As discussions of police body cameras have swirled publicly, the city of Mobile has been quietly taking action to override one of its own judges for prohibiting prosecutors from “mentioning or referring to anything” captured in footage of an arrest in which they failed to produce a video.

While the issue is rooted in a misdemeanor case, there’s concern a ruling from Mobile Municipal Court Judge Shelbonnie Hall might impact what evidence prosecutors are allowed to introduce in future cases where body camera footage wasn’t recorded or isn’t available.

In January 2016, Terry Druckenmiller was charged with driving under the influence, and there’s no dispute that his arresting officer was wearing a body camera at the time. Druckenmiller’s attorney, L. Daniel Mims, claims the footage from that camera first became an issue around four months later, when a city prosecutor mentioned that “there may be dash camera or body camera footage.” As such, Mims filed a motion requesting a copy.

During a hearing about that request, the arresting officer seemed to acknowledge the existence of some kind of footage. In excerpts from a June 30, 2016, transcript, the officer is quoted as saying, “I don’t have any footage. I asked my supervisor for it and he said he couldn’t release it to me.” A city prosecutor followed up by adding, “Yeah, certain protocol.”

Despite those comments, a subsequent brief filed by city prosecutor Cherlina P. Monteiro seems to suggest the footage from the officer’s camera might have been deleted or may have never been recorded at all, which would appear to violate MPD’s internal body-camera policies.

“A search of the MPD’s data storage determined that no video footage existed and/or ever existed,” Monteiro wrote. “If the officer’s camera was operational, and ‘if’ it recorded any of the events on January 19, 2016, by April 19, 2016, it was no longer available.”

Monteiro explained that “once the MPD’s computer data storage reached full capacity, new video feed recorded over old data.” Because the department doesn’t review or save all of the footage it collects, Monteiro wrote that “no one can state what, if anything, was captured by the arresting officer’s body camera.”

The behind-the-scenes discussion has been occurring as the city has defended against criticism for not releasing certain body camera footage, and in some cases not recording any.

While Mobile County District Attorney Ashley Rich does not prosecute municipal offenses, she previously told Lagniappe body camera footage is the same as any other piece of evidence collected in an investigation. Rich has also directed all law enforcement agencies not to disclose video footage to the public until it has been submitted as evidence in a trial.

However, when no such evidence could be produced for Druckenmiller’s trial, Mims filed a motion to prohibit any testimony related to anything that could have been seen in footage from the arresting officer’s body camera, if such footage ever actually existed.

In December 2016, Hall granted that request — prohibiting prosecutors from “mentioning or referring to anything captured on video by the body camera they failed to produce.”

Mobile County’s Government Plaza.

While Monteiro declined a request for comment, briefs she filed indicate there was at least some concern Hall’s order might set a precedent. She suggested complying with Hall’s order in future cases would “require untold man hours” from MPD and could potentially make the municipal court responsible for reviewing body camera footage and storing any pertinent data.

With those concerns, the city went above Hall’s head and petitioned the Mobile County Circuit Court to review her ruling. Records indicate the petition was filed the day before Druckenmiller’s trial was to restart. Now it’s on hold until a decision on Hall’s ruling is appealed in circuit court.

According to Monteiro, “barring the city’s officer from testifying” at Druckenmiller’s trial would be “tantamount to dismissal of the city’s case.” She also called Hall’s ruling an “abuse of the trial judge’s discretion” and “a gross disruption in the administration of justice.”

“[It] would act to require all police interaction with the public resulting in a charge of a violation, including petty crimes such as ‘not wearing a seat belt,’ to only be prosecuted if the city recorded the event,” she wrote. “[The city would be required to] produce the recording for the defendant’s ‘fishing expedition’ to determine whether there is any possibility that ‘potentially’ exculpatory evidence ‘may’ be captured.”

Hall’s ruling might seem unusual, as DUI cases often rest heavily on officer testimony, but it’s not unprecedented. In October 2015, Pennsylvania saw a similar outcome when an officer was barred from testifying in a DUI case after failing to preserve dash cam video from the incident.

While the city’s request to the circuit court could resolve the issue, it was not filed immediately, and the timing seems to have raised even more concerns among Druckenmiller’s defense team.

On the original trial date, March 9, Hall happened to be on vacation, which left Judge Holmes Whiddon handling the cases on her docket. According to Mims, the city “vehemently argued” for the trial to continue as scheduled before Whiddon reset it for after Hall’s return.

Then, the day before that trial started, the city made the move to petition the circuit court — a series of schedule changes that have raised accusations of “judge shopping.”

“Although the city was prepared to have a trial in front of Judge Whiddon on March 9, the placement of the trial back onto Judge Hall’s docket apparently warranted [circuit court intervention],” Mims wrote. “The city’s actions are tantamount to judge shopping. It is evident that the city would have proceeded with the trial of the defendant had the case remained on Judge Whiddon’s docket.”

So far, none of those factors have been addressed in circuit court, though Judge Jay York is expected to issue an order from a July 26 hearing sometime in the near future.

Either way, the decision could have a lasting impact as Mobile — a city where “police use of body cameras is in its infancy” — continues to figure out how best to use this new technology.