Kelly Thomas Civil Trial Settles; Video Evidence and Audio Evidence Played a Central Role

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The picture on the left is Thomas circa 1991. The right circa 2009. These images offer interesting testimony into Thomas' decent into schizophrenia.

The picture on the left is Thomas circa 1991. The right circa 2009. These images offer interesting testimony into Thomas’ decent into schizophrenia.

Just in time for Thanksgiving, attorneys for the City of Fullerton reached a settlement with Ron Thomas, the father of Kelly Thomas, in his civil suit against the city of Fullerton and multiple police officers in the death of Kelly Thomas. The case settled for $4.9 Million, and the video evidence and audio evidence played a central role. This case has widely been known simply as the “Kelly Thomas” case.

The incident, which happened in July 2011, was captured by security video surveillance at a Fullerton bus depot where Thomas was allegedly trying door handles on cars. Audio of the incident was captured on numerous officers’ digital audio recorders (also known as DAR’s). Once video enhancement and audio enhancement techniques were utilized and the video evidence and audio evidence was synced together, an audio/visual narrative of the events that resulted in Thomas’ death were revealed to be much different than what the media often portrayed them to be.

NCAVF worked on the Kelly Thomas case both during the criminal and civil trials and spent countless hours reviewing, analyzing, and enhancing the video evidence and audio evidence for both cases. When the City of Fullerton was preparing for the civil trial, they knew that the forensic evidence was strongly on their side. After all, it was this evidence that caused a jury to return a not guilty verdict on murder and manslaughter charges after only 4 hours of deliberation. Civil charges have a lower level of proof, so a defense verdict was less sure in this case. However, in a press conference, Dana Fox, an attorney for the city of Fullerton, stated that he felt the jury selected for the civil trial was very favorable; perhaps implying that the jury would have favored the defense’s position.

As is often the case when a defendant chooses to settle a civil suit rather than go to trial, the decision to pay out $4.9 million to the plaintiff was not an admission of guilt; it was a pure financial decision. The City of Fullerton’s decision was based upon many factors, including the cost of mounting a 2 to 3 month trial, the cost of further bad public relations during trial, and the risk of trial sparking protests or riots with potential costs resulting from community unrest.

This decision brings to a close the criminal and civil litigations against the parties involved in Kelly Thomas’ death. What has still not been resolved are the administrative cases of the officers who were fired and are desiring to get their jobs back with the Fullerton Police Department. NCAVF will play a role in the use of the evidence for the administrative cases as well, as there is no doubt that the video evidence and audio evidence used in the criminal and civil trials will also be key in these administrative cases.

Posted in Criminal Trials Civil Trials Depositions and Hearings, Enhancement of audio and video | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

Own a Smartphone, You’re Under Audio Surveillance

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Your Phone May Be Under Audio Surveillance

Your Phone May Be Under Audio Surveillance

Were the Founding Fathers concerned with US citizens being under audio surveillance? By late 1791, Congress had ratified the 4th Amendment, which, simply put, states that US citizens are protected from the government against unreasonable searches and seizures, and further that no warrants shall be issued without probable cause. But when the founding fathers wrote this amendment, did they have in mind audio surveillance or smartphones? Do you recall the 2008 film Eagle Eye, and the way in which the government’s supercomputer worked through anyone’s cell phone? That movie is not so far from reality. The truth is that the government can activate any smartphone microphone, even when it’s in your pocket, and eavesdrop on a conversation. In other words, there is the distinct possibility that if you own a smartphone you’re under audio surveillance.

Although there are no statistics to suggest how often the government, FBI, or law enforcement listens in on our cell phones, it happens enough that there’s a term for it: roving bug. As everyday citizens, we all would like to hope that our 4th Amendment rights are not being violated, but we know this isn’t always the case. Title II of the Patriot Act of 2001 enabled the government to wiretap phones without first seeking a warrant. The goal of this, stated by the FBI and the federal government was to “reveal the patterns of US citizens”. This seems to be a clear violation of the 4th Amendment. These actions, therefore, potentially open up anyone within the United States to have audio evidence collected from their device which could then be enhanced and/or used against them.

Attorneys should be asking themselves, then, would the evidence collected by a warrantless wiretap be admissible in court? The answer may be a shocking, “yes!” In regards to recording a private conversation in the state of California (which such an activity falls under the category of wiretapping) there exists a two-party notification clause. Meaning, both parties involved in the conversation (both the recorder and the one being recorded) must have knowledge of the recording. This is why many companies have the warning that states, “this call may be recorded…” Without the caller being informed, the recording is considered as having been obtained unlawfully. Nonetheless, NCAVF worked several cases where private conversations were secretly recorded without the knowledge of the recordees. In these cases, despite the recorders opening themselves up to potential criminal and/or civil punishment, the recordings were accepted into evidence in the court and used as part of the proceedings.

