Footage Of Lethal Beating Deleted From Seized Phone; Sheriff Asks FBI To Take Over Investigation

from the a-step-in-the-right-direction dept

Thu, May 16th 2013 11:56am — Tim Cushing

Well, this is rather unexpected. After sheriff's deputies seized cell phones containing footage of David Silva's death at the hands of nine law enforcement officers, the assumption was that Kern County Sheriff Donny Youngblood's promise of a full investigation would result in little more than some officious noises being made and declarations that the recordings were "inconclusive" or "unrecoverable."

That this is the most common assumption shows how far the trustworthiness of law enforcement has fallen. This precipitous drop in trust is almost inversely proportionate to the increase in recordings captured by members of the public. Law enforcement has long been in control of the cameras and this power shift has resulted in some very ugly behavior. The expected mode is cover up and obfuscate, abusing the power that comes with the position.

The unsurprising part of the David Silva beating is this: when one of the phones confiscated by law enforcement (one without a warrant, the other after an illegal nine-hour detention) was inspected at the Sheriff's office, Sheriff Youngblood discovered the footage had been deleted.

The surprising part is that Youngblood decided to call in the FBI to head up a parallel investigation into the death of David Silva. Even better, he had the phones flown out to the FBI's Sacramento office for analysis. This is a rather unprecedented move. The general response from local law enforcement to situations like these is to close ranks and make vague promises and statements about "justice" and "truth." Instead, Youngblood opted to turn the investigation over to a more neutral party (and one with better tech tools).

The fact that this story has attracted national interest probably pushed Youngblood to consider other options. There's little chance the Sheriff's department would be able to control the narrative (or contain the fallout) at this point and with potentially damning footage being deleted by a law enforcement officer, there's no chance for redemption without making the investigation more neutral.

This isn't to say the FBI isn't capable of covering up misbehavior, but in this instance, it really doesn't have much of a stake in the outcome. If the footage shows what eyewitnesses have described, there shouldn't be too much of a question as to where the guilt lies.

The deputies named by the department have been put on paid administrative leave pending the outcome of the investigation, and Sheriff Youngblood has stated that these officers have been receiving death threats and negative email. This, too, is an expected outcome. The court of public opinion creates a lot of judge/jury hybrids. Naming the officers involved is a small but significant step towards a transparent investigation. Hopefully, the FBI's involvement will continue in this fashion, rather than take a turn towards the opaque.

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Filed Under: david silva, deleted, fbi, kern county, lethal beating, mobile phones, video evidence

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fogbugzd (profile), 16 May 2013 @ 11:06am

I have an app on my phone that will upload live video or audio to an ACLU server. The recording can't be deleted once uploaded. Fortunately I have never had an opportunity to test it to see how well it works.

It would be great if this type of service were more widely used. I also find it sad that I feel a need for this type of service.
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Atkray (profile), 16 May 2013 @ 11:48am

Re:
I have all of them synced automatically to Skydrive.

I would hope that the FBI involvement leads to two things.

1: Prosecution of those responsible for the death of David Silva.

2: Prosecution of those responsible for issuing death threats against any of the suspects.
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Anonymous Coward, 16 May 2013 @ 11:59am

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Anonymous Coward, 16 May 2013 @ 12:04pm

They have at least a half dozen eye witnesses who didn't record it on their phones. That should be plenty of evidence for at the very least a manslaughter conviction. Possibly even enough evidence for a murder conviction when you add an autopsy report, photographs of the victim's body and where he took the beatings, and testimony of the two people with the cell phones that recorded it.
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Anonymous Coward, 16 May 2013 @ 12:08pm

Re:
Whats the app called?
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Rich, 16 May 2013 @ 12:11pm

If all they did was "deleted" the video, it is trivial to retrieve.
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Rich, 16 May 2013 @ 12:12pm

Re:
Sorry, I mean "delete" not "deleted."
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fogbugzd (profile), 16 May 2013 @ 12:28pm

Re: Re:
It is called Police Tape and put out by the ACLU of New Jersey.
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Anonymous Coward, 16 May 2013 @ 12:30pm

The Question [Now] is
Ask not what you can do for your country, ask what your country can do TO you!

-Bill Gross, PIMCO
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Anonymous Coward, 16 May 2013 @ 12:32pm

Obstruction of justice and tampering with evidence is only a crime when the little guy does it. When the police do it it's fine.
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Aztecian (profile), 16 May 2013 @ 12:32pm

Trust of breach
I would very much like to trust law enforcement agencies and officers again, but it will take some doing. It took a long time and a lot of bad acts to lose my trust, so I don't expect it to be all that easy to get it back. But this guy just started the turn in that direction.

I'm finding the most encouraging law enforcement actions are coming from the office of sheriff. Maybe it's because they are elected. I don't know, but that is a very powerful office, and it seems that when a sheriff makes the news it's because of a positive thing... or at least an attempt do do what they believe to be a positive thing.

I don't know of any other law enforcement officer subject to election. I think the rest--police chiefs and officers, Sheriff Deputies (ahem. Oops.), FBI agents, etc, are hired or appointed.

Whatever it is--My trust level has been on empty for quite a few years, and I liked things better when it wasn't.
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fogbugzd (profile), 16 May 2013 @ 12:34pm

Re: Re:
One problem with Skydrive, Dropbox, Evernote and similar services is that the video can be deleted from them if someone gets access to your phone.

The other problem is that most of those services don't upload until after you stop recording. If your phone gets smashed or turned off the recording is not transferred or may be lost entirely. Uploading the live stream protects against that.
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Anonymous Coward, 16 May 2013 @ 12:39pm

Cops gotta love em..
The only job in the world where you get a paid vacation for killing someone.
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Anonymous Coward, 16 May 2013 @ 12:46pm

Re: Trust of breach
Constables are also often elected. (At least they are here in Texas.)
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Watchit (profile), 16 May 2013 @ 12:47pm

Re: Re:
I actually think either way is correct.

