This is not the only recent case of the La Crosse Police Department failing to preserve digital evidence. In a recent high-profile case defended by this attorney (client agrees to my describing these events), the La Crosse Police Department failed to preserve a supposed interview of a confidential informant ("CI") who allegedly blamed my client for being involved in an armed robbery pulled off by the so-called "Get Money Boys". Not only that, the police temporarily lost the defendant's recorded statement and admitted losing the recorded statement of a co-defendant. Furthermore, of the several police vehicles that responded to the crime scene with their video cameras running, not one had the audio component on to record the conversations with the victims at the scene. The microphone can be easily turned on by the officer.
Charged with Armed Robbery, my client ended up pleading no contest to two misdemeanors relative to the alleged home invasion, getting probation and a short term on electronic monitoring. The Assistant District Attorney ("ADA") prosecuting that case blamed the very good plea deal on the destruction of the recorded CI interview. In my opinion, the outcome of that case was justified by the overt lack of evidence against my client. Nonetheless, I agree with the ADA that the situation created not just an embarrassing situation for the police and DA's office, but also an opportunity for suppression and/or dismissal, or at least, a very good opportunity to create doubt during a jury trial.
The fact is, over the last several years, I and my colleagues have experienced numerous occasions of the La Crosse Police Department, the Onalaska Police Department, and other agencies, overtly failing to preserve video and/or audio-recorded evidence. It usually happens because police officers fail to take the simple steps necessary to capture or preserve the evidence, including, failing to activate the video in the squad car, turning on the video but not the microphone, failing to point the camera in the direction of the event, or failing to properly download the audio/video files. When the video cameras do work, it often seems very selective. When they want the camera to work, it usually works.
The La Crosse and Onalaska Police Departments have spent a ton of money to equip the patrol cars and officers with the equipment they need to record these events. To be sure, this can be a very important way to protect the police. In fact, the policies and procedures adopted by the La Crosse and Onalaska Police Departments have specific provisions requiring the officers to maintain and use the equipment to capture and preserve all pertinent audio-video evidence. These provisions makes the officer personally responsible for doing so. In short, there is no excuse for failing to capture and preserve this evidence, but it happens ALL THE TIME.
Seeing is believing. Video can be the most effective evidence in a case. Indeed, I have tried cases almost solely based on the failure of police to capture or preserve audio-video evidence they maintain is harmful to my clients, including field sobriety tests and admissions supposedly made by defendants. Why should the police be allowed to convict someone based on evidence they could have easily--and were supposed to--record, but failed to for no good reason? Of course, when questioned about it at trial, the offending officer conveniently says, "'Mr. Defendant' is lucky I didn't record it, because you would see that it is exactly the way I say it was. " No officer should be able to get away with that.
As an OWI/criminal defense attorney, I just want to see what really happened and/or was said, for better or worse. So, La Crosse and Onalaska police (and others): Shape up!