Prosecutors say ethics rules limit release of police body camera video

While it was being crafted and considered in the Statehouse, Indiana’s police body camera law brought a lot of public interest and at various times public outcry. But as the new measure gets ready for action, prosecutors say the Rules of Professional Conduct restrict them from releasing the recordings.

House Enrolled Act 1019, which takes effect July 1, does not mandate law enforcement wear video recording devices. Instead it provides guidelines for their use, such as when the cameras should be turned on and how long the videos should be stored.

Although the law also requires victims and family members of victims be allowed to view the recordings, the decision on whether to release the footage to the public is left to the discretion of police.

However, the Indiana Prosecuting Attorneys Council points out when the video is part of a criminal investigation or criminal case, the release decision falls to prosecutors. And they are bound by ethical and evidentiary rules that restrict their statements and release of materials while a criminal proceeding is ongoing.

 

Hoosier State Press Association Executive Director Steve Key argued the prosecutors’ stance is contrary to the intent of the law. The Legislature, he said, meant to “move the needle away” from giving law enforcement total discretion over whether the public can see the video.

Now prosecutors may choose to not release the video until after the trial, which could be a year or more, and some may wait until the appeals process has been exhausted, Key said. In the meantime, the public does not have a complete picture of the incident. Moreover, police accountability becomes blunted because the public cannot get access.

IPAC Executive Director David Powell said he brought up the issue of prosecutorial conduct when he testified during legislative committee hearings. While legislators and the public may not have understood the distinction as the bill was going through the Statehouse, he said he believes the author did.

Hartford City Republican Kevin Mahan, the representative who carried the bill from the summer study committee and introduced it in the Legislature, said he was unaware of the prosecutors’ view until recently when he received an email from Key explaining the situation.

Similarly, Mahan envisioned that tensions between police and the community could be exacerbated if prosecutors blocked the release of a video.

“I don’t think prosecutors are interested in causing that,” he said.

 

Not on a ‘hunch’

As Mahan explained, the body camera bill was not pulled together “quickly and on a hunch.”

The issue of police wearing body cameras was first examined by the 2015 Interim Study Committee on Government, chaired by Sen. Rodric Bray, R-Martinsville. The committee devoted two days to testimony on the matter and eventually approved draft legislation which became the bill that Mahan introduced.

In its original form, the measure sparked opposition because it was seen as very favorable to law enforcement. If police refused to release the video, the individual or group requesting the recording had to carry the burden of proof in court as to why the footage should be made public. In addition, the bill did not allow the requester to recoup attorney fees or court costs.

When the bill reached the Senate, it was amended in response to the concerns. The burden of proof was shifted to the police and the requestor could get reimbursed for time and effort if the denial was overturned.

Criminal defense attorney Andrew Baldwin of Baldwin Kyle & Kamish P.C. in Franklin applauds the new law, saying it provides a “terrific protection” for the public. He sees the body camera legislation as an extension of the measure that mandated police interrogations are recorded.

These kinds of recordings, he said, help solve cases by showing what actually happened, which can then make plea negotiations go much more smoothly. When a police office says one thing and the defendant says another, the video can clear up the dispute.

“Body cameras allow for the truth to come out,” Baldwin said.

The new law also gives better guidance to police departments about releasing footage than the Indiana public records law, said Krista Taggart, corporation counsel for the city of Greenwood. Under HEA 1019, law enforcement knows it has to keep the videos for at least 190 days and can identify which individuals should be obscured if the recording is publicized.

Greenwood has had media requests to see the body camera videos of police administering Narcon to drug overdose victims. Taggart interprets the new law as not requiring those recordings to be released because the officers are performing duties other than law enforcement.

Lose license to practice

Mahan sees the body camera videos as being a good investigatory tool, public safety tool and police accountability tool. Yet he acknowledged the public’s right to know must be balanced against an individual’s right to privacy.

Indiana is not alone in trying to balance transparency and privacy. The question of when to release the body camera video has come before courts in other states.

Recently, the Ohio Supreme Court heard arguments on when dash camera video should be released. The dispute is linked to the shooting by a University of Cincinnati police officer of an unarmed motorist in July 2015. The Hamilton County, Ohio, prosecutor did not release the recording until nine days later, when the grand jury indicted the officer.

In State of Ohio, ex rel. The Cincinnati Enquirer, et al. v. Joseph T. Deters, Hamilton County Prosecuting Attorney, 2015-1222, the prosecutor claimed the video was exempt because it was part of an investigation and that releasing it would have violated the defendant’s Sixth Amendment right to a fair trial. News outlets argued the video is a public record, not an investigative tool for law enforcement, and should be made available upon request.

Powell does not believe that prosecutors keeping video out of public view during a criminal investigation hurts transparency. He noted sometimes clips help resolve a criminal matter, and other times they just raise more questions.

What he does not question is the penalty prosecutors could face if they release the video prematurely. Powell said Rules of Professional Conduct 3.6 and 3.8 are clear about releasing evidence before a trial. Violating those provisions could put a prosecutor before the Indiana Supreme Court Disciplinary Commission.

He pointed to former Marion County Prosecutor Carl Brizzi, who was publicly reprimanded in 2012 for statements he made in 2006 about two defendants charged with murder. The Indiana Supreme Court found that Brizzi’s assertions that one of the defendants, Desmond Turner, deserved the death penalty and that the evidence was overwhelming, violated Professional Conduct Rules 3.6(a) and 3.8(f).

Prosecutors, Powell said, would like to get information out to the public, but they are prohibited from doing so by the rules.

“Prosecutors don’t want to lose their license (to practice law) to make the local newspaper happy,” Powell said.

Key plans to meet with the Disciplinary Commission to try get a little guidance for the prosecutors. He is hoping the commission will tell the prosecutors they will not be disciplined for releasing body camera video.

If the commission does not offer a solution, Key said the next step may be returning to the Legislature to get a fix.

Still, legislators might be reluctant to tread into judicial territory. While Mahan said the Statehouse could tweak the law during 2017 General Assembly session, he noted he respects the separation of powers and would never attempt to trump another branch’s purview.•