Edward Snowden, the ex-CIA contractor who is infamously known for disclosing government secrets, revealed a program allegedly being deployed in the UK. The UK’s Government Communications Headquarters (GCHQ) supposedly has been using a suite of phone hacks affectionately known under monikers using the “Smurfs” (as in the blue creatures from the 1980’s cartoon of the same name). For instance, the “Tracker Smurf” program allows the subjects phone to be located and tracked using its GPS. “Dreamy Smurf” allows the government to turn the phone on or off, while “Nosey Smurf” will remotely activate the phone’s microphone, allowing for the listening in on conversations. These “Smurfing” phone hacks are essentially malware installed by the GCHQ. (Read more on the GCHQ’s Smurf phone hacks HERE.)

Although it is unclear how one can protect himself from the government tapping our phones (aside from wearing aluminum foil hats), it is clear that everyone needs to be aware that being alone doesn’t necessarily mean we’re really alone anymore (if one has their phone with them that is). Incidents such as these may certainly arouse sentiments similar to what George Orwell thought of in his totalitarian future in 1984. But fortunately, we are not there yet. None the less, it is important for all people to be aware of what their government is doing in regards to audio surveillance and how it may affect us. What’s more, attorneys specifically should be keen on how this type of audio evidence may be used in court, both for or against their clients.

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Attorney Has Self For Client, and Wins Using Forensic Photo Analysis

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Attorney Has Self For Client, and Wins Using Forensic Photo Analysis

Attorney Has Self For Client, and Wins!

There is a well known adage among attorneys that states a lawyer who represents himself has a fool for a client. But what if the attorney has himself for a client, and wins using forensic photo analysis? NCAVF recently assisted an attorney with a family law case involving digital photos. In this particular case, the petitioner, the attorney’s ex-wife, claimed years of physical and sexual abuse from her husband, and she introduced numerous pictures as her proof. NCAVF’s client chose to act as his own attorney, and he must have heard this was frowned upon. In the end, however, NCAVF helped the client win his case using forensic photo analysis by proving the digital pictures introduced as evidence by the wife were doctored, altered, faked, or misrepresented!

The days of 35mm film cameras are almost all but a memory now. In fact, digital photography offers a new layer of forensic evidence – not previously available in “old fashioned” photography. With every digital picture taken there is metadata embedded in the information layer of that file. It was by utilizing this forensic photo analysis technique by examining and scrutinizing the picture metadata that NCAVF was able to help win the case.

Although the above quoted adage is generally accepted as truth, this case did seem to be unique. Representing himself, the attorney worked very hard, perhaps harder than a hired attorney would have worked for him. Clearly, this hard work was an advantage towards his overall success. However, he commented that he burned himself out in all the effort and worry that he had to put into the case. Further, representing himself also presented deep ethical issues in that he chose to cross examine his own accuser of abuse; such a thing may look bad and weigh on a judge’s or jury’s heartstrings, thus possibly influencing a decision. At the end of the day, the attorney noted to NCAVF that although having himself as a client did get him the win, he would not run his defense the same way if he could do it again. He’d hire an attorney.

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Rise in Video Evidence as Police Body Cameras are Used More

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Increasing the use of police body cameras will create a rise in video evidence

Increasing the use of police body cameras will create a rise in video evidence (photo compliments of CBS)

On Tuesday, September 15, LAPD officers shot and killed a man who officers claimed had a gun, which was recovered next to the suspect. As of June 1 of 2015, LAPD officers had shot and killed 10 people according to the Guardian Newspaper. Nationally, law enforcement officers had killed roughly 450 people by June of 2015. So what makes the LAPD shooting from September 15th different? It was one of the first LAPD shootings captured by police worn body cameras. As the LAPD, and dozens of other departments nationwide, begin to deploy body cameras, attorneys can expect to see a rise in video evidence and a lot more cases – both criminal and civil – where video may be central to their case.

As the number of police body cameras in use continues to rise, so do the costs. Initially, the upsurge in videos will certainly give attorneys and prosecutors more evidence to use in their trials and proceedings; but will this rise in evidence be sustainable (cost-wise) in the long term? The City Manager of Berkeley, CA estimates the costs of storing the videos captured by body cameras to be approximately $45,000 a year per 150 cameras. In a department like the LAPD, which plans to have cameras for all 20,000 full-time officers, that could come to $6,000,000 per year. This price tag would be for storage alone, and it does not include other potential costs such as maintenance, installation, repairs, etc. Other estimates suggest the cost could be as high as $24,000,000 per year for the LAPD to store the videos. With costs that high, departments may not be able to afford the body cameras far into the future.

