Photo of DA Capeless via Massachusetts District Attorneys Association

In response to our recent column, Pittsfield police say they will not prevent future loss of evidence, while Berkshire DA calls his office’s failure to review evidence before a court date fair and ethical

Two weeks ago, we revealed that the Pittsfield Police Department lost a number of booking videos in a hard drive crash last summer. Since then, Pittsfield Police Chief Michael Wynn and Berkshire District Attorney David Capeless have both publicly commented on the story, but they have not explained many basic details about the crash, and what they have said isn’t very reassuring.

The day after our story was published, Chief Wynn issued a press release providing new insights about the timeline of the hard drive crash. According to Wynn, the hard drive’s issues were first reported internally on June 22, which pushes back the beginning of the hard drive problems by nine days from the earliest date we previously reported. Wynn also said that the police didn’t inform the DA’s office until July 13, which means the police waited a full three weeks before informing prosecutors about the potential evidentiary issue.

Last December, after we confirmed that the hard drive crash occurred, we sent the DA’s office a records request for notifications made to defense attorneys about the lost evidence. The DA’s office responded to our request, but did not turn over any notifications or withhold any of them under an exemption, as required by law, which led us to conclude that no notifications were made. We tried multiple times to clarify this point with Fred Lantz, the spokesman for the DA’s office, but he refused to answer any of our questions. Lantz was not even willing to say if the DA’s office was aware of the crash.

But after our piece was published, DA Capeless quickly pushed back against our reporting. He told iBerkshires.com that Lantz had answered our questions, making it appear as if we had fabricated our story. But Capeless knew Lantz refused to answer our questions because Lantz told him as much in an email that we published two weeks ago. We called on Capeless to retract this false claim, but he refused. Luckily, unlike the Pittsfield police, we maintain our recordings. We are releasing them along with screenshots of our unanswered emails to show Capeless’ lack of integrity.

Capeless also disputed our conclusion that his office hadn’t notified defense attorneys. “On any case in which we thought there was relevant evidence that might be available on a video, or a defense attorney requested a copy of the video, we were told in which cases they weren’t available and defense counsel was informed of that,” he told New England Public Radio.

But Capeless has only publicly identified a single case in which a defense attorney was notified. He still has not provided the notifications to us even after we directly told him that they should have been provided months ago in response to our public records request. It’s still unclear who else, if anyone, was notified.

The only thing Capeless would say to us about the hard drive crash was: “My Office has acted fairly and ethically in handling a situation not of our making. The loss of video evidence has been the subject of a motion filed by a defendant in only one case.”

But the case Capeless was referencing actually proves the opposite.

Capeless was referring to the case of Richard Griffin, who was arrested for allegedly driving under the influence of alcohol and prescription drugs on May 24, 2015. Joshua Hochberg, Griffin’s lawyer, requested that the DA’s office turn over a copy of Griffin’s booking video during a June 15 hearing. The court ordered the DA’s office to provide the video by July 2, but it was not until August 7 that Assistant District Attorney Katy Innes told Hochberg via email that the video had been lost.

Booking videos are “critical” in OUI cases, Hochberg told us. “They are live footage of the way someone was acting within minutes of them having been driving, which is a good indication of whether they’re under the influence or not.” Hochberg says the video would have been exculpatory and supported Griffin’s contention that he was not behaving as the police described.

Contrary to Capeless’ claim that prosecutors in his office obtain booking videos from the police when they are potentially relevant, prosecutors never asked the police for a copy of Griffin’s video until they were ordered to provide it weeks after the arrest. Had the prosecution actually reviewed the evidence in Griffin’s case at any point over the three weeks between the arrest and the June 15 court date, a copy of the video would still exist. Had anyone in Capeless’ office asked to review the video prior to the June 15 court date, prosecutors would have ended up with their own copy of the video.

How can Capeless, who is head of the Massachusetts District Attorneys Association, believe that his office “has acted fairly and ethically” despite not even attempting to review one of the most important pieces of evidence before bringing a case to court?  

In October, the Pittsfield police finally spent approximately $1,300 to send the hard drive to a data recovery firm in California, but the Griffin video “was determined to be unrecoverable, and is believed to be within a small percentage of corrupted data,” according to Chief Wynn. Soon after, Hochberg asked Judge Michael Ripps to either dismiss Griffin’s OUI case or prohibit the police from testifying about Griffin’s appearance, demeanor, and statements since the missing evidence would make it harder to impeach their testimony.

Ripps refused to sanction the DA’s office in any way for the video’s loss—even though he said the police showed “negligence” by failing to back it up. “There is no evidence that the police acted in bad faith or recklessly or wantonly disregarded their responsibility to preserve evidence,” he ruled. “Inadvertence and negligence by the police or the Commonwealth, does not shift the burden to the Commonwealth to show that the evidence was not exculpatory.”

While Ripps ruled against Griffin, the hard drive failure will continue to affect his OUI case. The judge’s ruling states that Griffin may attempt to use the police department’s negligence to establish reasonable doubt, and Hochberg said he intends to take the case to trial. Hochberg added that if Griffin is convicted, he will appeal and cite the judge’s refusal to sanction the DA’s office.

Ripps’ failure to sanction the prosecution apparently sent the message that negligence is acceptable. After we revealed the hard drive crash, Chief Wynn announced that the department plans to buy a new DVR system next year for more than $30,000. “This upgrade does not include any backup or redundancy.” But Wynn then pointed out that anyone who relies on technology will “experience periodic equipment failures,” highlighting the need for such backups.

In his ruling, Ripps cited a number of cases, including Arizona v. Youngblood, a notorious Supreme Court case that resulted in an innocent man spending nine years in prison—possibly the perfect illustration of why this way of thinking about due process is so wrongheaded.

In 1985, Larry Youngblood was convicted of sexually assaulting a 10-year-old boy who had mistakenly picked him out of a photo lineup. An appeals court reversed his conviction because police failed to refrigerate a semen sample, allowing it to degrade until it could no longer be tested to determine the assailant’s blood type. But the Supreme Court later reinstated Youngblood’s conviction, because it found he had failed to “show bad faith on the part of the police,” adding that the police’s conduct could “at worst be described as negligent.” In 2000, the state performed a DNA test on the semen sample, proving Youngblood’s innocence. Despite his exoneration, the Supreme Court ruling stands, and the high court has approvingly cited it a number of times since then.

Instead of the Capeless’ fair and ethical practice of prosecutors deciding whether evidence is important without actually reviewing it, Hochberg suggested an alternative. “Open file discovery would be nice,” he said, referring to the practice of prosecutors quickly turning over all evidence whether or not it’s requested. “There shouldn’t be a need for these motions [to provide evidence] … It should be mandatory and turned over immediately.”

We agree. In addition, courts should reject the ridiculous “bad faith” standard and focus on the rights of the accused. As Justice Harry Blackmun put it in his Youngblood dissent, “The Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try at a fair trial.”

“Broken Records” is a biweekly column produced in partnership between the Boston Institute for Nonprofit Journalism, DigBoston, and the Bay State Examiner. Follow BINJ on Twitter @BINJreports for upcoming installments of Maya and Andrew’s ongoing reporting on public information.