Thursday, April 12, 2012 04:32 am
The computer ate the evidence
Emails were erased, and the legal tab approaches $2 million
In addition, emails that might have pertained to Carlock have been destroyed. During a three-day hearing that ended last week, county employees who maintain the system testified that emails were automatically deleted after six months, and they didn’t know that emails generated by jail staff were supposed to be preserved as evidence in a lawsuit filed by Carlock’s widow.
At the conclusion of the hearing, U.S. District Court Judge Sue E. Myerscough said that she was inclined to believe that ignorance, not bad faith, explained why emails were destroyed. If Myerscough ultimately rules that emails were erased in bad faith, a jury, once a trial begins, could be instructed that missing data must be assumed detrimental to the county’s position.
The judge said that she had heard nothing that disproves allegations that jail staff filed false affidavits aimed at showing that no relevant emails ever existed.
“I don’t know that the allegation that these affidavits are false has been contradicted,” Myerscough said when testimony ended.
The case is developing into an epic legal battle that has already cost taxpayers more than $1.75 million for lawyers, experts and other expenses. The tab is the most the county has ever paid to defend a lawsuit, according to county administrator Brian McFadden, and with no trial date set, there is no end in sight.
Carlock, who entertained children as Klutzo The Clown, was facing federal charges of sex tourism and possession of child pornography when he died. Authorities at a San Francisco airport found photos of naked boys in his computer following a trip to the Philippines, according to court papers filed when he was arrested on Oct. 9, 2007. He died a month later after a struggle during which jailers Tasered him and a guard who weighs 285 pounds sat on him.
Four days after Carlock died, his sister asked the sheriff’s department to preserve all evidence, and former chief deputy Anthony Sacco, who retired in 2008, wrote a letter promising that nothing would be destroyed.
“It is the policy and procedure of the Sangamon County Jail to preserve all potential evidence in matters such as this, and the office shall do so,” wrote Sacco, who less than two months later repeated the promise to preserve evidence in a letter to an attorney for Carlock’s estate.
Nonetheless, emails generated by sheriff’s employees inside and outside the jail during the time period in question were destroyed.
Wayne Rovey, the county’s director of information systems, testified that his department was just learning about requirements for preserving electronic information during the spring of 2008 and that county computer equipment at that time couldn’t preserve emails for much longer than six months without crashing.
“We had nothing to hide,” Rovey testified.
In affidavits, a half-dozen correctional employees, including jail superintendent Terry Durr, said much the same thing, swearing that correctional employees didn’t use emails to discuss incidents in the jail.
“It is not the policy and practice in the jail to use email to create or document incidents or to send emails back and forth regarding incidents,” Durr wrote in an affidavit filed last year. “I did not send or receive any emails regarding this case, except for emails from my attorney, which are privileged.”
However, a handful of emails show that jail employees had exchanged emails about Carlock, including one received by Durr in which correctional staff discussed the fact that Carlock, a former Springfield police officer, was familiar with control tactics and devices used in the jail. Durr himself preserved that email by printing it.
Andrew Garrett, a computer expert retained by the plaintiffs who searched the county’s computer network, testified that he found plenty of emails in which jailers talked about inmates.
“I found hundreds to possibly over a thousand emails that were very inmate specific, from conducting full internal investigations and internal affairs reports to interviewing via email to medical health care,” Garrett testified.
A trial date had been set for August, but Myerscough postponed that indefinitely after hearing that computers and hard drives used by sheriff’s employees, including Sheriff Neil Williamson, have not been searched. She directed the county’s computer expert to perform a search.
“I am very concerned we still have personal computers and hard drives that have not been examined by anyone,” Myerscough said.
McFadden said the county has no plans to settle.
“When we feel we have no liability, it’s better to fight the case to the bitter end,” McFadden said.
Contact Bruce Rushton at firstname.lastname@example.org.