And to add to your point, it's sad that people don't recognize that deleting something is far from erasing it's existence forever. All whoever was responsible did, was make it that much more obvious they have something to hide.
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Watchit (profile), 16 May 2013 @ 12:49pm

Not that I condone the hate emails and death threats, but part of the reason they're receiving it is because often times that's the only way people can vent on the situation; too often, as stated in the article, there's nothing done more than grand speeches of "truth" and "justice" with perhaps a slap on the wrist.
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Rich, 16 May 2013 @ 12:50pm

Re: Re: Re:
Thank you, but "was deleted the video" is definitely not grammatically correct.
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Anonymous Coward, 16 May 2013 @ 12:52pm

Re: Re: Re:
It is harder though to recover deleted data from solid state media (although not impossible) than it is to recover it from a hard drive.
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Eponymous Coward, 16 May 2013 @ 1:03pm

A Learning Moment:
This illustrates to all potential civillian journalists that once you capture a recording like this immediately email it to a friends account if at all possible. Not being a tech-guy this to me appears to be the best solution; for it is fairly quick, since most phone are already opptimized to send pics and videos without additional apps, and there will then be at least 3 copies of the video, 2 of which the police can still immediately access to delete (but betters the odds for forensic recovery) and another they can not without a warrant (which should provide enough time for further copies to be made and/or uploaded to the Internet). I find it frustrating if one of the copies that was deleted was one belonging to the woman who made the 911 call for she had plenty of time and opportunity to send copies out before the police arrived to confiscate her phone (secretly I hope they did, but are keeping mum about it, so to set up and catch these officers in the destruction of evidence, but I know this is whishful thinking on my part)!
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Anonymous Coward, 16 May 2013 @ 1:09pm

A key difference between this and other similar scenarios (such as Kelly Thomas) is that sheriffs are typically elected, so they are measured by the electorate on their personal qualities.

On the other hand, most city police chiefs are hired by the city government, based on who knows what type of political wrangling.
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Lord Binky, 16 May 2013 @ 1:13pm

I really want to believe this investigation is being pursued better for the right reasons.

The cynic in me thinks that the motivation for more substantial consequences is driven by internal factions in their police department or just leaving them to fend for themselves because they screwed up too big.
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Chris-Mouse (profile), 16 May 2013 @ 1:31pm

Re: Cops gotta love em..
They get a paid vacation because they are innocent until proven guilty in court, so you can't punish them. At the same time, the allegations have so damaged their reputation that they are useless in any sort of law enforcement role.
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Anonymous Coward, 16 May 2013 @ 1:38pm

Re: Re: Cops gotta love em..
Except most people in other jobs if suspended from their employment position pending an investigation into wrong doing would not be paid for the time that they are not working. While I agree with you about innocent until proven guilty, there is a double standard there that is a little less than fair.
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Ophelia Millais (profile), 16 May 2013 @ 1:41pm

I hope I'm wrong, but it wouldn't surprise me if the authorities and/or coroner attribute the guy's death to "excited delirium". The baton cracks to the head and body will be deemed inconsequential.
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Anonymous Coward, 16 May 2013 @ 1:42pm

apart from the obvious, that these 'officers of the law' committed nothing short of murder, then went on to do the exact opposite of what numerous courts have said they cant do, ie, confiscate and/or wipe phones and jail people for doing what is deemed lawful. as is so often the case nowadays, the police think they can do whatever they want, including ignoring the courts, just to keep the truth from being publicised. now a man has been killed and those responsible need to be imprisoned. i think there will be a lot of unhappy people if 'justice isn't seen to be done'. when all else has failed, examples need to be made. this is a good case to start with.
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Anonymous Coward, 16 May 2013 @ 1:45pm

Re: Re: Re:
Servers that hold customer data do not "delete" the same way your phone or mobile device does. They'll mark it as hidden to the user but it is never deleted. Unless a service advertises this fact (hint, none of the big ones do.)
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Anonymous Coward, 16 May 2013 @ 1:52pm

Re: Re: Cops gotta love em..
Great point, I wonder if the cops were thinking about innocent until proven guilty while they were beating that guy to death
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John Fenderson (profile), 16 May 2013 @ 1:53pm

Re: Trust of breach
that is a very powerful office

Indeed it is. Most people don't realize that county Sheriff is one of the, if not the, most powerful law enforcement position in the US.
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Anonymous Coward, 16 May 2013 @ 2:29pm

Re: Trust of breach
The only reason Youngblood called in the FBI is, as Tim pointed out, there is no way he could control the narrative at this point. Attempting to do so could only harm his own career. I seriously doubt concerns of justice had anything to do with it, he's just watching out for number 1. I wouldn't get warm fuzzies just yet.
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Mr. Applegate, 16 May 2013 @ 2:41pm

Re: Re: Re: Re:
Not really. Solid state media has the same pit fall as a hard drive deleting typically means deleting the pointer to the data, not the data itself.

If they try to erase the data on a solid state drive that is even harder due to solid state media having 'wear leveling' algorithms that control when a portion of the memory is over written.
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Anonymous Coward, 16 May 2013 @ 2:54pm

I doubt that the FBI will try to cover this up. It's reminiscent of race murders in the 60s south -- there's a clear line for outside investigators.

Once the videos disappear, anyone involved who's not begging to aid the investigation is on the carpet as an accessory. The sheriff's own situation for the next few years will be heavily determined by how many minutes or hours it took him to realize that. If he was complicit in the deletions, sending the evidence to the FBI is pretty risky: like chewing off a leg to escape a trap, it's better than the alternative.

With his action setting the pace, I expect the men involved in the beating won't be able to find a common line and some will turn state's evidence.
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Anonymous Coward, 16 May 2013 @ 3:00pm

Re:
an autopsy report, photographs of the victim's body and where he took the beatings

�Many unanswered questions about David Silva's death�, KGET, May 13, 2013

Silva's uncle described what he saw after seeing his nephew's body at the coroner's office. "Bruised up face, chin, ear, busted lip, broken nose, black eye, all marks all over his face," he explained.

