Milwaukee County Sheriff's video policy "unreasonable," appeals court says

By Gretchen Schuldt
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The Milwaukee County Sheriff's Department's policy of routinely deleting interrogation recordings after 60 days is unreasonable and "demonstrates bad faith through official animus," the state Court of Appeals said this week.

The three-judge panel for the District I appellate court affirmed Milwaukee County Circuit Judge Danielle L. Shelton's ruling suppressing Robert Lee Banks' confession to cocaine possession. 

The panel included Appellate Judges William W. Brash III, M. Joseph Donald, and Maxine A. White.

"Although we may hope that all cases flow smoothly through the justice system in time for a law enforcement officer to retrieve a recording in under sixty days, this evidence retention policy is unreasonably short," the panel said in an unsigned opinion.

Banks was the passenger in a car stopped by a sheriff's deputy for improperly passing a car on the right. Neither Banks nor the driver had a valid driver's license, so the deputy decided the vehicle should be towed. 

During a consensual search of the car, the deputy found a 9mm handgun. Both Banks and the driver were convicted felons and the deputy arrested them. During the subsequent personal search, the deputy found 2.53 grams of cocaine on Banks. The deputy also found more drugs in the car.

Banks was read his rights and, during a recorded interview, admitted to possessing the cocaine found on him. Banks was charged with possession of cocaine as a second or subsequent offense.

Banks sought the video recording during discovery and the deputy eventually "informed the state that the videos were unavailable," the panel said. The deputy said he was unaware that the video would be deleted in 60 days unless he exported it. 

Banks sought dismissal of the case based on the destruction of evidence. He alleged the written summary of the interview was inaccurate and incomplete and the destruction of the video meant he could not use it to dispute the Sheriff's Department's version of events. 

The state opposed the motion, arguing the there was nothing to show the deputy knew of anything in the video that could potentially help Banks and deliberately tried to hide it.

"The State asserted there was no bad faith, and at worst, it was negligent to not preserve the video recordings," the panel said. 

Shelton "concluded that while Banks had not shown 'that law enforcement deliberately attempted to suppress' the video recordings, there was a 'concession by the state of a policy that allows for the automatic purging of this type of evidence [which was] a clear display of official animus toward a defendant’s due process rights,' ” the panel said.

Shelton granted Banks’ motion to exclude the deputy's testimony about the interrogation interview. 

The panel in affirming the decision, found the recordings were potentially exculpatory. While Banks did not show an intent by the state to deprive Banks of helpful evidence, state law requires preservation of adult felony custodial interviews, the panel said.

"The statute does not contain a preservation requirement, but it would be illogical to compel the state to record custodial interviews without providing a means for defendants and the state to access that information," the judges said.

In addition, they said, the recording requirement leads to the reasonable inference that "the interviews themselves would be accessible during criminal investigations and prosecutions" and a policy that inhibits that access "defeats that purpose."