For a long time, cameras have been held up as the best means of capturing what actually happened, and thus the way to preserve both the good and bad of cops and criminals, to assure that we would have a verifiable means of knowing what happened rather than feel constrained to accept the cop’s version by default. Cameras. That’s the answer.
But there was one glaring concern, and against the tide of defense support for cameras, I kept raising one issue that remained problematic: When the cops control the cameras, what happens when they are only used as a sword, and disappear (or are altered) when they’re a shield? The Texas Court of Appeals answers in Martin v. Texas. Nothing.
Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.
“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.
The court was unmoved.
We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'”
The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.
“There is no indication in the record that Jennings or his supervisors handled the videotape in question any differently than they handled other videotapes,” Pemberton wrote. “Nor is there any indication in the record that the tape was not preserved because of any improper motive on the part of Jennings or other officers.”
Officer Jennings knew one thing, that there was nothing on his dash cam that he needed to prove his word. Did he know whether the tape showed anything helpful to the defense? We’ll never know, since the tape is gone (meaning, we have nothing for the word of the cop and defendant, and cops always win the swearing contest) and Jennings need only shrug and smile shyly.
At A Public Defender, Gideon calls this the Barney Fife Exception. Barney must have gotten a whole lot smarter, as this holding sanctions the controlled use of video for the benefit of police while approving its destruction when it has any potential to aid the defense. If Barney knows what’s good for him, he makes a calculated decision: leave the video out of his reports and then it magically disappears.
By leaving the decision of whether the dash cam video is of evidentiary value in the exclusive hands of police, it’s both an invitation, and a validation, of the destruction of exculpatory evidence. But it’s not exculpatory? Then preservation harms no one. But the court has given one side complete control and a free pass for its decision.
The only way around it is proving bad faith, the problem with which is that it can only come from the mouth of the officer or from the existence of external evidence, such as a second video tape showing the cop a liar and demonstrating why he sought to have his dash cam video destroyed. Neither are likely to happen, but more importantly, neither set a legitimate boundary for the preservation of evidence.
What makes this decision appalling is that the Texas Court of Appeals had the opportunity to fashion rules to assure that critical evidence would be preserved so that a defendant, or prosecutor for that matter, would have access to some heavy weight evidence to show what occurred. Memories are lousy and self-serving. Videotape may not be perfect, but it’s never suffers from Alzheimer. That’s only true, however, if it’s retained. The spoliation of evidence leaves everyone smelling a stink, except the Texas Court of Appeals.
Some might complain that it’s too much of a burden to maintain dash cam video in every instance of an arrest. Why? Tons of paper gets filled out. An arrest is a sufficiently significant event to take up space in a local jail, to waste the time of a bunch of educated folks, some in suits and one in a robe. It generates a ton of papers. What’s the big deal about taking the few minutes to download the video onto a DVD and sticking it in the file? If the crime is worth the potential destruction of the defendant’s life, it’s worth the few minutes of the cop’s time to keep the video.
The court’s facile reliance on good faith on Arizona v. Youngblood, where a rape kit was preserved by refrigeration but some clothing was not, making it untestable for DNA, was not only an awful decision (as conclusively proven by subsequent DNA testing as more advanced techniques allowed, fully exonerating the defendant), but misses the point of this case. In Youngblood, the failure to refrigerate was a mistake, as the correct practice was to properly preserve the evidence. Here, the decision validates the destruction of evidence because the cop, whether the smartest, dumbest, or most malevolent, claims he didn’t see any evidentiary value.
For quite some time, the notion that having a video of interactions between police and others would be a panacea, the means by which we could bring honesty to a system that perpetually preferred the word of a cop. And now, we achieved pretty much the exact same result, except that the cop has video to back up his word and the defendant has nothing more than the police officers allows him. This isn’t the way it was supposed to work. This could have established some basic ground rules that would give video half a chance of serving a purpose in memorializing conduct, no matter who it favored. But it doesn’t.
Even with video, the court deferred to the cops. And even Barney Fife knows when it’s a video he would prefer no one ever see.
H/T Radley Balko
Sir, we in the great state of confusion aka: ‘Texas’ refer to it as the B.F.S.
(No Not BullFkg Sheot) Barney Fife Syndrome. If I wasn’t aware of David’s project (Injustice Everywhere), I’d assume it was a Texas only thang.
