Since the Honolulu Police Department introduced body-worn cameras in 2017, it never established a clear policy about when it would release footage.
HPD is currently considering how it should handle the timing of body camera footage release, HPD Acting Chief Rade Vanic said last week.
“I understand the need for the public to know,” he said. “But at the same time, you need to consider the body-worn camera, just like any other piece of evidence, is evidence in a criminal case and investigation.”
In the meantime, Honolulu Prosecuting Attorney Steve Alm, whose office is investigating the recent police shootings and has copies of the videos, has proposed his own benchmark: He won’t release any evidence until he’s made a charging decision.
If he determines the officers didn’t do anything criminal, the evidence will be released in full within the next few weeks. If the officers are charged, the video will come out at trial and afterward.
Releasing videos before a charging decision is made creates the potential to poison the jury pool, Alm wrote in a Honolulu Star-Advertiser column last week.
The footage, “when shown in the media, often accompanied by opinions by commentators based on less than all the information, may lead viewers to pre-judge the facts of the case,” he said.
Local and national experts debate which approach is right.
The tension is between two valid public interests, according to Seth Stoughton, an associate professor of law, criminology and criminal justice at the University of South Carolina.
“There is a legitimate public interest in not tainting the potential jury pool,” he said in an email. “However, there is also a legitimate public interest in knowing about what officers do in the course of their jobs.”
Eugene O’Donnell, a lecturer at John Jay College of Criminal Justice who is a former New York City police officer and former prosecutor, said Alm is doing the right thing.
“A video gives you a piece of a more complicated puzzle,” he said.
O’Donnell feels videos should only be released once an investigation is complete. The footage can then be viewed in the context of all the facts, he said, preferably outlined in a public report that describes the state of mind of the officers involved.
Published in isolation, bodycam videos can raise more questions than they answer, according to O’Donnell. And taken out of context, footage can also promote the demonization of the police, who are already having a hard enough time recruiting as it is, he said.
Honolulu Police Commissioner Carrie Okinaga indicated at last week’s commission meeting that she understands Alm’s rationale.
“There is a reason why people try to do thorough investigations,” said Okinaga, who is also the University of Hawaii’s general counsel. “It’s to make sure that whatever happens at the end of it can be upheld.”
But as scrutiny of police intensifies following years of high-profile killings and intense nationwide protests last year, some are calling for footage to be released more quickly.
People don’t take the word of police at face value anymore, Police Commissioner Doug Chin said at the meeting. They want to see the situation for themselves and are no longer satisfied with hearing a matter is under investigation, he said.
“I know 10 years ago, you could say something like that and everyone would be like ‘Great, do your thing. We will wait patiently,’” said Chin, a former Hawaii Attorney General.
“But I think what’s happening now is, it’s 2021. And that is just the reality. People just have a different expectation, different feelings about the police.”
To Adam Marshall, a senior staff attorney for Reporters Committee for Freedom of the Press, the matter is really a question about Hawaii’s public records law.
Generally, he said government records are public unless they fall under specific exemptions, including those related to law enforcement activities or privacy concerns.
Using that framework, the Civil Beat Law Center for the Public Interest, a separate organization from Honolulu Civil Beat that advocates for government transparency, has filed suit to force the immediate release of the video showing the death of Iremamber Sykap, the 16-year-old shot after a police pursuit. The case is ongoing.
Marshall said it’s “troubling” that Alm’s office is withholding the footage for now and feels the prosecutor’s argument is not a good enough reason to deprive the public of important information.
The impact of evidence being released can be mitigated by jury selection, jury instructions or even changing the venue of an eventual trial, Marshall said.
“There are a number of ways to account for any pretrial publicity, and those doctrines have existed a long time,” he said.
Body camera videos are not simply pieces of evidence for prosecutors, Marshall said.
“They are part of what creates an informed democracy,” he said.
“They are evidence of what government officials have been doing or not doing and the public has a right – independent of government processes – to debate whether those actions were correct or incorrect, to be informed about what law enforcement officers are doing, and to contact their representatives or write news stories.”
There is no national consensus about when body camera footage should be released, and practices vary widely across the country, according to a map compiled by the Reporters Committee for Freedom of the Press.
A review of different jurisdictions shows that Honolulu is not the most transparent when it comes to body camera, but it’s not the least, either.
California passed a law in 2018 requiring all police departments to release body camera footage of “critical incidents” within 45 days of the event.
In most Colorado cases, if a complaint of officer misconduct is made, the agency must release all unedited video footage within 21 days. Any video that “would substantially interfere with or jeopardize an active or ongoing investigation” must be released within 45 days of a complaint being received, Colorado Public Radio reported.
Washington, D.C.,mandates that police release body camera footage no later than five days after a shooting.
Last year, Connecticut’s governor called for police agencies to release videos within four days.
Marshall noted that even when laws or policies are enacted, law enforcement agencies can always release material sooner.
In April, an Ohio police department made the “unprecedented” move of releasing body camera footage within hours of shooting and killing a 16-year-old who was allegedly threatening others with a knife, The Columbus Dispatch reported.
On the other end of the spectrum, North Carolina lawmakers in 2016 exempted all body camera videos from the public records law, and it’s up to a judge to release it on a case-by-case basis.
Stoughton, the South Carolina professor, said it’s useful to put the bodycam question into context: Prosecutors and police release video clips all the time. That includes bystander cellphone videos and store security footage that are often disseminated widely on social media and TV news, he said.
“And while the release of those videos may create some hurdles that the prosecutor’s office has to deal with, those hurdles are not insurmountable,” he said.
He noted that some of the most high-profile prosecutions of police in recent years, including the trial of Derek Chauvin for the killing of George Floyd, involved the pre-trial release of video.
“Yes, that can make a prosecutor’s job a little more difficult,” he said. “But sometimes a government actor has to work a little harder to balance conflicting public interests.”
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