Can we conclude that the witness accounts of baton blows to the head appear to be corrobated by the description of injuries found on the body?
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Anonymous Coward, 16 May 2013 @ 3:08pm

Re: Re:
witness accounts of baton blows to the head

�Dad who died during arrest 'begged for his life'; witness videos seized�, by Laura Liera and Jason Kotowski, The Bakersfield Californian, May 9, 2013

At about midnight, Ruben Ceballos, 19,was awakened by screams and loud banging noises outside his home. He said he ran to the left side of his house to find out who was causing the ruckus.

"When I got outside I saw two officers beating a man with batons and they were hitting his head so every time they would swing, I could hear the blows to his head," Ceballos said.

If we find, �Bruised up face, chin, ear, busted lip, broken nose, black eye, all marks all over his face" (see parent comment); does that tend to corroborate Ceballos' statement? At least make it more credible?
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Anonymous Coward, 16 May 2013 @ 3:25pm

Re:
it wouldn't surprise me if the authorities and/or coroner attribute the guy's death to "excited delirium"

One thing I haven't seen in the news yet is whether the victim's family is paying for a second autopsy, by outside pathologists.
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Anonymous Coward, 16 May 2013 @ 3:31pm

Re:
nothing short of murder

Proving murder is requires proof of intent. Intent may be inferred by circumstances. But proving �beyond a reasonable doubt� that the officers wrongfully intended to kill the man may be an awfully steep hill to climb.

If we credit the reported statement �if the account is repeated under oath� that the first officer on the scene told the man not to move, and then, when the man sat up, the officer immediately struck him in the head with a baton�
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Anonymous Coward, 16 May 2013 @ 3:39pm

Re: Re:
If we credit the reported statement...

�FBI to probe fatal beating by Kern County deputies�, by Diana Marcum, Paul Pringle and Richard Winton, Los Angeles Times, May 14, 2013

[Laura] Vasquez said the first two deputies at the scene woke Silva, who was sleeping in front of a house, and ordered him not to move. When Silva sat up, looking confused or scared, a deputy hit him in the head, Vasquez said.

"He fell back and then the other officer got out and swung toward his head," she said. "Mr. Silva was reaching for his head and the officers said 'stop moving' and 'stop resisting.' He wasn't resisting. � He rolled on his back and they kept hitting."

More deputies and two California Highway Patrol officers arrived at the location. Vasquez said the deputies hogtied Silva, lifted him off the ground and dropped him twice, and delivered more baton blows and kicks to his head and body until he went limp.

"He was screaming for help. He was laying on his chest. The cops were still on top of him, still hitting him. My family and I screamed at them to stop hitting him.� The blood was all over Mr. Silva's face. We couldn't even tell if he had eyes or a mouth."

If we credit that statement, can we infer that the first two deputies on the scene intended to use deadly force without justification?

If that account is repeated under oath �and a jury believes it� is it sufficient to prove murder?
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Anonymous Coward, 16 May 2013 @ 3:45pm

Re:
... murder...

California Penal Code Section 187-199

187. (a) Murder is the unlawful killing of a human being � with malice aforethought.�
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Anonymous Coward, 16 May 2013 @ 3:54pm

Re: Re:
If they did not intend to kill people why did they join a hate organization?
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Mason Wheeler (profile), 16 May 2013 @ 4:14pm

The trouble with footage
The problem with footage and eyewitnesses is that the account they can provide almost invariably starts in Act 2. They see the police interacting with someone in some way; what they don't see is why.

The classic case is Rodney King, another "footage of police beating" incident. The guy with the camera didn't see the high-speed chase that the severely intoxicated King led the police on, endangering the lives of himself, his passengers, the police, and innocent civilians. It also didn't show him behaving in bizarre ways and making comments that led the officers on the scene to believe he was under the influence of not only alcohol but PCP as well.

All it showed was the arrest, and subsequent beating after King resisted arrest, and that's all that got broadcast on TV. When an impartial jury considered all the facts, they found the officers not guilty. But they had already been convicted by the media in the court of public opinion, and it touched off a riot.

Recorded evidence (audio and video) can have a very powerful emotional impact, and when used irresponsibly it can cause serious problems. (See also: the 911 call in the Trayvon Martin case that the reporter edited to manufacture the appearance of racism where none existed.)

With the way people keep pulling stupid crap like this, it's not hard to understand why even good police don't like being taped. If I was a cop I wouldn't like it either, and not because I wanted to avoid responsibility, but because there's plenty of precedent to worry about that video being used irresponsibly and undermining the public safety that I had taken an oath to protect!

The closer to the truth, the better the lie, and the truth itself, when it can be used, is the best lie.
- Isaac Asimov
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Violated (profile), 16 May 2013 @ 4:19pm

Shame
Now that was a good choice move by Sheriff Youngblood when clearly there is an on-going cover up in the department. We can hope the FBI can recover these video recordings when once deleted they may still be available if not overwrote.

This is indeed a disgusting case so these Police Officers hanged around and totally abuse a Court seizure order so that they could delete the evidence against them.

I should point out the obvious when if the FBI investigation shows video deletion while in Police control then the Police Officers involved should be immediately fired. There should never be any excuse for deleting evidence.

I don't know about you but had it been my phone that captured this then I would say "sure you can have the phone but let me back-up the data first". Should they refuse I would soon have a lawyer make an emergency Court appeal to not place the evidence into hands of the perpetrators. Revoke the seizure order and to hand the phone to the Judge directly under assurance of evidence safety. Always in legal hard ball you need to fight strongly and not just sit there and take what they give you.

Well this is a truly disgusting case where having both videos deleted clearly shows tampering. We can only hope these videos are recovered so that we can all see what really happened. From what the witnesses have said though this is little more than Police Officers committing murder.
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Violated (profile), 16 May 2013 @ 4:44pm

Re: The trouble with footage
In the Rodney King case there is no justification to beat him like that where Police Officers can only use the required force to ensure an arrest. As a result it was unprofessional if not unlawful.

