Fort Worth justice says traffic stop video too often missing, ignored in DWI cases

Last week I praised the notion of police headset cams and said that dashcams required in Texas' racial profiling law, where they had been installed, were generally well received. In response, commenter "Old Cop" immediately chided my naivete:

It's amazing how many officers modern dash-cams "malfunction" when the facts surrounding the contact are in question and may not be favorable to the agency or the case at hand.

Sad commentary on the level and integrity of many of today's investigations.

Now, over at Liberty and Justice for Y'all we learn that Justice Lee Ann Dauphinot on Fort Worth's 2nd Court of Appeals shares Old Cop's concerns, chastising her colleagues in a recent dissent for a "terribly disturbing" decision by her colleagues to rely "on the officer's testimony to the exclusion of the contradictory evidence of the video record." As it turned out, among other discrepancies, "At trial, Officer Evans described Appellant as unable to stand without swaying or holding on to the wall and unable to properly perform the field sobriety tests. The videotape reveals that Appellant swayed less than the officer and that Appellant performed substantially better than she did on the field sobriety tests." Officer testimony should not be accepted at face value over contradictory video evidence, she opined. The majority disagreed and affirmed the conviction.

As highlighted at LJY, Dauhphinot went on to express what she characterized as commonplace concerns about missing or malfunctioning video. She put it so well, I'll give her the last word:

Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. See Tex Code Crim. Proc. art. 2.133-.135. The City of Fort Worth has conscientiously provided the means for complying with this law. ...

An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record. ...

At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, then is the officer not obligated to make sure that there is tape in a traditional video camera or that a digital camera is activated? When the actual recording conflicts with the officer’s testimony, the defendant’s testimony, or another witness’s testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.