In the here and now, however, attorneys need to take advantage of the rise in video evidence. The analysis, enhancement, and use of video and audio evidence can be crucial in clarifying the details and facts of a case. Having a firm and complete understanding of what the video evidence shows and how to use it can be the difference between winning or losing your case.

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The Importance of Perspective

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The importance of perspectives plays heavily on how evidence is interpreted or used in court

A baseball game was playing last week where a very tough call was made: the runner slid into third base at nearly the same time the third baseman caught the ball. The player was called out and a team challenged the call. While the play was under review, replays were aired showing the play from multiple camera perspectives. The camera from the first base line clearly showed that the baseman caught the ball first and the runner was out. The camera from the third base line appeared to show that the runner made it first and was therefore safe. Examples like the baseball play illustrate the importance of perspective and that the angle of view — whether a human witness or a surveillance camera — can greatly impact perception.

It is rare that a home or business will setup only one security camera. An establishment that has installed their surveillance properly will not only have multiple cameras, but they will often configure them to overlap coverage in order to get multiple angles of the same zones. What’s more, surveillance systems are everywhere now. It is very common for neighboring establishments to have surveillance systems as well. What does this mean for an attorney’s case? This could mean there is more than one angle showing what happened. Having multiple perspectives recorded of the same event may be crucial because as the baseball example shows, a single perspective may not accurately show what really happened.

Although some of the details have been changed to protect the privacy of parties involved, NCAVF worked a case, which was recorded from several angles, where police were attempting to arrest a woman who was resisting arrest. Once officers had the woman in handcuffs, the family of the suspect became hostile towards the officers. To protect themselves, officers were forced to use pepper spray on the advancing crowd. Dashcam footage of these events appeared to show the crowd was twenty five feet away from the officers and therefore not as much a threat. However, a closer analysis of the video proved that the initial perception of the incident offered by the dashcams was wrong and that the crowd was not 25 feet away but really five or six feet away. What first seemed a possible explanation of distance — even to the defense — was proven inaccurate.

At the end of the day, attorney’s must recognize the importance of perspective and that what is viewed on a single piece of video evidence may not be a clear representation of the actual events. The perspective in which the video was recorded often plays heavily in how it appears to the viewer. This, above all else, means it is crucial for attorneys to rely on a video forensic expert to clarify and analyze the evidence in order to understand what really happened.

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How Much is Evidence Really Worth

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LAPD officer's breaking up the unlawful gathering.

LAPD officer’s breaking up the unlawful gathering. How much was evidence really worth in this case? $4,000,000!

When attorneys determine a budget for their case, a question that is perhaps not asked often enough is how much is  evidence really worth to the case? NCAVF recently worked a case where the plaintiff was suing the City of Los Angeles for $4 million. In this case, NCAVF represented the defense, the City of LA. When millions of dollars, or even thousands of dollars may be in the balance, it’s crucial to devote the time, effort, and budget necessary to procure any and all evidence that can mean the difference between being awarded millions or having to pay millions!

In the above mentioned case, NCAVF worked for the defendant in Torres v City of Los Angeles. Mr. Torres wanted $4 million dollars claiming he was injured by LAPD officers while being arrested. In actuality, Mr. Torres refused to leave a downtown LA street while police were attempting to disperse a crowd of “Occupy LA” protesters who had become violent — almost to the point of rioting. Fortunately for the defense, Mr. Torres’ arrest was recorded by several bystanders. The difficulty, however, was in tracking them down. In one case, NCAVF even traveled to the home of one of the posters and searched their hard drive to make a high resolution copy of the original footage.

NCAVF was able to find some of the videos showing Torres’ arrest on video sharing sites, but as is often the case, they had been uploaded in a lower resolution than they had been originally recorded. This, of course, makes enhancing the video much more difficult, if not impossible. But when facing a potential $4 million case, it was certainly worth it to have NCAVF take the time required to conduct a proper investigation to find the highest resolution copies of the video in existence.

After deliberating less than two hours, the jury returned a complete defense verdict, awarding Mr. Torres nothing. Had the defense not been able to enter those videos into evidence, they likely would not have won their case. In fact, the attorney stated that before this case he had never fully realized how important it was to have a complete understanding and familiarity with the video evidence.