Yes they did let them go. We can recall what happened next as half of LA went up in flames. The law is not just about the words of law when a Judge also needs to show that Justice is done where LA burned because Justice was not done. The discontent and anarchy in LA causing millions of dollars of damage became their Jury to judge them and guilty was their verdict. We can also recall who soon went to jail on public choice.

I will remind you that deleting video evidence is so extremely unprofessional and unlawful that any officer who does such should be immediately fired.

Filming officers doing their duty is allowed by order of the Court and a good reason for them to be professional. I am sure some do not like it but as long as it does not hinder their duty then they cannot interfere except by polite request.

Then should they wish to counter public opinion then be open and honest. You may note once seized the videos had no chance of going public so they only deleted evidence which could convict them.
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Violated (profile), 16 May 2013 @ 4:54pm

Re: Re:
I would believe that they need to hear the results of the first autopsy before they need to consider another. I can't say how independent from the Police the pathologist is but they have no reason to neglect their duty. After all if two autopsies largely varied big questions would be asked.
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Violated (profile), 16 May 2013 @ 4:54pm

Re: Re:
I would believe that they need to hear the results of the first autopsy before they need to consider another. I can't say how independent from the Police the pathologist is but they have no reason to neglect their duty. After all if two autopsies largely varied big questions would be asked.
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Violated (profile), 16 May 2013 @ 4:59pm

Re:
When the Police do it then cities burn.
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Violated (profile), 16 May 2013 @ 5:03pm

Re: Re: Re:
Let us keep in mind that while recovery is quite possible the person who did this may have had the smarts to write over all the blank memory area making recovery impossible.

Still such mass memory erasing should also leave its mark providing evidence of another kind.
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Beech, 16 May 2013 @ 5:14pm

Not really surprised the video got deleted. It's not like the cops illegally detained people for hours just to make sure they filmed their "good side" as they were beating a man to death.
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Mason Wheeler (profile), 16 May 2013 @ 5:18pm

Re: Re: The trouble with footage
Yeah, way to completely miss the point of my entire posting.
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Cody Jackson (profile), 16 May 2013 @ 5:23pm

Admin leave
I've always wondered why police are given paid administrative leave when they "screw up". I mean, they need the money, but it basically turns into a paid vacation if you break the rules.

If you want to make sure that officer know the bad consequences of violating the rules, then give them unpaid leave. Hopefully that would make them think twice before doing something stupid that could potentially affect their paycheck.
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Anonymous Coward, 16 May 2013 @ 5:26pm

I think this case is what we call an investigation of internal affairs.
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Anonymous Anonymous Coward, 16 May 2013 @ 5:29pm

Re:
Hmmm, maybe that's why the pillory, and stoning, and public hangings, or guillotine work, etc. was so popular in the past. I know we think of them as archaic or 'cruel and unusual' but let's think about that for a minute. Is the sophistication and brazenness of crime going up? I think that possibility exists.

Now, is this because technology?

Maybe some, but I think there has been what might be considered a concerted effort to set the system in the path of one favor over another. No conspiracy theories here, I leave the Illuminati and the Masons to Dan Brown and Umberto Eco. No, I think this is more of a generational thing. One generation achieves a certain level of 'Teflon-ness', the next sees the benefits and works on better Teflon.

So did our 'out of sight, out of mind', 'declare them guilty and stuff them in a prison' solution do much to assuage the communities ire? I am not suggesting a return to corporal punishment per se, but maybe there is a way to include the public. Is there a way, not being used now, that will express the publics consternation at those that think they are above the law, yet at some point come into their comeuppances? Unlike them, within the constitution, of course.
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Anonymous Anonymous Coward, 16 May 2013 @ 5:41pm

Re: Admin leave
Think unions.
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Anonymous Anonymous Coward, 16 May 2013 @ 5:48pm

Re: Shame
I was thinking like this, until I realized that the phone call to the lawyer has to happen at almost the same instant that you start recording. After all, they have to get out of bed, get dressed, and then get to where you are. By that time, Officer Friendly will have removed the phone from your possession, handcuffed you, tossed you into a paddy wagon that has no known destination, though you will eventually be booked.

Oh, and whether they save the recording or not, you pay for the attorneys time, quarter hour increments, travel expenses, et al. Of course one could go the high volume way and have an attorney on retainer, and at your side at all times. Though, this might not keep the cops from arresting the attorney by accident and separating you for, well just long enough.

The ACLU of NJ method mentioned above is the way to go. We need to find a way to get THAT to every cell phone user.
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Anonymous Coward, 16 May 2013 @ 5:49pm

Re: The trouble with footage
The problem with footage � is that the account they can provide almost invariably starts in Act 2.

In this case, though, we have some video that documents the very beginning of the incident. We have the black-and-white surveillance video which has already been published. That's thev ideo that was referred to in the earlier story here at Techdirt. That video appears to start before the incident began.

If you haven't seen it, the video is embedded in the KERO 23ABC News story �Newly released video allegedly shows fight between intoxicated man and law enforcement� (story by Cris Ornelas and Derek VandeWeg, May 10, 2013)

23ABC News obtained video early Friday morning of what appears to be Wednesday's violent encounter�

The video was shot by a security camera near the corner of Palm Drive and Flower Street in East Bakersfield and time-stamped May 8th, which is the same day of Wednesday morning's incident.

In the Otto Zehm case, in Spokane, experts got as much resolution as they could out of surveillance video, and brought in frame-by-frame stills for the jury to examine.
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Violated (profile), 16 May 2013 @ 7:00pm

Re: Re: Re: The trouble with footage
I am well aware what you said and your point but here you are trying to make out all they did was quite reasonable. So the Police beat a guy to death and then on purpose delete the video evidence, twice.

I am sure everyone involved wants the truth to come out and the whole truth. Is not deleting the video evidence not trying to hide the truth? Is it not better for them to be open and honest and to follow the rules?

