Aging tech may result in absent evidence

By Alan J. Keays, VTDigger
RUTLAND — A recording device worn by the state trooper who pulled over a Rutland firefighter later charged with impersonating a police officer wasn’t working during that traffic stop — or any other stop that day, newly released information shows.

Such failures are happening more frequently as the devices near a decade in age and have exceeded their warranty, according to the Vermont State Police.

“The systems are an older model, and finding replacement parts is difficult to do since the manufacturer is no longer manufacturing the model that the State Police is using and will no longer support it after Dec. 31, 2017,” Scott Waterman, state Department of Public Safety spokesperson, said in response to questions.

“The microphone for the unit is currently not supported due to lack of available parts. We are expecting replacement systems very soon.”

VTDigger submitted a public records request in

September seeking “any and all” audio or video from Trooper Jonathan Hall’s traffic stop of Brent M. Garrow on Aug. 12 in Clarendon. The dashboard camera video showed the stop, but there was no audio from the trooper’s device.

VTDigger then filed a records request in October to determine if that was the only stop by Hall that day in which the device didn’t record audio. The information state police provided in response showed the trooper had five other traffic stops that day, and in each there is only dash cam video, with no audio from the trooper.

A problem with a state police recording device happens on average a handful of times a month, according to information Waterman provided. Several factors could lead to the audio device not working, from a dead battery to a broken microphone cord.

State police are replacing the existing WatchGuard units with the company’s latest version of the audio and video recording devices, known as the 4RE. State police need 213 of the recording units, with each one costing about $4,895. State police have already bought 76 with funding from the National Highway Traffic Safety Administration.

The agency is buying 53 more units this fiscal year using the same funding source. The agency then has one more year of NHTSA funding to buy additional units.

The new devices are expected to produce higher-quality recordings and will be under warranty for five years.

Rutland County State’s Attorney Rose Kennedy, whose office is prosecuting Garrow, said she couldn’t talk specifically about that case. According to the trooper involved, Garrow displayed a police badge after being pulled over in a civilian vehicle and indicated he worked for a local police department.

In general, the prosecutor said, she doesn’t see technological failures with police recording devices as a “systematic problem” or any different with state police than other law enforcement agencies.

“Whenever you introduce technology you’re going to have glitches,” she said. “It can be frustrating because we certainly would want to see that evidence or hear that evidence. There’s ways to proceed without it, and I think some glitches are, sadly, to be expected.”

Kennedy said cases can still be prosecuted, as they were before police began using recording devices.

“I think the tough thing is that jurors have come to expect it,” she said of police recordings.

Windsor County State’s Attorney David Cahill, who previously served as the executive director of the Department of State’s Attorneys and Sheriffs, agreed, saying it adds another element for a prosecutor to address in a case when the recording equipment fails.

“It opens a window into the potential for the conspiracy theorists to come out and say, ‘Maybe the police purposely deleted that part of the recording. Maybe the prosecutor deleted that part of the recording. Maybe there was something where that would have shown my client was innocent,'” Cahill said.

It’s frustrating to hear those arguments when it was just a case of old technology breaking down, he said.

David Sleigh, a criminal defense and civil rights attorney with an office in St. Johnsbury, handles a wide range of cases around the state, from drunken driving to murder. He said technological problems with recording devices arise with law enforcement agencies across Vermont.

“I wish I could tell you that it is an infrequent occurrence, but it’s not,” he said.

Sleigh said he often comes across police affidavits that say either a microphone wasn’t working, a dash cam wasn’t properly recording, or some other tech problem arose.

“There does not seem to be what we would call a zealous commitment to quality control for things that might provide exculpatory evidence,” he said, “as opposed to, for example, radar, which they calibrate at the beginning and end of each shift, and if it was broken it would be quickly repaired.”

In some cases, he said, recordings, or the lack of one, can be the most critical element to a case, especially when it’s the word of a defendant against the word of a law enforcement officer.

“Guess who gets believed?” he asked rhetorically.

The law, Cahill said, doesn’t require police to make recordings of their encounters with suspects out on the street, and the lack of recording doesn’t mean a case can’t be prosecuted.

In those instances, he said, prosecutors can look to see if recordings exist from any other officers who may have responded to the call.

“A backup officer’s microphone doesn’t capture everything, but it may capture just enough to dispel the conspiracy theories,” he said.

Cahill added, “We really haven’t had any cataclysmic events where the absence of audio or video footage has led to the death of a case. But I’m sure we will in the future.”

VTDigger sought the recordings of all of Trooper Hall’s traffic stops of Aug. 12 to see if he may have handled the incident with Garrow differently from others that day.

For all of Hall’s stops that day, the only audio picked up seems to come from a recording device inside the cruiser, and the sound is of either music on the radio or dispatchers communicating.

The audio is important in Garrow’s case to document what transpired between the two men before Hall let Garrow go with what he said was a warning for speeding. Hall initially said he pulled Garrow over for going 73 mph in a 55-mph zone.

In an affidavit, Hall wrote that Garrow displayed a police badge and indicated he worked for Pittsford. Hall wrote that he later learned that wasn’t the case, leading to the impersonation charge. Garrow once worked part time for the Pittsford department but was decertified in 2016, according to court records.

The video from the dash cam of Hall’s cruiser was taken from too far away to show whether Garrow displayed a badge.

Garrow pleaded not guilty at his arraignment Aug. 24. The case is set for a jury draw in January.

State police policy says a trooper is expected to test the recording system at the beginning of a shift to make sure it is working. If it is not, the policy says a trooper is required to notify a supervisor.

State Police Lt. Michael Studin, who oversees the Rutland barracks and is Hall’s supervisor, said Hall did notify a supervisor at the beginning of his shift on the day of Garrow’s traffic stop that the recording system was not working properly.

“The trooper has tried on multiple occasions to get it fixed by using alternate exterior microphones, but we are running low on spares because the manufacturer is no longer making that model,” Studin said.

“It’s a problem because we like to record all the stops that we can. That is what the policy dictates, and that’s what we try to adhere to, but we can’t control the malfunctioning of the systems.”

Cahill said he didn’t think problems with recordings from state police, over the course of a year, were any different than from any local police department.

“We’ll always have a handful of examples where the technology didn’t work for whatever reason,” he said.

Cahill said one of the biggest problems he sees with recording equipment is that no one is looking at it from a systemwide perspective. There are many entities that need to be able to use those recordings, including police, prosecutors and defense attorneys.

And all the parties, he said, are not operating with the same technological systems.

“No one has thought about the system as a cohesive whole and how technology needs move through the system,” Cahill said.

Although Garrow ended up facing a criminal charge, the initial encounter between him and Hall ended without any ticket written.

“The operator was treated the same as anyone else,” Lt. Studin said of Garrow. “This gentleman ended up being arrested (later). Most people don’t end up getting arrested.”

Studin said several factors are taken into account when making the decision to issue a ticket or a warning.

“Sometimes it’s based upon their prior history, if they haven’t had any motor vehicle violations over a certain amount of time,” he said. “It’s the discretion of the trooper to give a warning versus a ticket. Everybody gets those same considerations.”

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