NCAVF also recently worked for the defense on another civil case where a known gang member — who was wanted for a double murder — was shot and killed by police during their apprehension. The family of the suspect was seeking a large sum of money from the police, our client. Here, one of the key videos showing the shooting was recorded in high definition by a smartphone. That video was aired on the nightly news. It was from this airing that NCAVF extracted the video. But because it was taken from a recording of the recording, the video’s quality had been degraded. The network that aired the video refused to give up a higher quality version. Nonetheless, NCAVF was able to enhance the video enough that is was usable in court.

Whether representing the plaintiff or defendant, always ask yourself (or your client) how much is this evidence worth to your case? Having access and use of any and all video or audio evidence may be the difference between $4 million and $0.

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CBS2, KCAL9, & CNN Interviews NCAVF on the Police Shooting of a Homeless Man on Skid Row

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NCAVF Notowitz interview still image, KCAL 9 KCBS 2 3-2-2015 re LAPD shoot homeless man

NCAVF is Interviewed by CBS2 and KCAL9 After Police Shooting of a Homeless Man on Skid Row

On Sunday, March 1, LAPD Officers shot and killed a man in the “Skid Row” area of downtown Los Angeles. The case has garnered a lot of media attention as the entire incident was caught not only on nearby surveillance cameras, but it was also filmed in high definition using an iPhone and by officer worn video cameras. The police shooting of a homeless man was only after they claim the suspect grabbed for one of the officer’s weapons. NCAVF was interviewed by CBS2 and KCAL 9’s Andrea Fujii about what we saw in the clip. See the interview here.

The copy of the video we received was downloaded from YouTube, so it had been compressed and the quality as high a the original. Nonetheless, we were able to better reveal much of what happened between officers and the suspect that day. Clearly showing what appears to be the suspect reaching for and grabbing an officer’s gun. Once we have the other video clips, including the security surveillance video and police body cams, we will be able to sync them all together to show a clear picture of the entire course of events.

UPDATE:  CNN got ahold of a much higher quality version of the video and contacted NCAVF to have us enhance and analyze the incident. Here’s what we discovered:  CNN talks to NCAVF about LAPD skid row shooting

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Bill to Make Police Body Cam Footage Private

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Police Body Cam

Bill To Make Police Body Cam Footage Private

In the aftermath of the shooting death of Michael Brown in Ferguson, Missouri, dozens of police departments all over the country have reaffirmed their intentions to begin deploying officer worn body cameras. In fact Los Angeles mayor Eric Garcetti, in December of 2014, committed to purchasing 7,000 body cams to outfit LAPD officers. But one issue that has yet to be adequately addressed is a lack of standardization with how to handle, store, and process all the footage that these cameras will record. Three Congressman in St. Paul, Minnesota have offered a possible solution: they’ve proposed a bill to make police body cam footage private.

With nearly 18,000 state and local law enforcement agencies in existence within the US, there are well over 1,000,000 sworn police officers nationwide. As the use of police body cams increase, so will the audio and video evidence. This will create billions of terabytes of video and audio evidence. Proponents of the Minnesota bill suggest that making the footage secret is for privacy reasons. It is not uncommon for the footage officers collect to be of a very personal nature as they often respond to peoples homes where all forms of disarray can be captured: from folks under the influence to half-naked kids running around the living room, officers have seen it all. The events an officer may witness, say sponsors of this bill, should remain private (especially when recorded in the homes of citizens).

Representatives Tony Cornish, Brian Johnson, and Dan Schoen (Schoen is also an active police officer), are the authors of the bill. The three congressmen propose that only those recorded in the incident will have access to the footage. What’s more, the bill mandates that evidence that is not necessarily relevant to to a case be destroyed within 90 days; this will be regardless of whether or not the case remains open.

Opponents of the bill, however, indicate that destroying the evidence will undermine the very need for the body cams in the first place. With events like the shooting of Michael Brown, many in the public have desired to see more police oversight, with the body cams being a first step in that direction. Yet, there may be an inability to give this oversight if the body cam footage is made private. However, the footage being used for public oversight may be only conceptual, at best. Right now, Minnesota state “data laws” presume that footage captured by police body cams is available to the public, but this is sometimes not the case. Occasionally when folks request footage from law enforcement, they are told the footage no longer exists, which may make it difficult for attorneys or the general public to retrieve copies of the footage.

Despite legislation that is aimed at controlling the audio and video evidence, one thing is definitely clear: attorneys, law enforcement, and forensic experts all need to be prepared for the deluge of new evidence that will be available for their cases. Not only will it be crucial to know when and how to use this evidence, but they must also be aware that the laws governing the use and availability of this new evidence may affect their ability to gather or use it as well.


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