Unlike the days of Rodney King technology has now much improved where cameras are everywhere. Then damned right for the FBI to be involved when the Police just proved themselves untrustworthy. That fact won't make the public happy.
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Violated (profile), 16 May 2013 @ 7:26pm

Re: Re: Shame
The Police cannot take away your phone without a Court order to seize it. One of those two did refuse to hand it over and so was not allowed to leave for about 6hrs until such a Court order arrived.

Long enough for a lawyer to do some damage I am sure. If you are being detained the Police refusing to allow you to contact a lawyer seems another violation. Others could also contact a lawyer on your behalf when you still have a voice.

I also highly doubt the Police can arrest a witness in such a situation. This could be in front of family and friends and to arrest them for wanting their rights under the law?

Sure if you can backup the data it should be done as quickly as possible but my point is about if the Police arrive early and deny you using your phone before you can. So this is all about protecting the evidence from people who wish it deleted.

Certainly at nearly 2am this is a very bad time for both lawyers and judges. I am sure though it would not take long for one to understand your urgency and to know who exactly to contact to put a certain seizure order on hold.

The only other method I can think of is if you have the numbers to over-power the Police to allow you the time to complete the backup. A very risky move though most likely ending in mass beatings and arrests but maybe one backup.
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Anonymous Anonymous Coward, 16 May 2013 @ 7:34pm

Re: Re: Re: Shame

"One of those two did refuse to hand it over and so was not allowed to leave for about 6hrs until such a Court order arrived.

Sorry I missed this bit. On the other hand, my father was once arrested "for his own protection" for being a reporter in the middle of the 1957 Little Rock Central High School riots. This was just after he had two ribs broken by the crowd.

Go ahead, tell me things are different today. Police often act first and think, well either later or never. Not all police, but that police misconduct site sure has a lot of instances to report.
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Chris Rhodes (profile), 16 May 2013 @ 9:05pm

Re: Re:
"I didn't mean to kill him, your honor, I just wanted to beat him over the head with a baton 87 times!
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Jake, 16 May 2013 @ 10:37pm

I'm sure a lot of cops (not a majority, I don't think, but a lot) are severely pissed off at Sheriff Youngblood right now, but he's probably saving a few of their lives. If he'd gone along with a whitewash, the message a lot of people would have taken away from this clusterfuck was that the cops can beat you to death or shoot you and have whatever bullshit excuse they concoct afterwards taken at face value, so you might just as well shoot first. I can't imagine it'll take many more of these incidents before we hear of someone blasting their way out of a traffic stop and claiming they "felt threatened" and were "standing their ground". Hell, the judge might even buy it.
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Manok, 17 May 2013 @ 3:53am

Another case which is a good example why we *DO* all need Google glasses, and everything recorded *MUST get uploaded to Google Headquarters right away. Or probably, preferably, a foreign video upload service...
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DecentDiscourse, 17 May 2013 @ 4:11am

Nothing unusual here
He only acted as he did when it became known that a smarter neighbor didn't tell anybody she had captured the beating on a camera cops didn't know about and gave the recording directly to the family of the victim.
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Anonymous Coward, 17 May 2013 @ 4:18am

Re: Re: Re: Re: Shame

One of those two did refuse to hand it over and so was not allowed to leave for about 6hrs until such a Court order arrived.
Sorry I missed this bit.

�Deputies' video confiscations come under scrutiny in fatal Bakersfield beating case�, by Steven Mayer and Jason Kotowski, The Bakersfield Californian, May 11, 2013

�[S]heriff's deputies knocked on the door of witnesses to the incident at around 3 a.m. Wednesday�

� John Tello, a criminal law attorney representing the two witnesses who shot video footage and other witnesses to the incident, said the witnesses were not allowed to leave with their phones.

The witnesses allowed a police technician to try to download the videos onto a tablet computer, but the effort was unsuccessful, Tello said.

The male witness, whose name has not been released by Tello, hours later gave up his phone under duress because he had to go to work, and deputies would not allow him to leave, Tello said. The female witness, Maria Melendez, 53, held out until around noon -- with deputies remaining in the room -- until the search warrant finally arrived.

"They were tired, scared, with a 9-year-old child there who was terrified," Tello said.�

Three a.m. Wednesday until noon is nine hours.

That article in the Californian also contains comments and analysis by Bakersfield defense attorney Arturo Revelo, and by Yaman Salahi, an attorney for the ACLU-Southern California, as well as by defense attorney Kyle J. Humphrey.
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Anonymous Coward, 17 May 2013 @ 4:42am

Re: The trouble with footage
The problem with � eyewitnesses is that the account they can provide almost invariably starts in Act 2.

There is also a report from someone who allegedly encountered David Silva shortly the Sheriff's deputies arrived on the scene.

�Witnesses: Deputies used too much force in arrest of Bakersfield resident David Silva�, by Cris Ornelas, KERO 23ABC News, May 9, 2013

One woman told 23ABC that she saw Silva just minutes before deputies arrived. She said she stopped to check on him and made sure he was okay.

"I seen the guy laying there. I thought something was wrong with him. Then when I saw him moving... I saw his chest moving up and down...I knew that he was just drunk and eventually he'll wake up," said the woman, who asked not to be identified.�

"I had my cell phone out and I was gonna dial 911 and tell them that he was laying there. And I figure he drunk, that's all he is, he drunk. Somebody gonna come by and get him. He gonna eventually sober up a little bit and come to himself," said the woman.�

It's too bad this woman doesn't want to be identified. I wish the people could get her come forward and testify.
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The Real Michael, 17 May 2013 @ 4:43am

Re: Re: Re: Re:
But what happens if the police demand those services either turn over or wipe clean all video evidence? Better to either upload immediately to the ACLU + YouTube and then duplicate it elsewhere.

The very fact that the police worked to delete the videos (after claiming it as 'evidence') smacks of cover-up. They're all but admitting their guilt at this point.
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Anonymous Coward, 17 May 2013 @ 4:54am

Re: Re: Re:
"I didn't mean to kill him, your honor, I just wanted to beat him over the head with a baton 87 times!

One news outlet reports 19 baton blows visible in the surveillance video.

