Sussex Judge Scolds Police Over Video Evidence - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Reported by Michael Lopardi

Sussex Judge Scolds Police Over Video Evidence

Updated:

GEORGETOWN, Del.- A Sussex County judge delivered harsh criticism to police for deliberately destroying video evidence that may have favored defendants in court.

Calling the discovery policies of Rehoboth Beach police "entrenched, flagrant misconduct," Court of Common Pleas Judge Rosemary B. Beauregard threw out intoxilyzer test results in a driving under the influence case where police failed to produce a video recording of the defendant's test.
 
However, Beauregard allowed the DUI charge to stand against Curtis D. Wright noting prosecutors can prove the offense without the so-called "blow test." Wright was eventually found guilty in a non-jury trial in January.
 
Wright's attorney, Eric Mooney, requested the court toss the test results after a Rehoboth officer said the police chief was misleading the court about the video system's ability to save footage.
 
Police Chief Keith Banks repeatedly told the court the department's video equipment did not save recordings for more than about two days, according to the ruling. Defense attorneys complained similar requests for unrelated DUI cases, some dating back years, were met with the same response.
 
The judge called Banks' responses for the video "misleading" and "incorrect" noting instances before 2009 where the chief told defense attorneys he couldn't produce any video because the record system allowed immediate playback only. 
 
Banks said the video was on a continuous loop and new footage would overwrite older recordings after about 48 hours. But Rehoboth Police Cpl. Robert Whitman and the city's information technology director testified they were aware the system could store video for up to six weeks.
 
The video recording is meant to show the defendant walking into the police station and a 20-minute period before the intoxilyzer test where officers are supposed to observe the defendant's behavior, Mooney said. Since courts tend to give heavy consideration to the test results, the defendant's behavior in the moments leading up to the test are considered crucial to its reliability, Mooney said.
 
"There's no requirement in our law that they tape," Mooney said. "The requirement is, if they do tape, then it has to be preserved."
 
Dewey Beach Police initially arrested Wright Jan. 3, 2010, but officers took the defendant to Rehoboth because Dewey does not have its own intoxilyzer equipment, Banks said.
 
In a telephone interview Monday, Banks called the situation a misunderstanding. The police chief said he believed the video system did not save footage beyond about two days. Banks said he takes responsibility for the situation but believes someone altered the record settings without his knowledge.
 
"If I had known we had any tape or evidence, I would've provided it," Banks said. "The settings had been changed and I did not realize they had been changed."
 
Rehoboth Beach Police stopped recording DUI tests on Oct. 7, 2010, Banks said. The cameras initially recorded video to protect officers against accusations of inappropriate behavior, Banks said.
 
Prosecutors appeared to leave the issue to police.
 
"Investigating agencies establish the operating procedures for the retention of such video," Delaware Department of Justice spokesman Jason Miller said in a statement.
 
"The issues and ultimate ruling in the Wright case are based upon the facts presented in that case - we have no comment on that specific case," Miller said.
 
Retired Superior Court Judge William S. Lee said the case creates a dilemma for small town police departments.
 
"The question is whether small municipalities like Rehoboth who provide this service are willing to go to the expense of maintaining video files for an extended period of time," Lee said.
 
Lee said he would not be surprised if prosecutors took the issue to the state supreme court in the future for clarification.
 
Mooney said the judge's ruling could mean appeals of previous DUI cases involving Rehoboth police; however, Lee said a surge in appeals is unlikely because the appeal period may have expired or some defendants have paid the fine and simply want to move on.
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