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Editor note: A 3rd pretrial hearing will be held tomorrow, Thursday, July 13, 1:30 pm in the courthouse. We hope to post a report on it before the scheduled beginning of the trial next week, perhaps beginning on July 17.
On May 25, a second hearing of the Whatcom 3 demonstrators who blocked the Guide Meridian during Donald Trump’s visit to Lynden in May of 2016, was held in Whatcom County with Judge David Grant presiding. The Whatcom 3 are Neah Monteiro, Josefina Mora, and Thomas Kaplan.
The purpose of the hearing was to review a motion submitted by the attorney for the Whatcom 3, Larry Hildes. The motion asked that the case be dismissed since audio/video evidence obtained by the Washington State Patrol’s (WSP) COBAN audio/video system in the three patrol cars at the scene was destroyed by the WSP. The COBAN system is reportedly always on when WSP patrol cars have their lights or siren on.
Judge Grant stated he was leaning toward dismissing the motion to dismiss the case due to deleted WSP video because the defense had no written affidavits or testimony about the video.
Hildes questioned Sergeant Rogers of the WSP about the deleted WSP vehicle-based audio/video. Rogers testified that in 2016 he watched about two hours of the COBAN video from the three patrol cars, but that in his opinion, the video was not useful in determining actions or audio of the incident.
When asked why the video evidence had been deleted, Rogers stated it was WSP policy to delete all video after 130 days if it was not evidence in a WSP criminal case. Hildes asked if Rogers knew the format of the recording, and whether the WSP had room to store one videotape. Rogers said he wasn’t sure but thought it might have been on a computer, and was deleted because of a “civilian employee.” Also, deleting it was WSP policy. Hildes inquired about the policy of destroying evidence from a criminal case that did not involve the WSP. Rogers said that was the policy unless it was a WSP criminal case.
Rogers also testified that officers were not required to point their COBAN equipped cars at an incident, stating that even though the incident was 70-100 feet away, their high-definition video wouldn’t pick up much. Hildes asked why they did not move their cars to record the event. Rogers replied that it is not WSP policy, they were “busy,” and it affected officer safety because they were waiting for backup.
Hildes asked Sergeant Rogers if he saw any other video cameras or body cams on responding officers from the Whatcom County Sheriff’s Department or Lynden Police. Rogers testified he saw no other video or body cams.
Hildes then called two witnesses. The first, a trained legal observer, Karen Weill, testified that she saw an officer with a large video camera on his shoulder with a belt full what appeared to be video camera equipment. She was unsure of the actual agency uniform color or name but stated that this man was video taping everything. Weill testified that she observed, took names and phone numbers but did not bring her own video cameras.
Weill also testified that a large angry man in his 60s was shouting at the Whatcom 3 and tried to yank one chained arm from a metal railing, possibly breaking the person’s arm in the process. Police were asked to help prevent the attack but none intervened. Witnesses moved to protect the protester from further assault. A uniformed videographer taped this activity; the officer is unknown.
Next, Josafina Mora of the Whatcom 3 testified that she, too, saw a uniformed officer closely video taping events.
Hildes summarized, citing the exculpatory nature of the deleted WSP and the fact that no officers responded to help the Whatcom 3 during the attack by apparently upset drivers. Hildes contended the behavior impeached the officers by showing bias in their actions and created a lack of credibility in their testimony. Finally, he reminded the court that two witnesses had testified to additional law enforcement video that has not been produced.
The county’s prosecutor noted that in Sergeant Rogers testimony, the COBAN video from the patrol cars didn’t show much in his opinion, and was not useful regarding the incident. The prosecutor also contended that alternate video already does exist, apparently referring to video shot by Democracy Now. Finally, the prosecutor argued it was the defense’s responsibility to show that the video material, which may or may not have been partially exculpable, was destroyed in bad faith.
Hildes countered that the Democracy Now video is not comparable to the complete videos from the WSP car mounted COBAN systems that have now been destroyed, or the video made by a uniformed videographer that has disappeared. Hildes contended that WSP Sergeant Rogers had no clue about his WSP COBAN video or how it works, where it was stored, or how it was stored. Hildes pointed out that the court does not know who actually deleted the WSP video and that Sergeant Rogers was only interested in the video as far as it showed proper procedure in driving up Meridian on the wrong side of the road. Rogers was barely aware that it was evidence in a criminal case.
Hildes renewed his motion to dismiss the case due to the destruction of exculpatory evidence of the WSP videotapes.
Judge Grant said he could not make the finding that the destroyed video would have exculpatory evidence based on testimony at this point.
Hildes motion was denied.