Lately we have seen a lot of dashes being pointed away from the action and/or the action being taken out of frame. (How not to be a rockstar 101.)
Hopefully, Radley will wake up to this ‘Post’ and finally announce the date in which will be remembered as the (N.R.A. P.S.C.) “National Record A Public Servant Campaign”. Where we the people celebrate the mass utilization of photography formats to preserve & protect the rights of Citizens & Public Servants. (property, animals, pets & any evidence included). Thanks.
In the mean time – shame on Justice Bob “Punk” Pemberton and the bad badges he serves.
Why are you surprised (if you are)? This is a continuation of the policy of “Git ‘er done” which replaces all of the high sounding (but rarely applied) ‘principles’ of the US legal system. Principles can’t be allowed to impede the actual ‘work’ of convicting the accused, truth be damned.
In civil litigation a party has the duty to preserve evidence when it knows of the mere potential for litigation and relevance is construed very broadly. Why this standard is lower in criminal cases, where the potential for litigation is known as a certainty from the fact of an arrest is beyond me.
The Texas case is horrible and shameful. Those three justices are up for reelection in 2012. How I wish the rules could be changed so that judges were not barred from answering “constituent” questions about cases like this.
Why is this shocking to anyone?
The cops in this country have been destroying and “losing” evidence for decades… hundreds and hundreds of people are found to be completely innocent of crimes each year over this simple issue.
Recently the cops have taken to arresting people who have nothing at all to do with a given incident, other than they (cops) think that person might be filming them.
These arrests are mostly illegal and invariably end with a civil suit and a fat taxpayer funded settlement to the arrestee.
Cops luv to claim officer safety, but that BS don’t fly anymore. No one believes it, maybe the cops do, but at times I doubt their convictions too.
Its all about destroying any evidence that might capture them in an illegal action or unjustified act.
Which brings us to this point, if so many cops are worried about that simple fact. What does that say about the state of law enforcement in this country?
It all goes back to the old, “if you have nothing to hide, what are you worried about” line cops luv to pull on people who don’t readily consent to a search.
Same applies here…
But, the courts and prosecutors know this already and neither care. They both work for the same system the cops do, paid for by the .gov.
The only impartial person in the room is the lawyer that you hire, maybe…
Thanks for this sophisticated and thoughtful analysis.
In case it wasn’t clear, the decision came from an intermediate level court – the 3rd district in Austin. It continues a split between the 10th District Court in Waco and the 3rd District Court of Appeals in Austin over whether the Texas Constitution has a broader due process clause than the Federal one. The relevant Court of Criminal Appeals case (the highest court in criminal matters in Texas) is Ex Parte Napper, 322 S.W. 3rd 202 227-240 (Tex. Crim. App. 2010), applying the Youngblood standard to Houston lab techs who consumed all of a DNA sample in their testing.
A critical piece of information and some hope that a better outcome is still possible. Thanks.
I know I should not be surprised, but I am still having a hard time believing that they can get away with this. It just completely rules out “innocent until proven guilty”. How can an officer prove someone is guilty if they have no evidence? Even as the officer claims that he saw no evidential value in the tape, how could he not if he claims to not know if the video was working? And how could he rule it out as not having evidential value if he had just busted a man with so much drugs on him?! Here the defendant should have claimed he was framed, and then how would the police officer prove HIS innocence? This pretty much happened to me, except they wanted to charge me with speeding at 105mph in a 45mph zone, something I was well aware that I was not doing because I saw the cop and I had my car on cruise control, plus the fact that my car does not go over 60 without getting dangerously shaky. When I asked to judge for video proof of my speeding, they claimed the video had not been kept, even after I had told the police officer during the stop that he had better keep the video because I would be asking for it (he was very rude at the time, and so I was really mad because I had done nothing wrong). So when they didn’t produce the video, I told them that they could not prove I was speeding and thus I should be let go because my constitutional rights provide that I am innocent until proven guilty, and they had not proven me guilty. They then wanted to bring the speed scanner into it which I asked them to prove that it was not broken because my car could not go over 60mph without becoming dangerously shaky, and that they also had to prove my car could even go 105mph. Needless to say, the charges were dismissed, with the judge later claiming that the officer had not written down 105mph under “Scanner Reading”, but that what looked like “105” mph, instead was a “Yes”. Yeah, sure.