�California cops defend phone confiscations as video of 'constant bashing' emerges�, RT, May 16, 2013 (edited)

Only one poorly-lit video of the beating has surfaced, but 19 blows are visibly delivered by three officers.

I've watched that video, but didn't count the hits myself. I guess 19 is as good a number as any, until the video experts take the time to really analyze the video with all the tools at their disposal.
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Shon Gale (profile), 17 May 2013 @ 5:52am

Record the incident directly to the cloud. Don't be a dumbass and have it sitting on your phone. If they confiscate your phone with no footage on it. That's a lawsuit. Sue the bastards, they are broke. Nail them now!
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Anonymous Coward, 17 May 2013 @ 6:11am

Re:
Not that I condone the hate emails and death threats�

Well, you know, some people just believe everything see on TV or read in the news, without applying a critical filter and cross-checking against other reports.

Not everything the media reports is absolutely correct. You have to take each individual story and add a dose of salt.

But some people just get hold of that bad info and grab on to it �it gives 'em funny ideas� and then they go straightaway off the rails.

�

�David Silva's death gains national attention�, KGET, May 16, 2013

� on national news outlets, talk radio, blogs and in newspapers.

Some have reported misinformation. CNN told its viewers Bakersfield Police was accused of beating Silva to death.

Just in case anyone here is in doubt, the best information that we have is seven Kern County Sheriff's deputies, and two CHP patrolmen. The Bakersfield police have been involved, but only in that the Kern County Sheriff, Donny Youngblood requested an outside agency to analyze the two seized cellphones.
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Anonymous Coward, 17 May 2013 @ 6:31am

Re: Re: Re:
� if two autopsies largely varied big questions would be asked.

I guess we all lucky that California is not Mississippi.

�

Heck, California ain't even Chicago. �� Winters in California are for sure nicer than Chicago. �� Those Chicago winters�they cold. �� Damn cold.

�

No. �� It ain't Mississipi and it ain't Chicago neither.

�

Damn cold.
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FarSide (profile), 17 May 2013 @ 6:34am

Re: A Learning Moment:
I find it frustrating if one of the copies that was deleted was one belonging to the woman who made the 911 call for she had plenty of time and opportunity to send copies out before the police arrived to confiscate her phone

Most people don't think this sort of thing will actually happen to them and don't have a plan for getting stuff backed up quickly and easily.

On the other hand, if I just witnessed the cops beating someone to death outside my house, I probably would be backing things up as fast as possible and then leaving the area for a while.
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FarSide (profile), 17 May 2013 @ 6:41am

Re: Re: Re: Shame
The Police cannot take away your phone without a Court order to seize it.

The police also cannot beat you to death in the street.

Oh, wait.
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Ninja (profile), 17 May 2013 @ 7:21am

Re: Re: Re:
Wouldn't it act similarly to bambuser? I haven't used bambuser yet so it may be just some live streaming platform. Still maybe it records.
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Niall (profile), 17 May 2013 @ 8:19am

Re: Re: Re: Cops gotta love em..
Maybe that's true in the US, but in the UK innocent until proven guilty means full-pay suspension.
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fogbugzd (profile), 17 May 2013 @ 8:48am

Re: Re:
One problem with Skydrive, Dropbox, Evernote and similar services is that the video can be deleted from them if someone gets access to your phone.

The other problem is that most of those services don't upload until after you stop recording. If your phone gets smashed or turned off the recording is not transferred or may be lost entirely. Uploading the live stream protects against that.
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Anonymous Coward, 17 May 2013 @ 11:45pm

Cellphone videos not yet released
According to a story from Bakersfield TV channel 17, analysis of the cellphone videos is not yet complete.

Earlier reports had indicated the cellphone videos could be released to the public on Friday, but now this article says that analysis of the videos may not be finished until Monday or Tuesday of next week. It is not entirely clear whether the videos will ever be released.

�Analysis of cell phones in David Silva's death not complete�, KGET, May 17, 2013

BAKERSFIELD, CA - Cell phone videos that witnesses say, show the in-custody death of a Bakersfield man will not be released, even though the phones were returned to their owners.�

[Attorney for witnesses] Tello didn't release any cell phone video Friday. He said his expert is looking at the phones and the analysis won't be complete until Monday or Tuesday.�
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Anonymous Coward, 18 May 2013 @ 5:53am

Additional search warrants executed
Local news outlets reported yesterday that search warrants were executed on the Kern Medical Center and the Mary K. Shell Mental Health Center. The Sheriff's Department obtained surveillance video and some of David Silva's medical records. These materials have not been released to the public.

�Sheriff seeks medical details about Silva� by Steven Mayer, The Bakersfield Californian, May 17, 2013

Sheriff�s investigators served a search warrant on Kern Medical Center and the Mary K. Shell Mental Health Center.�

The warrant shows that investigators asked for surveillance video and medical records.�

�KMC videos, medical records released to Sheriff's Department�, KGET, May 17, 2013

BAKERSFIELD, CA - Sheriff's detectives now have their hands on some of David Silva's medical records. They also have video of what could be his last moments in front of Kern Medical Center and the Mary K. Shell Mental Health Center.

The videos and records were released Friday afternoon after a judge reviewed the materials. The Sheriff's Department requested the video and records in a search warrant last week.�

17 News asked for copies of the records and videos. The Sheriff's Department declined our request.
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WysiWyg (profile), 18 May 2013 @ 8:28am

Re: Re: Re: Re: Re:
I quote the threadstarter:

"Fortunately I have never had an opportunity to test it to see how well it works."

That's the big problem. You can't test it to make sure it works beforehand. What if you find out in the heat of the moment that some other app is making a fuss?

