Daniel Wilkey
All 44 criminal charges were dismissed on Friday morning against former Hamilton County Sheriff's Deputy Daniel Wilkey.
Kevin J. Allen, a Nashville prosecutor who was brought into the case after former District Attorney Neal Pinkston recused himself, said he never received a case file from DA Pinkston.
He said after Coty Wamp became district attorney there was an extensive search made in the office and no case file was found.
Prosecutor Allen said as part of a 70-page motion, "None of the indicted dates show any articulable facts or circumstances justifying the charges of reckless conduct by an on-duty police officer on patrol. The Wilkins decision, coupled with no factual basis for the State to argue reckless conduct, leaves your Pro Tem with no alternative but to move to dismiss these counts."
Wilkey, who left the Sheriff's Office after the 2019 charges, appeared briefly on Friday morning before Criminal Court Judge Barry Steelman.
His attorney, Ben McGowan, said, "The Wilkey family is grateful for the honest, disciplined, and thorough investigation undertaken by the special prosecutor in this case. His findings, through painstaking analysis of the evidence, corroborate what we have maintained since the beginning: that the former district attorney’s criminal charges against Mr. Wilkey were factually unfounded and should never have been filed."
Last month, Federal Judge Travis McDonough dismissed civil charges brought against the Hamilton County Sheriff's Office in the Wilkey case.
Sheriff Austin Garrett said at the time, "Since these lawsuits were initially filed, the Hamilton County Sheriff's Office has continued to maintain that allegations and claims, such as those alleged in these cases, should be adjudicated in the courts, allowing participants to the suit to present evidence in support of their claims or defenses, and not in the media, where pressure can be improperly exerted upon the litigants. Yesterday's opinion reinforces what we as an agency have long held - the men and women of the Hamilton County Sheriff's Office are dedicated to providing the highest level of law enforcement services available to the citizens of Hamilton County, which includes safeguarding their well-being and, most importantly, their constitutional rights."
Among claims against deputy Wilkey were that he had "baptized" a woman in Lake Chickamauga after a traffic stop as well as a "cavity search" made of a male defendant after another traffic stop.
Wilkey was 26 at the time he left the Sheriff's Department.
Prosecutor Allen said, "Upon my appointment, the FDAG (Neal Pinkston) failed to provide me, your appointed Pro Tem with a prosecution case file.1 Despite those circumstances, your Pro Tem made diligent efforts to assess the viability of prosecution in this case. To assemble information for an evaluation of the case, your ProTem collected source information from the TBI, FBI, United States Attorney's Office, Hamilton County Attorney, Hamilton County Sheriff’s Office, Tennessee Law Enforcement Training Academy, Hamilton County Clerk’s Office, Attorneys conducting the parallel civil cases, Wilkey’s defense Attorney Ben McGowan/Marya Schalk and individual members of the Hamilton County District Attorney’s Office. The Court scheduled this matter for May 12, 2023, for status to determine the direction of the prosecution. Now, based on information obtained from those sources and more significantly information assembled from the parallel civil litigation, the State sees no avenue of prosecution in this matter and moves to dismiss. This motion is filed considering those circumstances and considering your Pro Tem’ s mandatory ethical duty to refrain from prosecuting cases lacking probable cause."
He also said, "On August 22, 2022, this Court, pursuant to T.C.A. 8-7-106 appointed the undersigned as District Attorney General ProTem to undertake the prosecution in the above styled matter. The case was indicted in December of 2019, and thus had nearly three years of investigative and procedural history in criminal court that should have been documented in a case file. On August 24, 2022, your ProTem learned from the Hon. Neal Pinkston, Former District Attorney General (“FDAG”) that a prosecution case file was not present in the office, but one would be provided. None would ever be provided. No reports, no witness interview notes, no evidence evaluations, no grand jury notes, no correspondence, no rationale or reflections for indictment, no explanation of counts, no communication with witnesses, victims, and/or other interested persons, and no progress reports or copies of pleadings were provided. As of the date of this pleading, no file has been located. The case file notes, and work product are especially critical to understanding the theory and/or specifics of the case or in this case developing and preparing the case for prosecution because no formal investigation was ever conducted for most of the allegations. Minimally, it is critical to understanding what constitutes the criminal act sufficient for the State to respond to a request for the filed Bill of Particulars and to move forward with the prosecution. For example, the indictment contains (in counts 6-20) four counts of stalking Kelsey Wilson in a yearlong window that read exactly alike, six counts of sexual battery against Kelsey Wilson in a nine-month window that read exactly alike, and six counts of official oppression in a nine-month window against Kelsey Wilson that read exactly alike. As Wilson never gave a detailed statement to law enforcement, and the FDAG and Prosecutor (testifying witness DAG Criminal Investigator) have no written notes or independent memory of why and how these counts were differentiated to the grand jury, the State is left with extraordinarily little information on how to proceed with these allegations, and no reference to respond to a Bill of Particulars.
