Teller sher­iff can’t ex­plain deputy’s use of body cam­era

The Denver Post - - NEWS - By Lance Ben­zel

TELLER COUNTY» Four months after a deputy’s un­de­clared use of a body­worn cam­era caused a mis­trial in Teller County, no one has been dis­ci­plined and the Teller County Sher­iff’s Of­fice hasn’t in­ves­ti­gated, Sher­iff Mike Ens­minger con­firmed.

Ens­minger told The Gazette an in­ter­nal in­ves­ti­ga­tion was stymied in part by a judge’s gag or­der bar­ring any­one at the sher­iff’s of­fice from dis­cussing the case, even among them­selves.

But that gag or­der was lifted Oct. 7, court records show.

The sher­iff said he wasn’t aware the or­der had been lifted un­til Dec. 19, when he con­tacted the judge di­rectly after a fol­low-up in­quiry by the news­pa­per.

“My hands were tied un­til I found that in­for­ma­tion out,” Ens­minger said, ac­knowl­edg­ing that the lack of an in­ves­ti­ga­tion means he can’t an­swer how wide­spread the prac­tice had be­come un­der his watch.

The sher­iff ac­knowl­edged that he had heard through “third par­ties” that the judge had lifted the gag or­der in re­cent weeks, but that he hadn’t re­ceived writ­ten no­tice and couldn’t act without it. In­for­ma­tion about the gag or­der’s lift­ing was read­ily avail­able in a court doc­u­ment called a minute or­der, which sum­ma­rized the judge’s or­der re­scind­ing it, the news­pa­per found.

Body cam­eras and the footage they cap­ture be­came part of the na­tional de­bate over po­lice tac­tics after a se­ries of well-pub­li­cized deaths of pri­mar­ily mi­nor­ity sus­pects or mem­bers of the public in con­fronta­tions with law en­force­ment of­fi­cers.

The out­cry those deaths gen­er­ated in­duced a push by de­part­ments across the U.S. to add body-worn cam­eras to their reper­toire to bet­ter doc­u­ment po­lice en­coun­ters, for the ben­e­fit of those on both sides.

But the ef­fort to in­tro­duce body-worn cam­eras in the Pikes Peak re­gion has met with nu­mer­ous snags, rang­ing from the in­ad­ver­tent de­struc­tion of footage in more than 1,000 cases at the Foun­tain Po­lice Depart­ment to de­lays in the Colorado Springs Po­lice Depart­ment’s ef­fort to sup­ply them to about 600 of­fi­cers.

The lack of an in­ves­ti­ga­tion by the Teller County Sher­iff ’s Of­fice over the un­de­clared body cam use comes de­spite in­di­ca­tions that more than one deputy used a body cam­era in some ca­pac­ity.

In a Sept. 19 e-mail ob­tained by the news­pa­per, Teller County pros­e­cu­tor Chris Sut­ton ac­knowl­edged that “deputies with Teller County Sher­iff ’s Of­fice may have ob­tained body cam­era footage dur­ing some crim­i­nal in­ves­ti­ga­tions which may have been not re­tained or (turned over) to de­fen­dants.”

Sut­ton’s e-mail did not pro­vide fur­ther de­tails, say­ing the is­sue was un­der in­ves­ti­ga­tion, and he couldn’t be reached for com­ment.

Lee Richards, a spokes­woman for the 4th Judicial District at­tor­ney’s of­fice, did not re­spond to an e-mail sent Fri­day af­ter­noon.

Un­der Colorado ev­i­den­tiary laws, footage gath­ered by of­fi­cers equipped with body-worn cam­eras must be pre­served and turned over to the de­fense. Fail­ure to do so can lead to mis­tri­als or cases be­ing dis­missed.

The Teller County Sher­iff’s Of­fice doesn’t have a means to store and dis­trib­ute body cam­era footage, and depart­ment pol­icy has for years pro­hib­ited their use, Ens­minger said.

The prob­lem first came to light in late Au­gust after Deputy Sanel Lilic tes­ti­fied at a trial that he wasn’t wear­ing a body cam­era dur­ing his ar­rest of Cole Sim­mons on charges of ve­hic­u­lar theft.

