The Examiner's story has since been republished in
DigBoston, claiming that the Police Department lost an unknown amount of evidence and that the district attorney's office did not inform defense attorneys.
Police Chief Michael Wynn sent a release out Thursday night saying the hard drive failure only affected booking videos and that only a small percentage was lost. The department video and audio records all subjects being booked, though that's not required by state law. The hard drive storing those records failed on July 9, 2015.
"This Digital Video Recording system is separate from the required internal department record keeping functions, and is a stand-alone system," Wynn wrote.
According to Wynn's statement, there was a problem on June 22, 2015, retrieving videos requested by the district attorney's office. A few weeks later, on July 9, 2015, the hard drive crashed completely and "a new hard drive was installed that day by an outside vendor."
"At that time, it was undetermined if data from the failed hard drive was recoverable. The DA's office was initially informed of the DVR system issues by one of our crime scene investigators on July 13, 2015. No other records or data were impacted by this equipment failure," Wynn wrote.
In October, the faulty hard drive was a sent to a company in California in an attempt to recover the videos that had been lost in response to a request from Capeless' office. That cost the department $1,300, Wynn wrote.
"The DVR component of the current system is approximately 8 years old. Camera and control components are significantly older. We have not replaced the DVR system due to budget constraints in the current fiscal year," Wynn wrote.
"Last month, we were provided with an estimate for replacement of the DVR system, in excess of $30,000. This upgrade does not include any backup or redundancy. This will be submitted as a capital budget request for fiscal year 2017."
Wynn concluded by writing, "as with any organization requiring an increased dependence on technology, we do experience periodic equipment failures. Unfortunately, as this failure demonstrates, our breakdowns sometimes result in high profile exposure."
Meanwhile, Capeless said as videos of suspects were identified as being lost, the defense attorney for the individual was notified.
"When Pittsfield Police Department discovered the server went down, they notified us immediately," Capeless said in an interview Thursday afternoon. "We notified defense counsel on every one of the cases."
The booking videos are produced when either the prosecution or the defense believes they contain evidentiary material. He said any time either his attorneys asked for a video to be produced or the defense asked and it wasn't available, both attorneys were informed.
"In any case an attorney wanted to get the booking video, they were informed," Capeless said. "I have no reason to believe that it's had any substantive impact."
However, he wouldn't say there was no impact because potential evidence — such as a person saying something during booking or the actions of those being charged with operating under the influence — could have been used if not for the failure.
Capeless said he has faced similar issues in the past, remembering a time when a video camera failed.
"It's an unfortunate occurrence," Capeless said.
He said he's aware of only one case in which defense attorneys filed a motion claiming evidence had been lost. The judge ruled against the motion, finding police did not act in bad faith.
"The only negligence was that they didn't back it up," Capeless said.
The Bay State Examiner reporters asked for such a booking tape when looking into a case from last summer. Capt. John Mullin told them it was unavailable because of the hard drive crash. They were provided copies of other documents they requested.
After being told of the crash, the Examiner followed up with records requests and was given emails showing Capeless was made aware of the situation. The independent news source focuses on governmental abuse and transparency.
Because no other correspondences were provided, the Examiner says "months after learning about the hard drive failure, the DA's office still has not told anyone, including defense attorneys, about the loss — and no one from the police department or DA's office will speak with us about it."
Capeless said spokesman Fred Lantz did answer the reporters' questions. For questions he couldn't answer, such as the amount of evidence lost in the crash, he told the reporters to ask the Police Department.
Editor's note: Examiner reporter Andrew Quemere told iBerkshires on April 13 that the DA's office has not provided any documentation showing that defense attorneys were notified despite repeated requests and refused to answer questions, in contrast to the DA's statement.
