An accidentally deleted video won’t derail a child rape case scheduled for trial later this month.
During a hearing Monday, Sept. 9, in Blount County Circuit Court, a forensic investigator said she accidentally deleted nearly five dozen files from 2016 while attempting to back them up in early 2018.
Christina Copland, an investigator with New Hope — Blount County Children’s Advocacy Center since 2007, said she lost 57 files completely, and about 14 have no audio.
In a phone interview about the potential impact of the lost files, New Hope Executive Director Tabitha Damron said, “To our knowledge this is the only case that has any charge or any pending charges.”
New Hope, which coordinates and delivers services for child victims of physical and sexual abuse, conducted 316 interviews in 2016, Damron said.
The court hearing Monday was on motions in the case of Scott Allen Briggs, 32, East Lincoln Road, Alcoa, who is accused of raping a then-4-year-old boy in January 2016.
Although Copland started a video recording system the evening she met him, the boy was upset and never entered the interview room to answer questions, she and a Blount County detective said.
Judge David Duggan denied a motion by defense attorney Rick Owens to dismiss the case, scheduled for trial Sept. 24, because of the missing video file.
Copland explained during the hearing that she was trying to back up files to an external hard drive when they were deleted.
She contacted a Maryville police officer who handles internet crimes against children for assistance, and he created a mirror image backup of the hard drive. Neither he nor a firm in California that the local internet technology company PCS recommended was able to recover the files.
Damron said New Hope has been working with PCS and since then has installed a new NAS (Network Attached Storage) system with built-in redundancy. New Hope also backs up files to an external hard drive and makes a physical copy on DVD of any interview in which a child discloses an abuse charge.
One interview file could include up 20 gigabytes of data, Copland said, and last year New Hope conducted 384 interviews.
While New Hope has been studying further ways to secure files, Damron said, “This is a huge ongoing expense for us.”
“Most CACs (child advocacy centers) are not the keepers of the records,” she said.
The NAS system alone cost about $2,500, she said, and New Hope works to ensure the dollars that come in go to services for children.
Never on video
Both Copland and Detective David Henderson of the Blount County Sheriff’s Office testified that the boy in the Briggs case never appeared on a lost video.
“The child was scared and crying and didn’t want to go in the room,” said Henderson, who was sitting in an observation room at New Hope that night and could hear the boy.
The judge repeated several times that he found Copland and Henderson credible, and said he had no reason to believe they were not telling the truth. Paper records they created the same time also indicate the boy never was interviewed that day.
“Essentially we’re talking about a video of nothing,” Assistant District Attorney Ashley Salem said.
Owens argued that the boy’s demeanor and refusal to go in the room could potentially clear his client.
Duggan agreed that if the video existed, Owens would be entitled to it, and it should have been retained. “There was a duty to preserve what took place in that room even if nothing took place,” the judge said.
“I think there was negligence here,” he said. “I don’t find any reason to believe there was gross negligence.”
Duggan also noted that although he hasn’t reviewed the evidence to be presented at trial yet, there appeared to be other significant evidence that could weigh one way or the other. Therefore, he denied Owens’ motion to dismiss the case.
The judge also asked that prosecutor Salem check with PCS to ask specifically whether there was any possibility to recover the file directly from the external hard drive, instead of the mirror backup.
Duggan denied a motion to throw out DNA evidence from Briggs, noting the man had received his Miranda rights and consented to a cheek swab. Owens had argued that before the buccal cells were tested, Briggs said he wanted to revoke his consent and consult an attorney. The judge said that after giving permission and the sample Briggs, “in a somewhat astounding fashion to me,” sat there exchanging text messages on his phone. “He sits there for not an insignificant amount of time.”
Duggan quoted Briggs from a video of that interview saying after the swab was taken, “She’s telling me I should get a lawyer before I give you (‘a’ or ‘the’) DNA sample.”
“He consented to it; he freely gave it,” Duggan said, and while Briggs could have decided to stop talking to investigators he never said, “I want a lawyer” or “I want to stop.”
Duggan granted the state’s motion to limit evidence of the victim’s past sexual behavior. “Right now I have no reason to believe this 6-year-old child has any sexual history,” Duggan said, adding that he could reverse his own ruling after reviewing a 2018 video in which the boy was interviewed after allegedly being the victim in an incident on a school bus. Salem said no one was prosecuted in that incident.
Duggan asked both attorneys for further input on Owens’ motion to separate the child rape trial charges against Briggs of evading arrest from felony reckless endangerment.
A BCSO deputy told the court Briggs agreed over the phone in March 2018 to turn himself in on the warrant for the child rape charge but about three days later hadn’t done so. When deputies tried to pull him over on Big Springs Road, Briggs led them on about a two-minute pursuit at speeds exceeding 90 mph, until he ran out of gas, the deputy said.
Owens argued that hearing the evading arrest charge at the same time might lead a jury to assume Briggs is guilty of the other charge.