A judge has dismissed an attempt by the city of Mobile to override a local court ruling prohibiting a police officer from testifying in a criminal trial because he failed to capture and preserve footage of the defendant’s arrest on the body camera he was wearing at the time.

As Lagniappe reported in August, Municipal Court Judge Shelbonnie Hall prohibited local prosecutors from “mentioning or referring to anything captured on video by the body camera” worn by the Mobile Police officer who arrested Terry Druckenmiller for DUI in 2016.

According to MPD’s own body camera policy, officers are supposed to “record all contacts with citizens in the performance of official duties” and are instructed not to stop recording an event until “all arrests have been made.”

It’s unclear if that happened in this case, as prosecutors were unable to produce any footage of the arrest, either because it was never recorded or was deleted after the fact.

Druckenmiller’s defense attorney, L. Daniel Mims, has argued the footage should have been collected and preserved as evidence. City Prosecutor Cherlina P. Monteiro has explained in court that “once the MPD’s computer data storage reached full capacity, new video feed recorded over old data” — meaning the video was likely lost, if it ever existed.

Based on a Supreme Court ruling in Brady v. Maryland, prosecutors are required to provide the defense with any evidence that could be “exculpatory,” meaning that if any evidence favorable to a defendant is suppressed, it could constitute what is commonly referred to as a Brady violation.

In short, Monteiro argued that because there’s no way of knowing what happened on the video of Druckenmiller’s arrest, it would be impossible to determine whether anything on that video could have been “exculpatory” and, thus, required to be turned over as “Brady” material.

She went on to suggest that following Hall’s ruling in the future would mean the city couldn’t prosecute any criminal charge unless the event in question was recorded, calling the defense’s request to see the video without knowledge of what it shows a “fishing expedition.”

However, Mims claims that no matter what video taken at the scene might have shown, his client would be entitled to it under Rule 16 of the Alabama Rules of Criminal Procedure, which give defendants the right to inspect “any written or recorded statements” made to law enforcement.

Because of that, Mims said, his client is entitled to any recording of any statements he made to his arresting officer. In a typical DUI stop, an officer might ask, “Have you been drinking?” and a driver might respond by saying things like “yes,” “no” or “I’ve had a few” — all statements Mims believes could have been caught on video the night of his client’s arrest if the officer had followed MPD’s policy on body cameras.

In a previous interview, Mobile County District Attorney Ashley Rich said that, in the context of an active investigation, prosecutors view body camera footage the same as any other piece of evidence collected, an approach Mims agrees with. However, he said, if it is viewed as evidence, it should treated as evidence, preserved and made available to both parties at trial.

With Hall’s ruling siding with the defense, the city of Mobile decided to petition the Mobile County Circuit Court to review her actions — an attempt that was ultimately stopped short when Circuit Judge Jay York tossed out the city’s petition in late August.

There was at least some concern about Hall’s ruling impacting future cases where body camera footage isn’t recorded or preserved, but Mims said he isn’t sure about that, adding it isn’t uncommon for two judges in the same court to reach different conclusions.

To have any sort of “precedent-setting” effect on cases in Mobile, Mims said, the issue would need to be appealed out of municipal court again and into the circuit court, and eventually to the appellate courts of Alabama’s Unified Judicial System.

Mims said he also isn’t sure whether the dismissal of the city’s petition means York or the circuit court agree with Hall’s position on police body cameras. Judges typically have the authority to decide what evidence is deemed admissible at trial, and Mims said objections to those decisions are something higher courts only review under special circumstances.

Either way, York’s actions have sent Druckenmiller’s DUI case back to Hall’s docket, where an upcoming trial has been scheduled for Sept. 26. Unless dictated otherwise, Hall’s previous order barring the arresting officer’s testimony will be in effect.

In the meantime, the city of Mobile is continuing to fight another legal battle over police body camera footage. Filed by Fox10 (WALA-TV) in June, that lawsuit deals with how much access members of the public should have to footage captured on the body cameras, which they paid for.

While Fox10 initially sued to force the disclosure of MPD’s written policies on body cameras, the focus of the suit has been redirected since those policies were released. Now, the station’s legal team is focusing on footage from an interaction that occurred with students from McGill-Toolen Catholic High School and an unidentified MPD officer last fall. While painting the midtown cannon after an annual football rivalry, students were pepper-sprayed by the officer.

The police chief at the time publicly apologized for that incident, yet despite interest from parents, the press and the general public, footage from the responding officer’s body camera has never been released publicly. Fox10 is once again seeking that footage along with any correspondence officials had related to the film and the media’s repeated attempts to obtain it.

The city has yet to respond to the amended complaint in the case.

Ultimately, MPD’s practices for releasing body camera footage may hinge on an opinion of the Alabama Attorney General, which city officials requested in July. In Mobile last week for an unrelated event, Attorney General Steve Marshall made no mention of the pending request.