took to to preserve any electronic information prior to the server failure.
The judge has noted that it was the county attorneys' responsibility to issue a written letter, or litigation hold, instructing records custodians to take immediate steps to preserve any evidence associated with Wilkey and to oversee the collection of such evidence to prevent its loss.
Steger stressed the point after learning that the county didn't issue any litigation hold. Rather, attorney Dee Hobbs "simply called one or more representatives of Hamilton County to notify them that they needed to preserve evidence."
In her affidavit, Milling states she emailed internal affairs Lt. David Sowder on or about Dec. 18, 2019, — two-and-a-half-months after the first civil lawsuit was filed — and mentioned the need to review all of Wilkey's videos.
"While my email does not specifically request him to have all Wilkey videos preserved, I recall that Lt. Sowder and I discussed the need to preserve all Wilkey video," Milling writes.
She didn't memorialize the discussion in writing via email until Dec. 21, a Saturday.
In status reports filed in April, county attorneys reported having formally issued the litigation hold on April 17. That's six months after the first civil suit was filed on Oct. 1, 2019.
Wilkey faces 10 federal civil suits, including a class action, 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.
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.
As for the criminal case, Wilkey's last court date was postponed due to the COVID-19 pandemic. He is now expected in court on July 14, though that could be delayed yet again.
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