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Lawyers didn’t show photos that could have helped police officer

(10/2) If deleted photos cost a Thurmont Police officer his job, could recovering the same or similar photos have saved it?

The question is not as hypothetical as it might seem. Though Lt. Shawn Tyler resigned from the Thurmont Police Department in February over photos he deleted related to an internal investigation, an investigation by The Dispatch has found that the photos may not have been lost. Attorneys in the case with which the photos were associated possessed either the deleted photos or similar photos, which the assistant states attorney on the case said she believed were the same photos and Tyler himself has identified as the “exact same” photos he deleted.

The Dispatch’s investigation also shows two big questions have yet to be answered by involved parties: Why didn’t either the assistant states attorney or the defense attorney in the case show the photos that did exist to Tyler during a hearing on the matter and have him identify them as either similar to or the ones he deleted? And, what would have happened had the attorneys shown the photos to the court?

Taking the photos

The deleted photos showed the shoes of Daniel David Jenkins of Thurmont. Former Thurmont Police Officer DiAnne Tackett arrested Jenkins on assault charges on Aug. 18, 2007. To Tackett, a pivotal point in charging Jenkins with felony assault was whether or not there was blood on Jenkins’ shoes. Tackett reported that she saw no blood, and as a result, charged Jenkins with a lesser degree of assault.

The assault victim’s father complained to Tyler, Tackett’s supervisor, that the charge wasn’t severe enough. Tyler decided to review the quality of Tackett’s work, her rationale for the lesser charge and why she had failed to prepare the case by a deadline Assistant States Attorney Theresa Bean had said she needed to meet. When Tackett explained that she hadn’t seen blood on Jenkins’ shoes, Tyler asked if she had taken photos. Learning she hadn’t, Tyler had a corrections officer at the county detention center take photos of Jenkins’ shoes and e-mail them to Tyler.

The photos did not show blood on the shoes. Tyler asked Tackett, who said she could describe the shoes, to do so. She was unable. Once the pictures had served Tyler’s purpose, he deleted them from his computer, although it was never determined whether the images remained on the computer’s hard drive. During the February 6, 2008 hearing to dismiss the Jenkins case, because the photos had been deleted, Tyler said he deleted them because “I didn’t believe they had evidentiary value for the purposes I had taken them.”

Bean thought otherwise. Shortly after Tyler deleted the photos, Bean began inquiring about the photos through a number of e-mails and Tyler continued to tell Bean he had deleted them, according to a copy of notes Tyler kept at the time, which The Dispatch obtained from a source familiar with the case. When contacted, Tyler would not comment, but he did confirm the notes were his.

When photos become evidence

On August 29, 2007, Tackett filed a complaint against Tyler for creating a hostile work environment for her because of the internal investigation. Though the charges were later found “non-sustained,” the complaint led to Tyler being disciplined by Thurmont Police Chief Greg Eyler for deleting the photos against a departmental general order. Thurmont Police have a general order not to delete evidence.

During the Feb. 6 hearing, Bean told the court she had requested the evidence be preserved, but her request was ignored. However, according to e-mails exchanged at the time between Bean and Tyler, by the time Bean began requesting that the photos be preserved, they had already been deleted, something which according to the e-mails, Bean should have already known.

In the e-mails, Tyler told Bean at 9:30 a.m. on Aug. 30, 2007, “I don’t have pictures of the shoes.”

At 10:09 a.m. the same day, Bean e-mailed Tyler back requesting the photos he had just told Bean he didn’t have. “Let me be perfectly clear, the photos you took of those shoes are relevant and in my opinion, exculpatory and I need them,” Bean’s e-mail reads. Furthermore, she tells Tyler not to “destroy, alter or delete the photos in any way.”

During the dismissal hearing, Jenkins’ attorney, Alan Winik, presented the e-mails out of chronological order. As a result, it appeared as if Tyler was refusing Bean’s request, though the judge could have read the date and time stamp. The Dispatch has no basis to believe Winik was trying to mislead the court.

In addition, Tyler’s notes indicate that this was not the only e-mail exchange where he told Bean the photos had already been deleted.

Retrieving the photos

When Winik learned of Tyler’s photo deletion from Bean, he filed a motion to dismiss the case. At the Feb. 6 hearing, Winik said that because the photos had been deleted, his client had been denied access to exculpatory evidence. Neither Winik nor Bean reported at the hearing that, in response to a discovery motion for exculpatory evidence made by Winik on October 23, 2007, Winik had received from Bean a set of photos that were either duplicates of or similar to the photos Tyler had obtained of Jenkins’ shoes while Jenkins was in the detention center. Bean’s response was filed with the court, but not the photos themselves.