"On September 1, 2022, the office transitioned into new leadership with a newly elected District Attorney. Incoming District Attorney General Coty Wamp made her staff available to me and made efforts to locate any case file to no avail. To build a file, I spoke with, corresponded with and/or met with ADA Cameron Williams, ADA Lee Ortwein, ADA Tom Landis, and the named Prosecutor - DAG Investigator Tommy Meeks who were identified as the support team to the FDAG prior to indictment. Each described their role in the development and investigation as de minimis as they were limited to reviewing in-car camera videos and attending meetings about certain aspects of the case. None of the FDAG staff participated in the charging decisions, case development or grand jury process as the FDAG himself undertook the case as his own project. The Criminal Investigator for the FDAG provided Pro Tem Counsel with a digital thumb drive containing the in-car cameras collected in the James Mitchell incident, and a copy of the cell phone video taken by an officer regarding the Shandle Riley incident. The Criminal Investigator testified in front of the Grand Jury with notes that were contained in the missing physical file. Pro Tem Counsel learned that the provided videos had already been released to the public, and an online review of media coverage for the indictment and developments yielded numerous stories and publications on www.youtube.com and at various news outlet websites. The FDAG has relayed to me that he has no knowledge of the whereabouts of the case file. He provided me with an Excel spreadsheet via email with noted observations by various members (presumably ADA Williams, ADA Ortwein, ADA Landis) of the District Attorney’s staff of every traffic stop conducted by the defendant in 2019 as they relate to the appended counts 28-44. He could provide no details from memory of how he structured the indictment or what each count comprised for assistance in responding to a bill of particulars. 2 TN R S CT Rule 8, RPC 3.8 Special Responsibilities of a Prosecutor: The prosecutor in a criminal case: (a) shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."
Former District Attorney Pinkston said Friday he was filing an affidavit in the case. He denied taking any files from the office and said the Wilkey files were there when he left.
He said he felt there was ample evidence of criminal activity on the part of Wilkey.
He also said, "Any of the parties including the Court could have subpoenaed me into Court to testify about the case file and its location. No one ever did. Such speaks volumes."
The Pinkston affidavit says:
My name is M. Neal Pinkston and from September 1, 2014 until August 31, 2022, I
served as the elected District Attorney General of Hamilton County, the 11th Judicial District of the state of Tennessee.
2. On July 11, 2019, I became aware of dash cam video depicting Hamilton County Sheriffs Deputy Daniel Wilkey performing what appears to be an anal cavity search of James Myron Mitchell during a July 10, 2019, traffic stop. The video also shows Deputy Wilkey and Deputy Bobby Brewer repeatedly punching and kneeing Mr. Mitchell, who appears to fully comply with the deputies' demands and does not show any resistance.
3. Upon viewing this video, on July 12, 2019, I requested the Tennessee Bureau of
Investigation and the Federal Bureau o f Investigation conduct an investigation of potential use off excessive force.
5. Following the July 12, 2019 release of the Mitchell video to the public the DA's office
received information from several defense attorneys as well as private citizens alleging
inappropriate - and perhaps criminal -- behavior by Deputy Daniel Wilkey.
6. Asa result of the influx of requests to review other traffic stops, during the week of
Monday, August 19, 2019, I requested the Hamilton County Sheriff's Office provide copies of all of Deputy Wilkey's dash cam videos from January 1, 2019 through July 11, 2019. It is a common, almost daily, practice for the Sheriff's Office to provide the DA's office with videos within 2-4 hours of a request.
7. On Wednesday, August 28, 2019, I contacted the Sheriff's Internal Affairs Division to
request their file on an incident involving Deputy Wilkey and a woman named Abigail
Knox. That same day, I was promised the file.
8. On Wednesday, September 4, 2019, I was told the Sheriff's Criminal Investigations
Division (CID) had an ongoing investigation of the Abigail Knox incident and would not
have access to the IA file until CID's investigation ended.
9. On Wednesday, September 4, 2019, I requested the Sheriffs Criminal Investigations
Division provide my office with the file of the Abigail Knox incident. | did not receive either the CID file or the IA file on that matter.
