State lawmakers are poised to consider a measure that could cost some localities hundreds of thousands of dollars to pay for more attorneys to review police-worn body camera footage. But the prosecutors charged with reviewing the footage don’t agree on their responsibilities.
The inconsistency ushers questions of whether the extra lawyers are even necessary. Others suggest a statewide guideline to provide clarity for what one commonwealth’s attorney called uncharted territory caused by the technology rolled out across the state in recent years.
Hundreds of thousands of police officers have started wearing body cameras as the technology has become cheaper. Grants and millions of local tax dollars paid for Richmond-region law enforcement officers to be equipped with the cameras, which were billed as a way to increase transparency and accountability.
Some argue that if localities decided to use body cameras, then it should be up to local elected officials to find the money to support the attorneys who use the footage in court. Others say that before the money is spent, there should be greater scrutiny of how much time lawyers are spending on the footage in the name of meeting their ethical obligations.
The toll that reviewing the footage from those cameras would take on local prosecutors’ offices was either overlooked or ignored by the vast majority of local elected officials, Virginia Beach Commonwealth’s Attorney Colin Stolle said. Stolle, also a member of the Virginia Association of Commonwealth’s Attorneys, in January successfully pitched the state budget measure to Senate Majority Leader Tommy Norment, R-James City.
“It’s a complete game changer when it comes to prosecution,” Stolle said. “I don’t know of a single commonwealth’s attorney who doesn’t support body cameras. But the funding needs to be thought of from the beginning.”
Norment added an amendment to the Senate’s version of the state budget that would require localities to hire an additional entry-level assistant commonwealth’s attorney for every 50 body cameras deployed by police. It’s the same agreement that Stolle and the Virginia Beach City Council came to this past budget season. It is expected to go before the Senate Finance Committee when lawmakers return to town for the budget.
The rule would mean Chesterfield County — home to one of the largest prosecutor’s offices in the state — would need to pay $800,000 to $900,000 to hire eight more attorneys at Commonwealth’s Attorney William Davenport’s office.
County leaders have balked at the cost, sparking a war of words between the elected leaders in recent months. Davenport has argued that the hours of footage his staff is now required to watch has increased their workload beyond a critical point.
Board of Supervisors Chairwoman Dorothy Jaeckle has argued that Davenport didn’t provide sufficient data to prove his case for more money and that the county supplies more than half of his budget even though it is a state-funded constitutional office. County leaders now are emphasizing the state’s underfunding of the office.
Caught in the crosshairs are the body cameras themselves. The dispute has led the new police chief to reconsider when police officers should turn on the cameras and which officers should carry them.
But not all of Davenport’s counterparts interpret the ethical obligations of attorneys the same way when it comes to body camera footage. Just south of Chesterfield County in Colonial Heights, for example, prosecutors don’t have to watch as much footage or redact privacy information from the videos like they do in Chesterfield.
Without a guideline, those approaches vary across the state, and so do the staffing needs of the offices.
The question then becomes: Do commonwealth’s attorneys need the extra staffing they seek?
For Stolle, there isn’t a question. He said he believes prosecutors are ethically obligated to watch all body camera footage.
“If there is information beneficial to the defense, I have to let the defense know,” Stolle said.
And he thinks the local elected officials should pay the bill. He said the tension around the subject arises from the reluctance of local elected officials to pay more to support state constitutional offices.
But Brandon Garrett, a professor at the University of Virginia School of Law, was skeptical that the obligation to hand over information to the defense during the pretrial process known as discovery was causing that much more work.
“There’s always limited resources. They may be using the cost of discovery to get more hiring on their end,” he said.
The real conflict, Garrett suggested, is that some prosecutors are reluctant to see new technology inadvertently broaden a narrow discovery process the state has long operated under.
The other main question, he said, is whether commonwealth’s attorneys should continue to prosecute the same number of cases. Starting May 1, Davenport’s office curtailed the number of misdemeanors prosecuted when the budget season ended without him getting more staff.
Prosecutors should routinely share unedited footage with defense attorneys, Garrett said. For privacy concerns, defense attorneys could sign an agreement.
In Chesterfield, prosecutors are watching footage and redacting privacy information like addresses and witness information before handing it over to defense attorneys.
“I warned the county government that the implementation of [body cameras] would create an even greater burden on my office, and that any decision to use the devices, especially in such huge numbers, would need to be accompanied by extra funding for my office so that the hours and hours of video from almost every arrest could be downloaded, reviewed, redacted, copied and disseminated as appropriate,” Davenport recently posted to the county website.
Over a four-month period beginning last August, Davenport’s office handled a monthly average of 1,064 videos containing 621 hours of footage, or more than 26 hours of video per attorney. That’s nearly a full workday each week. Those figures include videos related to requests by defense attorneys in pending cases, but not the time it takes prosecutors to review each video and redact victim and witness information from them before providing them to defense attorneys, Davenport’s office said in an email to Chesterfield’s Board of Supervisors last December.
“I think we are all trying to do our best to comply with the discovery obligations and with all the additional data that now has to be considered in jurisdictions that have body-worn cameras. I think unless and until there is some sort of guidance, then I think offices are going to have some nuances,” said Chesterfield Deputy Commonwealth’s Attorney John Childrey. “I think the additional burdens would affect offices differently depending on how many attorneys they have. I think reasonable people could come up with different procedures.”
In Colonial Heights, Commonwealth’s Attorney Gray Collins placed limits on the footage his prosecutors watch to stay within budget constraints. His office hasn’t increased staff since body cameras rolled out five years ago. He also feels his approach is ethically sound.
“I think everybody who has body cameras would like more staff,” Collins said. But money is limited, he added.
In the city, prosecutors are required to watch video for felony cases. In most other cases, the prosecutor can choose whether to watch the footage.
The office also routinely shares unedited footage with defense attorneys and hasn’t encountered any trouble. Defense attorneys are able to watch body camera footage through an online system or in a room provided by Collins’ office. Collins’ office also doesn’t assign a prosecutor to every misdemeanor case.
While Stolle called Colonial Heights a “dark situation,” Collins said he feels he is within his ethical obligations.
“Ethically, I have obligations to the defense,” Collins said. “But how you tell another attorney to prepare for court, I don’t think you can ethically regulate that.”
But Collins said he is concerned about the extra work that will come as the Virginia State Police prepares to enact a body-camera pilot program of its own, a decision that didn’t involve localities but would impact multiple courts in the state.
Similar policies are in place in one of the state’s smallest commonwealth’s attorney’s offices in Southwest Virginia.
“Some jurisdictions might have the ability to fund the additional support staff, and some simply don’t have the funding to do that. What’s expected of every prosecutor is to be prepared and do the right thing. To do that, you have to do what is in your disposal,” Bedford County Commonwealth’s Attorney Wes Nance said.
In the county, defense attorneys are provided the footage upon request, and prosecutors don’t redact privacy information.
“I think we are all in uncharted territory. The reality is starting to come. I don’t think people initially realized the impacts,” Nance said. “In the legal realm, this is a relatively new development, and we are starting to see how big of an impact it is actually having.”