Attorneys Spar Over Wilkey Dashcam, Bodycam Footage

Wednesday, July 29, 2020 - by Joseph Dycus

Attorneys in the multiple Federal Court cases involving former Hamilton County Sheriff’s deputy Daniel Wilkey sparred on Wednesday on the subject of dashcam and bodycam footage.

The server that stored these videos crashed in January, leading to the loss of over a year’s worth of footage. While the Hamilton County Sheriff’s Office, who was in charge of the server, attempted to recover the footage, none was salvageable.

Fortunately for the plaintiffs and their lawyers, almost the entirety of Wilkey’s career as a law enforcement officer had been preserved before the server crash. The district attorney’s office had requested copies before the crash, and various parties also had made similar requests as well.

Put together, the plaintiffs and defense were able to cobble together most of, if not all of, the relevant video footage. However, the plaintiff’s attorneys, and the judge, still had several issues and questions about the validity of the copies.

“How can we be sure that all of the video footage that resided on the server, that reflected Daniel Wilkey’s interactions as an officer, was captured and saved?” Federal Magistrate Court Judge Chris Steger asked. “How do we know that, given the fact we can’t go to the server and check it against the entire repository of the entire footage?”

Attorney Robin Flores said, “When the county counsel made suggestions about taking videos and turning them over and passing them out to the parties, I thought the court was very clear about the risk of disseminating these videos piecemeal. Which is that we’re not going to be able to figure out exactly what has been produced.”

Attorney Andy Clarke of the Cochran Firm in Memphis brought the issue of what could be muted audio to the judge’s attention. He said that the video program would show certain bits of information such as how fast the car was going when in motion. When the car was stopped, it would also show if a microphone was in use in tandem with the body camera. 

He said, “The video indicates the microphone was on, when the only microphone that was recording was inside the car. We have gone through that, and basically, what (Hamilton County Attorney) Sharon Milling has done is marshaled all of the copies of copies, and has not addressed the underlying authenticity of the tapes.

“We have just started reviewing the tapes, and we have found two instances where Wilkey’s body mic is taken off. They could be going to a copy from Sept. 18 or other dates afterward.

“That calls into question the authenticity of every single copy of every single tape that does not have a date on it. What we’ve shown are that tapes have video that is being recorded from the dashcam showing the mic is on with no audio from the microphone.”

Attorney Clarke said one option would be that Wilkey could have not turned on his microphone, or that he turned off his microphone. He said a third option would be that Wilkey covered the microphone with his hand to obscure sound. And the fourth would be that the microphone was on and recorded, but someone edited the video after the fact.

“According to the program, his microphone can’t be off because it shows his microphone is on. Could he have covered it up? Potentially,” said attorney Clarke. “But the program shows when a microphone goes on and off.”

The idea of appointing a “special master” to investigate the server crash and to figure out how authentic the video is was floated around by attorneys. However, the federal magistrate judge had a different idea.

“I think both sides would want to hire an expert, get together and discuss protocol and a plan, and then present the plan to a court,” said the judge. “It would be better at this point if you crafted a realistic plan going forward in respect to the video tapes and records. I would cover all of that and come up with a realistic timetable to exchange the information you need.”

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