WASHINGTON - D.C.'s attorney general is refusing to turn over evidence that has been used in court to convict drunk drivers.
When evidence is presented in a court of law to a judge or jury, it is generally considered a public record. Two decisions by federal appeals courts have said as much.
In the last several months, prosecutors with D.C’s Attorney General’s Office have been using D.C. police body camera footage to make their cases against drunk drivers.
It is a new tool to use after years of relying on results from breathalyzers, field sobriety tests and the officer’s observations. But when we asked to see the videos used to convict four drivers and acquit another, we were told we couldn’t.
In response to a Freedom of Information Act (FOIA) we filed with his office, D.C. Attorney General Karl Racine cited D.C.'s official code as the reason for not turning them over saying a request for a body-worn camera recording may only be submitted to the Metropolitan Police Department.
"The attorney general’s office’s position on this I think is just incorrect,” said Benowitz. “Once a document has been released publicly or a video has been released publicly, it is in the public domain, and legally I don't think the Office of the Attorney General has a leg to stand on. Those documents or those videos should be disclosed.”
Benowitz has years of experience defending drivers accused of DWI and knows how powerful video evidence could be.
"Those videos, I think, are game changers,” he said. “Because you are now able to see without someone’s interpretation or someone trying to remember facts that may have happened months before. You are able to see in real-time what was going on.”
Benowitz also said being forced to get the footage from D.C. police raises new questions and concerns.
"There is a huge chance that what you are going to get from the Metropolitan Police Department is going to be entirely different than what you would get if you saw the video as it was presented in court,” Benowitz said. “Because when it is presented in court, it has got to be presented without redactions in most cases. It has got to be presented without pixilations that would hide identities in most cases, and that is because it is public and it is for the purpose of airing out the facts at trial.”
In the regulations posted on D.C. police’s website, it says footage turned over in a FOIA request may be provided in redacted form.
We requested an interview with Racine on Thursday, but we were told he was unavailable. His office released a statement saying:
“The District's public-records law specifically directs that all requests for body-worn camera footage can only be made to the Metropolitan Police Department (MPD). Upon receiving Fox 5's request, we carefully reviewed this statute and relevant case law. Ultimately, we determined that the Office of the Attorney General is not the public body authorized to release the footage.
“Nonetheless, as a government agency accountable to the public, we believe that the District should be as transparent and responsive as possible to public records requests. We have, therefore, done everything we can to coordinate with MPD to ensure that the requested records are in its possession.”