PUBLISHER'S NOTE: This is a hugely important story about the growing pains caused by the sudden addition of massive amounts of video evidence in police agencies across the USA - (and, no doubt in police agencies far beyond America's borders. Serious issues relating to disclosure and the risk of withholding exculpatory evidence (whether deliberate or not) are raised by the situation which the Grand Strand police department now is facing - a judge's order to develop a set of procedures for collecting and transferring high-tech evidence such as officer body camera videos and cell phone data within 30 days. No doubt defence lawyers, prosecutors and police departments will be watching these events unfold very closely.
Harold Levy: Publisher; The Charles Smith Blog;
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QUOTE OF THE DAY: “The problem of managing digital evidence is not unique to Grand Strand police agencies or even South Carolina departments. This is a huge issue at agencies across the country,” said Seth Stoughton, a former police officer who now teaches criminal law at the University of South Carolina’s School of Law. “The sudden addition of a massive amount of video evidence is going to take some getting used to. This is disruptive, but it may be useful to think of the disruption as growing pains — necessary adjustments that the system needs to make to accommodate this new technology.”
Former police officer Seth Stoughton - now teaching criminal law at the University of South Carolina’s School of Law.
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STORY: "Judge gives Grand Strand police departments 30 days to improve procedures for managing evidence," by reporter Charles D. Perry, published by 'My Horry News' on December 26, 2017.
GIST: A
circuit court judge gave Grand Strand police agencies until next month
to develop a set of procedures for collecting and transferring high-tech
evidence such as officer body camera videos and cell phone data after
defense attorneys raised concerns about access to those records during
recent criminal trials, authorities said. Earlier
this month, Judge Steven John called together law enforcement leaders
from Horry and Georgetown counties and told them they had 30 days to
craft a plan for addressing evidence-related problems that have arisen
in recent cases, said 15th Circuit Solicitor Jimmy Richardson, who
expects the plan to be finished by the second week of January. “This is us trying to get our own house cleaned up,” he said. John
could not be reached for comment, but Richardson and Conway Police
Chief Reggie Gosnell attended the meeting and said the judge expressed
concerns about the management of evidence and the need for prosecutors
and defense lawyers to have access to all video, audio and other records
in order to prepare for trial. “[The judge] laid down the law,” Gosnell said. Richardson
said the issues won’t stifle the justice system because most of his
cases end in plea deals. However, he stressed that finding a resolution
is critical. “This is not going to be Armageddon,” he said. “This is only coming up and getting ugly when we have a trial.” In
the cases in question, defense attorneys have not accused the
solicitor’s office of withholding exculpatory evidence, but they have
insisted that all records be made available for them to analyze in order
for them to best represent their clients. Police
and government officials insist the problem is the volume of records
they are now processing, particularly the hours of video from body and
dash cameras and cell phone records. If
multiple officers respond to a scene, each one could have several hours
of video from an incident. That evidence must be processed and stored,
and many agencies are struggling to manage all of that information. “That’s
the biggest cost when you’re looking at body cameras,” Horry County
Administrator Chris Eldridge said. “The actual purchase of the camera is
the cheap part. It’s the storage [that’s expensive]. And of course the
state’s not providing any help for that at all. And we didn’t even get
reimbursed for the actual camera purchases 100 percent yet. So we know
that. And then the other thing … we have different agencies in Horry
County using different
technology. So that creates problems when it comes to storage and management, too.” Years
ago, the file for a car break-in case might consist of a few photos and
five pages of records, Richardson, the solicitor, said. Now that same
case could contain thousands of pages of evidence. “It’s
much easier to misplace two pieces of paper out of 3,000 than it is to
lose two pieces of paper or misplace or misfile two pieces of paper out
of five pages,” Richardson said. In
one recent case, an officer testified that police did not retrieve data
from a defendant’s cell phone. But during that testimony, an evidence
technician told a prosecutor she had collected those records on her own.