Then again, THAT would be an easy problem to solve by building in a test-function in the app, that would upload to a different server that actually erases the data daily.
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Ben Brucato, 18 May 2013 @ 4:17pm

We are moving closer to a situation where police agencies will be generally embracing ubiquitous and persistent visibility of policing activities. We'd do well to carefully consider the political meanings and outcomes of such a development. Many have rightly considered that the repression of civilian photographers and videographers signaled a fear of visibility. Whether they're changing because they cannot escape the cameras, or for some other reason, more and more agencies are either succumbing to or openly embracing visibility. I have argued that there's something more to it: they've seen that this visibility more often than not aids police power rather than threatens it. We would do well to consider this position and what it means.
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RyanNerd (profile), 19 May 2013 @ 5:06am

Re:

...should be plenty of evidence for at the very least a manslaughter conviction...

Depends on if this ever goes to trail and if it goes to a jury in Simi Valley or not.
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Anonymous Coward, 19 May 2013 @ 5:17am

Kern County Confirms Homicide Investigation
An article in The Bakersfield Californian quotes a unamed Kern County lawyer's confirmation that the circumstances surrounding David Silva's death are being investigated as a homicide.

�SOUND OFF: What's known, and what's not, in Silva investigation�, by John Arthur (Executive Editor), The Bakersfield Californian, May 18, 2013

In public records requests, we [The Californian] asked for tapes of any other 911 calls and dispatch/radio communications related to the Silva incident. We also requested any audio or video recordings agencies may have of the incident.

A Kern County lawyer replied:

"Since this involves an investigation regarding an individual who died, it is a homicide investigation. Records gathered as part of the investigation are records of an investigation conducted by a local police agency. As such, they are exempt from disclosure under Government Code 6254(f).... As to the 911 tape, I do not believe there are any others. The one that was released was released, as I understand it, prior to my response being made to (your reporter) and without my knowledge."

In the Otto Zehm case, up in Spokane, Washington, one of the huge problems involved the city's confusion between investigating a homicide versus defending the city and its officers from civil liability for wrongful death.

I hope that Kern County does not similarly confuse homicide investigation with defending a wrongful death.
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Anonymous Coward, 19 May 2013 @ 5:55am

Re: Re: Re:
I can't say how independent from the Police the pathologist is�

The Bakersfield Californian notes that the coroner's office is a division of the Kern County Sheriff's Office.

�ROBERT PRICE: Has good-ol'-boy corruption seized the Kern County Sheriff's Office?�, by The Bakersfield Californian (Robert Price, Editorial Page Editor), The Bakersfield Californian, May 18, 2013

If the witnesses are being truthful -- and they didn't accidentally erase the video themselves -- we have to ask if Sheriff's personnel really had the gall to knowingly destroy evidence that might incriminate deputies -- and with an increasingly cynical public watching, no less, wondering if they would dare do so.

Given the possibility that someone in local law enforcement would willingly compromise an investigation in such a blatant and ham-handed fashion, is it fair to ask whether the coroner's office -- a division of the Sheriff's Office -- can be trusted to make an honest and impartial determination about cause of death, the victim's toxicity and other relevant circumstances?

(Emphasis added.)
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Anonymous Coward, 19 May 2013 @ 7:11am

Re: Re:

...should be plenty of evidence for at the very least a manslaughter conviction...
Depends on if this ever goes to [trial] and if it goes to a jury in Simi Valley or not.

California has three kinds of manslaughter under Penal Code 192. We can neglect the third kind, vehicular, under 192(c). Even if there's some kind of trail, it doesn't look likely that the victim got run over on that trail.

That leaves

� 192(a) Voluntary--upon a sudden quarrel or heat of passion.

� 192(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.�

There's some further explanation of �Voluntary Manslaughter� and �Involuntary Manslaughter� at the Shouse Law Group's website. I don't necessarily endorse everything in these two articles, but they are top Google results.
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Anonymous Coward, 20 May 2013 @ 4:24am

Fair Trial Possible In Kern County?
According to a report today, not everyone in Kern County has been exposed to media coverage of David Silva's death. A significant number of people recently interviewed at the Kern County Fairgrounds hadn't heard the news yet.

�Kern Residents -- Fatal Police Beating Didn't Happen in a Vacuum� by Sandy Close and Raj Jayadev, New American Media, May 20, 2013

�according to some two dozen attendees at a health care fair here interviewed by New America Media.�

At least a third of those interviewed by NAM at the fair, held at the Kern County Fair Grounds on Saturday, had not heard about the Silva incident, although it's been front page news for the Bakersfield Californian's daily website, and on local TV. But recession-related closures of all but one Spanish language news weekly, along with Univision's Bakersfield bureau, has turned the city into something of a media desert, especially for non-English speakers.

We don't know yet whether anyone will be charged in connection with the homicide. Based on media reports, there is probable cause to charge someone with a crime. But that may or may not actually happen.

If someone is charged, then there may be a question as to whether or not they can receive a fair trial in Kern County. Or if the media coverage has been so pervasive and prejudicial as to make it necessary to move the trial somewhere else.
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Anonymous Coward, 20 May 2013 @ 4:51am

Re: Fair Trial Possible In Kern County?
Based on media reports, there is probable cause to charge someone with a crime.

�Additional search warrants executed� (Techdirt comment)

Compare:

�.�.�. no warrants shall issue, but upon probable cause, supported by oath or affirmation�.�.�.�.
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Anonymous Coward, 20 May 2013 @ 5:28pm

Witness video shows arrest of man who died in custody
�Witness video shows arrest of man who died in custody�, BakersfieldNow, May 20, 2013

BAKERSFIELD, Calif. (KBAK/KBFX) � Video was released Monday of a confrontation between Kern County deputies and a suspect who died in custody soon after that confrontation.�.�.�.

The newly released video was captured on a cellphone belonging to Francisco Arrieta. The disc containing the video was marked "Edited (Rotated)" and came from Aguero Investigations.
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Anonymous Coward, 20 May 2013 @ 5:33pm

Cell phone video of alleged beating death of David Silva released
�Cell phone video of alleged beating death of David Silva released�, KERO 23ABC, May 20, 2013

� 23ABC obtained a copy of the video at about 4 p.m.

In the first video, you can hear screaming and officers yelling commands for him to get down.

