RichardKenner

The tricky area here is "chain of custody". In most cases, for evidence to be admissible, you need to be able to show that it really was the piece of evidence. If you recover a bullet from somebody's yard, you have to be able to prove that this is the bullet that you bring into court. You do this by having the person who found it testify what they did with it and showing an unbroken chain leading to it being brought into court.

Here, we have a video that "suddenly" showed up a year after the event. That would be plenty long enough for somebody to do extensive CGI work and completely fabricate the video. Because the only person who "found" the video was the defendant, there'd be little way to refute that claim. It sounds like there was a quid pro quo here: the prosection agreed not to challenge the authenticity of the video and the defense agreed not to get into the issue of it being originally deleted.

The problem is that merely being acquitted at the end doesn't come close to a "wrongful arrest". The classic wrongful arrest has occured in NYC in years back. It's legal for a woman to be topless in NY state, but many police don't know that. Several women were arrested for it and sued the city for wrongful arrest and settled for six-figure awards. But in that case, there was no question of exactly what they did and the legal situation.

Here, there were so many people involved that getting a solid understanding at the scene of exactly what had happened and what, if any, laws were broken, was hard. Yes, the police shouldn't have arrested him, but the standard for "wrongful arrest" is higher than that.

pmocek

Imagine being a defense attorney trying to convince your client that having the prosecution drop the case prior to trial would be just dandy when your client really wants to go to trial and get some vindication. Let's say he had a video that contradicts what's in the criminal complaint -- signed under penalty of perjury -- as well as what was said in non-sworn witness interviews, and would presumably be said repeatedly on the witness stand. "If you go to trial, your odds of conviction will rise infinitely, and our focus is on you avoiding conviction," you might say. You'd probably wonder how the prosecution could possibly change their story to stitch together their witnesses' statements, the charges, and what is shown on video, and think they'll likely drop the case. Hopefully, your client would consider the potential effect of his going to trial on people he cares about and agree to provide the video to the prosecution.

bdschobel

I suspected as much, but nobody would confirm what happened during the trial. This does seem like truly egregious conduct by the police department, even if it's impossible to learn which individuals are responsible. I was paying close attention when both sides stipulated as to the validity of the evidence to be presented, so the prosecutor didn't dispute that the tape is the one that Phil took at the airport. If he had not stipulated that, then we would have had some interesting testimony regarding how Phil came to have it.

Bruce

This is a bit of a simplification, but rules of "discovery" generally require evidence to be shared by both sides before the trial, to avoid surprises. There is an exception for rebuttal evidence, but the need to present it could not have been known in advance. The existence of the videotape is what caused the postponement in December 2010; the prosecutor needed time to study it.

Bruce

I share your theory.

Bruce

pmocek

It's on TSA's Web site: http://www.tsa.gov/assets/pdf/TSA_TIVF_Form_2301.pdf [EDIT: That's a mistake. We showed him the form from http://papersplease.org/wp/wp-conten...checkpoint.pdf.]

Ari

I'm sure it was quite a surprise . . .

I heard that part (that is the only part of the trial I listened to since I can pretty much picture how the rest of the trial went).

I gathered that previously from listening to that audio. My question is if it came up in December when the prosecution asked for more time-- was the fact that the video had been deleted brought to attention of the the court or DA at that time?

And that "someone" essentially will do it again if s/he gets the chance.

In other words, it never really occourred to anyone that they'd actually go forward with the case upon finding out the video was recovered?

pmocek

I assume that it was brought to his attention when he read the police file, which includes:

When we voluntarily notified them of the existence of the video and provided a copy, we knew they would be likely to press on, but would be much less likely to do so than before they saw what really happened.

There were no related back-room deals. The agreement made was made in open court.

The prosecution deciding to introduce the video was a welcome surprise. It seemed likely that we'd use it as rebuttal evidence but because the state was going to introduce it, we got to discuss it in opening arguments.

doober

This is the form that Breedon was claiming is SSI? Or is it just similar to said form?

fishferbrains

A quick question for the computer geeks out there, and you know who we are

Is it possible to determine the time/date when a "file delete" operation occurs on a device? Does it depend on the device?

If it ever became an issue, it would seem it would be critical to determine when the event occured in the chain of custody. This might be repeated in future events, so there's some relevence to this question.

IslandBased

I am wondering if there will be an Internal Affairs investigation into the tampering of Phil's video. The possibility of tampering could color any similar court cases that hinge on video evidence, and cause other cases to be retried. The Prosecutor is probably furious about this issue. If this turns out to be a systemic problem in the Police Department or just the airport unit, I'm sure there will be a massive shake up.

ND Sol

I don't think this is the form as it appears to be the one that is sent in for redress when your name is on the watch list. I don't believe it is the one used at a checkpoint for verification of identity.

ehasbrouck

That's the form you are asked to submit with a TRIPS "redress" request. The form used for "ID verification" at the checkpoint is different and simpler. The version Breedon was questioned about at trial was the one from:

http://papersplease.org/wp/wp-conten...checkpoint.pdf

He said it didn't exactly match the *current* form (although in fact that version originally came from the TSA in 2008).

If anyone has the current form (for example, if you were given it to sign, but didn't sign it on the spot and and took it to consult your lawyer before signing under penalty of perjury), please share.

T-the-B

I have a question for the lawyers on this board.

Assume for the sake of argument that Mr. Mocek plans repeated trips to ABQ and that he has concerns about retaliatory action by Mr. Breedon or Officer Dilley. What would be the likelihood of a successful petition for a restraining order requiring those individuals to maintain a distance of, say 25 feet, from Mr. Mocek and to refrain from any participation in his future screening? Will a court issue a restraining order against an individual that would restrict the exercise of his occupational duties?

RichardKenner

Nope: that's an unrelated form, used for applying for a Redress.

For the record, I didn't mean to imply that there was: I was referring to the statements in open court.

I've heard it said that if you have something that you will go against you, it's best for you to introduce it. Perhaps that's why they did it.

IANAL, but I'm pretty sure that the chances of that are precisely zero. The government would easily argue that these people were misinformed as to the law and rules, are now properly informed, and there's absolutely no reason to think that doing the same thing would produce the same result.

pmocek

Gah! Richard was correct. Thanks for correcting me, Edward.

The one I referenced is neither.

Right. He testified that his form (the one he was concerned about me photographing) uses a different typeface and has some additional check boxes than the one we showed him in court.

I second that, though I recommend not sharing it through me.

I wish someone would help us test whether or not that's the case by traversing the security checkpoint at ABQ with a video camera rolling. I don't know what the odds of coming across Mr. Breedon or Officer Dilley while doing so are, but it would be interesting to discover how others there react, as well.

danl08

Were they really trying to say that since the typeface was different it made the form SSI? How would the typeface impact someone being able to attack an airplane or not?