10. On Tuesday, September 17, 2019, the DA's office contacted Austin Garrett, then serving as the Hamilton County Sheriffs Chief Deputy, in an attempt to secure the Wilkey dash cam videos which had been requested the week of August 19, 2019.
11. During that communication with Chief Deputy Garrett, he was informed that | believed someone in the sheriff's office was intentionally making it more difficult than necessary for us to acquire the videos, in a deliberate attempt to slow down our investigation.
12. Chief Deputy Garrett denied any attempt to slow down our investigation.
13. However, later that day, I received a phone call from Chief Deputy Garrett, who
informed me it would be another 120 to 180 days before we would receive the Wilkey
videos.
14. The following day, on Wednesday, September 18, 2019, I contacted Josh Melton, the
Assistant Director of the Criminal Investigation Division of the Tennessee Bureau of
Investigation, to request help from the TBI?s Fusion Center computer experts in acquiring the videos.
15. The next day, Thursday, September 19, 2019, a TBI Fusion Center agent arrived in
Chattanooga and by 1:00 p.m. was able to acquire 578 videos recorded by Deputy Wilkey's patrol car dash camera from January 1, 2019 through July 11, 2019. This was purported to be all of Deputy Wilkey's dash cam videos for 2019.
16. For the next several weeks, a small team of my staff and I reviewed the 578 videos and documented our findings of potential crimes. Approximately 160 of those videos involve Deputy Wilkey making traffic stops. Of those encounters, approximately 98 of them depict potential criminal activity by Deputy Wilkey.
17. On Tuesday, December 10, 2019, the Hamilton County Grand Jury indicted Daniel
Wilkey on 25 felony and 19 misdemeanor counts related to crimes committed during four separate traffic stops.
18. In January of 2020, I began to consider charges against Daniel Wilkey for potential
crimes committed in other traffic stops. During the course of that review, we determined it would be beneficial to see dash cam videos of other deputies who responded to some of those traffic stops.
19. When | informed the Sheriffs Office I would be seeking other videos, I was told there
had been a catastrophic failure of their computer server and they had no ability to recover any dash cam videos from a fifteen month period including the first seven months of 2019.
20. This catastrophic video failure prohibited my ability to compare witness statements
with other deputies? dash cam videos of what actually happened during most of the 9 8
questionable Wilkey stops.
21. Additionally during this time period, several lawsuits were filed against Daniel Wilkey
in Federal Court, alleging civil rights violations.
22. The catastrophic failure of the Sheriff's Office computer server occurred shortly after
Daniel Wilkey's dash cam videos were requested by attorneys in the civil cases.
23. On April 3, 2020, United States Court Magistrate Judge Christopher Steger ordered the Hamilton County Attorney's Office to obtain copies of the dash cam videos held by my office.
24, Subsequent to U.S. Magistrate Judge Steger's order, I provided the County Attorney?s
Office with copies of the dash cam videos the TBI had obtained for my office along with a
copy of the spreadsheet created to document the depictions in the videos.
24, In May 2020, the County Attorney's Office provided my office with twelve additional
Wilkey dash cam videos from 2019 that had not been previously provided to the Tennessee Bureau of Investigation or the DA's Office.
23. In June 2020, I submitted in U.S. District Court an affidavit authenticating the videos I
provided to the County Attorney's Office.
24. Prior to m
y leaving office as the District Attorney, I requested a Pro-Tem prosecutor be
appointed to handle the Wilkey case.
25. This request was made as a result of statements made by current District Attorney Coty Wamp averring she would dismiss the Wilkey case immediately upon taking office.
26. Upon my leaving the DA?s office I took no case files. All files, including the Wilkey file, were left in the DA's office.
26. Upon taking office, DA Wamp was unable to dismiss the Wilkey case as it had been
assigned to Kevin Allen, a prosecutor with the Tennessee District Attorney General's
Conference.
27. Kevin Allen subsequently informed me the Wilkey case file was missing from the DA's
office.
28. I provided to Kevin Allen a copy of the spreadsheet documenting all the Wilkey dash
cam videos acquired by the T.B.I. on my behalf.
29. I also met with Kevin Allen to discuss the Wilkey case.
30. During this meeting and in subsequent emails, ] encouraged Kevin Allen to obtain
copies of the Wilkey dash cam videos which are being used in the federal cases.
31. Any assertions made by Kevin Allen, either directly or by implication, that | in any
manner concealed, destroyed, or withheld any evidence or documentation in the Wilkey
case were made with Allen's full knowledge such statements are false.
32. The Wilkey dash cam videos, which exist and could easily have been obtained by
prosecutor Allen, do clearly depict criminal activity and should have been provided to this Court.