The prosecutor then had to explain the awkward situation to the judge
and the defense counsel. “Even
the judges realize when we’re in court we have been completely honest in
turning over all of the evidence, and I think the police are honest,”
Richardson said. “With this mass amount of stuff going out, you might
have 10 different officers. And it wouldn’t be fair to say the left hand
doesn’t know what the right hand is doing. … But if you’ve got 10, it’s
a lot easier for somebody to have done something that the other ones
didn’t know about than if you had one or two.” Another
issue is that prosecutors have been turning in edited body camera
videos to defense lawyers during the discovery phase of a case. Richardson said the identities of informants and crime victims should be
edited out, not to mention the irrelevant footage. But defense lawyers
have insisted the entire videos should be provided, not just the parts
prosecutors want to use at trial. “I
want to see everything,” said Morgan Martin, a Conway defense attorney
and former prosecutor. “Only then do I know if I have evidence which is
exculpatory in nature. … Why is it that you are entitled to it and I’m
not?” The problem of managing digital evidence is not unique to Grand Strand police agencies or even South Carolina departments. “This
is a huge issue at agencies across the country,” said Seth Stoughton, a
former police officer who now teaches criminal law at the University of
South Carolina’s School of Law. “The sudden addition of a massive
amount of video evidence is going to take some getting used to. This is
disruptive, but it may be useful to think of the disruption as growing
pains — necessary adjustments that the system needs to make to
accommodate this new technology.” Stoughton
pointed out that editing video could be viewed the same way as an
officer’s written report. Not every detail is included in a report; it’s
a summary of key information. “But
here’s where things get complicated,” Stoughton said. “A Supreme Court
case, Brady, requires prosecutors to turn over to the defense any
information in the government’s possession that may exculpate the
defendant, including information collected or retained by a police
agency. Most officers don’t get much, if any, training in addressing
Brady issues. So when an officer is preparing a report or putting
together an investigative file to give to a prosecutor, the officer
might include the information that she believes is relevant without
thinking about the potential Brady issues. That may mean providing video
snippets, instead of an entire video, or not providing any video
because, from the officer’s perspective, it isn’t relevant or helpful
(to the prosecution).” Yet even
if a police department turns over all the video evidence, there are
other challenges. Someone has to watch the hours of footage, and
formatting can be an issue. “Sometimes
the video is provided in a specific format that requires special
software to play,” Stoughton said. “Sometimes the video is made
available via the internet, but only if the viewer agrees to the
vendor’s terms of service, which defense attorneys and judges may not be
willing to do when they have a legal right to access the video without
preconditions.” Body cameras
became a focus of South Carolina police departments after state
lawmakers passed a law in 2015 directing law enforcement agencies to
implement the technology. The
law was approved just months after a white North Charleston police
officer shot a fleeing black man in the back. That officer, Michael
Slager, initially said he was struggling with Walter Scott when Scott
tried to use Slager’s Taser on the officer. However, a bystander’s cell
phone video showed Scott running from Slager when the officer shot him
multiple times. Slager eventually pleaded guilty to violating Scott’s civil rights. This month, Slager was sentenced to 20 years in prison. At
the time South Carolina lawmakers passed the body camera law, many law
enforcement leaders touted the move as a show of transparency that would
build public trust in police. But
Richardson said there have been many unforeseen challenges, which Judge
John highlighted in his meeting with the police chiefs this month. “I was so naive,” Richardson said, “and I think a lot of police departments were.” Still, the cameras have proven helpful in some ways. “They’ve
really been an excellent tool for us, particularly when it comes to the
citizens’ complaints,” said Gosnell, the Conway police chief. “It just
shows exactly what’s happened.” Gosnell
acknowledged that storage has been a problem, but he’s optimistic about
what has happened since the police chiefs met with the judge. A group
made up of officers from both large and small local agencies has been
meeting to develop a plan to get all the departments following the same
protocol for managing evidence and, ideally, using the same software. “It’ll
be easier to streamline in it, absolutely,” Gosnell said. “It’ll make
it much easier for everybody once we get on the seamless transfer of
these files.” Jonny McCoy, a
Myrtle Beach defense attorney, agreed that having a uniform system for
managing video evidence would benefit all sides in the justice system. “It’s
an evolving technology, so it’s a good thing we’re getting on the same
page,” he said. “I applaud Judge John for sure, and for Jimmy to work
with him in any capacity.” The
solicitor said the group working on the problems is considering a system
that would allow defense attorneys interested in seeing all video to
watch it at the police agency that recorded it. Prosecutors would watch
the video there, too. He also
said the committee is trying to standardize procedures for using body
cameras, including when to turn them on and off. Under the current
system, the process can vary from agency to agency. Richardson
said each department in the two-county circuit needs to follow the same
guidelines for processing evidence. He compared the problem facing law
enforcement to getting his son’s uniform cleaned after a baseball
tournament. “When we get home
from a baseball tournament, I stop my son right in the washroom and I
get all that he’s got on that needs to be washed right there,” he said.
“What’s happening now is [evidence is] not getting dumped immediately
and it’s getting up to the room and you find stinky socks under the bed
two months later. Let’s dump everything and know what we’ve got.” If
the police departments and the solicitor can find a system that works,
Richardson said it could serve as a model for the rest of the state. He
recently attended a solicitors conference, and he said every circuit has
these difficulties. But getting an evidence system that works for both the prosecution and the defense won’t be simple. Martin,
the Conway defense lawyer, said he doesn’t want to watch videos at the
police department. He said he needs to analyze the footage with his own
experts. However, he hopes a workable solution can be reached. “It’s
growing pains,” he said. “But you’ve got to be sure you don’t do it at
the expense of either party in the criminal justice system.”"
The entire story can be read at:
https://www.myhorrynews.com/news/local/horry_county/judge-gives-grand-strand-police-departments-days-to-improve-procedures/article_29f37db6-ea80-11e7-896c-5f6e497144cb.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