When Tyler was called to the stand at the hearing on Winik’s motion to dismiss, Winik had Solt advise him of his rights. Winik then criticized Tyler for deleting the photos. Bean asked no follow up questions of Tyler, leaving him unable to explain himself.

States Attorney Charlie Smith said Tyler knew he wouldn’t be asked any questions in an effort to minimize the damage Winik would try to do. Tyler’s notes indicate he believed that Bean would be asking him questions.

Neither Winik nor Bean explained to the court that photos of the shoes, either identical or similar to the Tyler photos, had been recovered from the detention center computer system and both attorneys had had them for months. It is not clear whether the photos recovered are the same as the deleted ones, but Bean told The Dispatch she believed they were. At the hearing, Winik only referred to the Tyler photos, stating they had been “destroyed willy nilly and [are] no longer available.” Bean did not object to the comment or produce the recovered photos.

In a February 20, 2008 e-mail from Bean to Smith, which was part of an e-mail obtained under a Freedom of Information Act request, Bean wrote that she received pictures of the shoes from Lt. Tim Selin, commander of technology services with the Frederick County Sheriff’s Office – Corrections Bureau, on Sept. 4, 2007.

When asked why she did not disclose the existence of the photos to the judge during the hearing, Bean said, “We recovered three pictures from the jail. They were of shoes, but I can’t say they were the shoes, though I assume they were.” When asked why she didn’t ask Tackett (who described the shoes in detail during the hearing) or Tyler if the shoes in the recovered pictures were Jenkins’, Bean did not explain. She referred further questions to Smith.

The Dispatch obtained the photos under a Freedom of Information request and showed them to Tyler. He said of the pictures, “These appear to be the exact same pictures I received from the detention officer.”

Though the case wasn’t dismissed, Tyler was severely criticized by both attorneys and the court for deleting potential evidence that may have favored the defendant. And the court ruled that when the case went to trial, the jury would be told of the deletion of the photos and their potential value to Jenkins’ defense. Again, the recovered photos were not mentioned.

Who knew the photos existed?

“Everybody knew they (the photos) existed,” Smith said. “Shawn knew it. The judge knew it because she had the discovery document in front of her. Winik knew it because he got it in discovery.”

Statements by Solt during the hearing suggest otherwise. At one point in the hearing, she noted that the pictures “existed” and had “clear evidentiary value.” A short time later, she said, “The deliberate nature of the loss of this evidence is very concerning to the court.” Solt never mentions the recovered photos and The Dispatch has no information suggesting Solt was aware of their existence at the time of the hearing, despite reference to them in the disclosure filing previously copied to the court file.

Tyler’s notes also state that he didn’t know of the existence of the recovered photos until after he had resigned.

Smith said he considered the case successful because Solt did not grant Winik’s motion to dismiss the case and the state ultimately secured a conviction. Still, the case harmed Tyler’s reputation and his career.

Smith said that what happened following the hearing was unfortunate. “I thought Shawn did a good job,” Smith said. “He gave us a valid explanation for why the photos were deleted.”

Tyler’s resignation

A media report of the hearing apparently led to an unusual Saturday special session of the Thurmont Town Commissioners in which they voted to have Eyler “initiate an emergency suspension, and investigation of a town employee.” That employee was Tyler, who chose to resign the following day.

Since that time, comments have slowly been made public showing that at least some town officials feel that Tyler didn’t receive justice. Smith also has regrets.

“I think Shawn was a good officer and I think the whole thing played out badly for him,” Smith said.

So the questions the attorneys have not answered still remain: Why weren’t the recovered photos introduced at the hearing and why, if not, did the states attorney office not determine for certain whether the recovered photos were the same as the deleted photos or even if the photos were still on Tyler’s computer hard drive.

And the question that will never be answered is: What would have happened had the court seen the recovered photos?


- Photos courtesy of Frederick County Sheriff’s Office

Two of the photographs deleted by Lt. Shawn Tyler, formerly of the Thurmont Police Department. Attorneys had these photos, recovered from the county detention center computers, in their possession, but did not present them during the hearing. The photos were said to have been irretrievably lost and Tyler eventually lost his job because of it.

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