In the second video, it appears that Silva has stopped moving and officers are performing life-saving measures.�
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Anonymous Coward, 20 May 2013 @ 7:13pm

Witnesses intend to sue sheriff's department
Daniel Rodriguez, the new attorney for the witnesses who had their cellphones seized, has now said that his clients intend to sue the sheriff's department.

�Witness video shows no baton strikes�, The Bakersfield Californian, May 20, 2013

Rodriguez said Monday his clients -- those who had their cell phones confiscated by sheriff's investigators and possibly others -- will sue the sheriff's department for the alleged violation by investigators of their First, Fourth and 14th Amendment rights when they were detained for hours by investigators and prevented from publishing the video. They will also sue for assault and false imprisonment, Rodriguez said.
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Anonymous Coward, 21 May 2013 @ 2:52am

Missing Video Not Recovered
�Cell phone video released of David Silva, other cell phone video no longer on phone�, by Lia Steinberg, KERO 23ABC, May 21, 2013

According to Rodriguez, the other cell phone in question appears to be filming the scene but the video no longer exists, if it ever did.

"The question becomes, was the video ever there? If it was, was it deleted? Was it extracted? And for this kind of cell phone camera, you cannot tell whether it was deleted, extracted, or whether it was ever filmed. We can't tell," Rodriguez said.

Unfortunately, this news story does not tell us the make and model of the cellphone. If this does come to trial, no doubt more technical details will emerge.

Personally, this failure to recover any evidence regarding the video trouble me deeply. On the one hand, not everyone is someone like, just for instance the University of Michigan's J. Alex Halderman. On the other hand, while I'm certainly not J. Alex Halderman, I think it should have been possible to recover some evidence.

It might take a complete teardown of the cellphone. But when this attorney tells me that � you cannot tell whether it was deleted, extracted, or whether it was ever filmed,� well, I'm kinda suspicious about that statement.
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Anonymous Coward, 21 May 2013 @ 3:37am

Witnesses have criminal history
Channel 17 reports that four of the witnesses have a criminal history.

�Video released in deputy beating�, KGET, May 20, 20113

This is not the first conflict with law enforcement for four out of the six eyewitnesses.

Maria Melendez has a criminal history dating back to 1988. That includes four drug convictions, two DUI convictions, and a hit-and-run conviction.

Melissa Quair has seven separate cases dating back to 2002 including convictions for welfare fraud, cashing bad checks, three counts of driving without a license, and two counts of driving on a suspended licensed.

Sulina Quair's criminal history dates back to 1997 and includes convictions for welfare fraud, burglary, two counts of driving without a license, two counts of driving on a suspended license, and DUI.

Francisco Arrieta's criminal record dates back to 2001 and includes a weapons conviction, DUI, three counts of driving on a suspended license, and hit and run.
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Anonymous Coward, 21 May 2013 @ 3:56am

Sheriff needs to 'Evaluate' strikes to head
Kern County Sheriff Donny Youngblood has told the Los Angeles Times that �you have to evaluate� baton strike(s) to victim's head.

�Cell videos show man screaming as he's restrained by deputies�, by Richard Winton, Los Angeles Times, May 20, 2013

"Baton strikes were used, but what I don't know is how many and where they were on the body and if they caused significant injury that caused death," he [Sheriff Donny Youngblood] said.

Youngblood said the baton is a less lethal weapon, and because of that its use doesn�t usually lead to deputies being placed on leave. But he said the head is not an appropriate place for a baton strike.

"Sometimes in the heat of battle, the baton doesn't go where you want it to go.... If someone has 20 baton strikes to the head, OK, that is easy for us. But when there is a fight or scuffle and a baton strike goes where it should not ... then you have to evaluate,� he said.
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Anonymous Coward, 21 May 2013 @ 4:06am

Re: Sheriff needs to 'Evaluate' strikes to head
Kern County Sheriff Donny Youngblood has told the Los Angeles Times that �you have to evaluate� baton strike(s) to victim's head.

Carefully compare Sheriff Youngblood's �evaluation� of head blows in the Silva case against the Sheriff's review board findings in the David Lee Turner case. In the Turner case, the Sheriff's Department found that a deputy's decision to shoot and kill Turner was �within departmental policy�. Turner had hit another deputy over the head with two beer cans in a plastic bag �and was poised to hit a second blow� when he was shot.

�Sheriff's review board: Fatal shooting of David Turner within policy�, by James Burger and Jason Kotowski, The Bakersfield Californian, July 18, 2011

Turner stopped complying and walked away from the deputies, Youngblood said. A deputy, trying to stop Turner, struck him in the leg with a baton.

Turner then raised a bag he was carrying that contained two 24-ounce cans of beer and swung it "tomahawk-style" down on Deputy Aaron Nadal's head, Youngblood said. Nadal went into a defensive position and Turner again began raising the bag -- which weighed more than three pounds -- to strike Nadal.

Kraft pulled his gun and fired twice, hitting Turner. Turner was taken to Kern Medical Center and died about two hours later.
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Anonymous Coward, 21 May 2013 @ 4:30am

Re: Missing Video Not Recovered
� when this attorney tells me that � you cannot tell whether it was deleted, extracted, or whether it was ever filmed,� well, I'm kinda suspicious about that statement.

It was reported on Friday that the witnesses had obtained a new attorney.

At the news conference held Friday outside attorney John Tello's downtown Bakersfield office, Mr Tello said that the witnesses were now going to be represented by local attorney Daniel Rodriguez.

"Mr. Rodriguez has extensive experience and expertise in handling civil rights matters in federal court and has litigated numerous cases involving violations of citizen's rights successfully."

(source: KGET)

At the time, I didn't bother to comment on that aspect of the case. There might be many reasons for the witnesses to obtain new representation.

But when I add the fact that the previous attorney has dropped his representation together with the suspicion that the new attorney is not necessarily telling me the truth here�

What make and model was this cellphone? What kind of memory technology does it use?
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Tara, 14 Jun 2013 @ 12:36am

Re: Re:
Yes
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