Lilic, who was hired in Jan­uary 2014, made the de­nial on the open­ing day of Sim­mons’ jury trial. When he re­took the stand later that day his ac­count changed — Lilic tes­ti­fied he’d for­got­ten he had been wear­ing a cam­era.

Lilic de­scribed be­ing fit­ted with the cam­era on the day of Sim­mons’ ar­rest as part of a “trial run by the agency” to see if the cam­eras were ef­fec­tive at night, the tran­script shows.

He told the court that he recorded footage of Sim­mons’ ar­rest and handed it over to a cor­po­ral, who in turn handed it to a com­man­der, who or­dered that the footage be de­stroyed be­cause deputies could be heard us­ing ob­scen­i­ties, a trial tran­script shows.

The ev­i­dence vi­o­la­tion led 4th District Judge Theresa Cis­neros to de­clare a mis­trial and spawned ques­tions by Sim­mons’ at­tor­ney, Cyn­thia McKedy, over the scope of body cam­era use by the of­fice.

“How long have they been wear­ing body cams? Have they been de­stroy­ing the footage?” McKedy asked. “How many other cases in Teller County have this is­sue?”

The deputy’s re­vised tes­ti­mony that the sher­iff ’s of­fice was test­ing cam­eras as part of a “trial run” was dis­puted by Ens­minger, who told the news­pa­per in Septem­ber that he wasn’t aware of any such pro­gram.

“No deputy of mine has ever been au­tho­rized to wear a body cam­era,” Ens­minger told The Gazette. “We don’t have a pi­lot pro­gram and never have.”

A Teller County sher­iff ’s com­man­der, Mark Mor­lock, is­sued a sim­i­lar de­nial when con­tacted by the news­pa­per in the fall.

Court fil­ings in the Sim­mons case iden­tify the com­man­der who or­dered that the footage be de­stroyed as 19-year vet­eran Ja­son Mike­sell, who left the of­fice April 15. Mike­sell couldn’t be reached for com­ment.

The doc­u­ments — a le­gal mo­tion filed by Sut­ton — say that Lilic had no in­put into the de­ci­sion to de­stroy the footage he had col­lected.

Lilic said the cam­era had been lent to the sher­iff ’s of­fice by Crip­ple Creek po­lice, and Mike­sell men­tioned that the cam­era had to be re­turned to Crip­ple Creek be­fore or­der­ing that the footage be de­stroyed, court records show.

In his fol­low-up in­ter­view this month, Ens­minger said Mike­sell’s de­par­ture had noth­ing to do with the case and that no deputies had been dis­ci­plined.

Ens­minger said he be­lieves that at least two deputies were wear­ing pri­vately owned cam­eras for train­ing pur­poses but that he wasn’t in a po­si­tion to con­firm a num­ber or say how many cases might be in­volved.

In the wake of the Sim­mons case, Ens­minger said he called a halt to the prac­tice by re­assert­ing the sher­iff’s of­fice’s pol­icy that no one is to use body cams.

Whether ev­i­dence was de­stroyed in other cases will be part of the fo­cus of the in­ves­ti­ga­tion, Ens­minger said.

“Now that we have a re­lease from court, we’re go­ing to do our in­ves­ti­ga­tion,” he said.

Asked when the in­ves­ti­ga­tion would be­gin, Ens­minger said: “We’re talk­ing about that now as a com­mand staff. The court case is go­ing on right now and we don’t want to do any­thing to in­ter­rupt the court case.”

Court records show that an ar­rest war­rant was is­sued for Sim­mons on Nov. 21 after he failed to ap­pear at a sched­uled hear­ing.

While Colorado law re­quires law en­force­ment agen­cies to pre­serve ev­i­dence in on­go­ing crim­i­nal cases, state law doesn’t oth­er­wise guide the use of body cam­eras. The ques­tion of how to use body cam­eras, and the le­gal obli­ga­tions to main­tain the footage, fall to agen­cies that elect to use them, Pa­tri­cia Billinger, a spokes­woman for the Colorado Depart­ment of Public Safety, said.

Ens­minger said his of­fice can’t af­ford to pur­chase cam­eras for its deputies in part be­cause they don’t have the tech­no­log­i­cal ca­pa­bil­ity to pre­serve the footage.

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