January 11th 2017
HAMILTON, OH (FOX19) -
Jeff Meadows stood in his law firm's conference room watching that now-infamous Butler County Sheriff's Office dash cam video.
The coffee cup he held hit the table. Jeff Meadows just shook his head.
He also said a few words we probably shouldn't write down here.
Meadows was getting his first look at the video since it played in front of a jury during a Feb. 10, 2016 criminal trial that Meadows was trying. It came from Butler County Sheriff's Deputy Mike Brockman's car from the December 2014 traffic stop that landed Kevin Gray and Chris Ebbing in the county jail with felony charges.
That tape is now at the center of a federal civil rights lawsuit against Sheriff Richard K. Jones, Deputy Jasen Hatfield and Deputy Mike Brockman. Gray's suit alleges, in part, the deputies edited the original dash camera video before trial and hid it from Gray's defense team for more than a year.
Brockman's car, it turns out, was recording the aftermath of a traffic stop involving Gray and Ebbing. A sober Gray picked Ebbing up from a Hamilton bar when Deputy Jasen Hatfield pulled them over, claiming Gray had made an illegal U-turn.
Gray's defense team never knew the tape existed until the first day of trial. Gray claimed it was edited when more than six minutes were missing.
Now, there are allegations the tape was edited again—after trial. This time, while the tape was supposed to be locked away inside a Butler County evidence room.
"This does not appear to be the same video that way played during trial," Meadows said, "Somebody ought to be asking what happened to the original video."
The questions now: How did this happen? Who did it? And, why?
IT'S NOT THE SAME TAPE THE JURY SAW
On Dec. 20, a Butler County judge signed an order allowing us inside the courthouse to make a copy of "State's Exhibit #8" - the VHS tape from Deputy Mike Brockman's patrol car. An employee inside the court administration office unsealed the tape from an envelope and placed it on a desk.
The court allowed us to bring in our own VHS player to make a copy since the courthouse did not own a VHS player, we were told.
We wound the tape all the way to the beginning. The first thing you see is a blue screen before a menu appears. Then, the video shows Brockman speeding toward South B Street minutes after Deputy Jasen Hatfield radioed in he "had one fighting."
The video doesn't show the Gray traffic stop scene or any of the deputies involved because Brockman's cruiser was blocked by a row of cars at the used car lot where the stop happened.
The stop happened just before 3 a.m. on Dec. 12, 2014. When the clock in the top-right corner of the video reaches 3:00:06 a.m., the video turns to a blue screen. It stays that way for less than two seconds, then the video continues.
When the video comes back, the time stamp on the display shows 3:06:17. No one with the sheriff's office or the prosecutor's office has explained how—or why—this happened or what happened to more than six minutes of video.
"We had the snowy or staticky background, then the tape resumes six minutes later," Meadows told FOX19 NOW Investigative Reporter Jody Barr, describing the version the jury saw at trial.
"It tells me this video appears to have been altered since we were in trial," Meadows said.
Meadows and his client, Kevin Gray, both contend the video the jury saw during trial cut out to the blue screen, then white noise continued for a little more than six minutes—the same amount of time that passed between the time the clock showed before and after the video disappeared at 3:00:06.
"But, that snow; that fuzz, has since been edited out of the video tape since trial," Gray said as he watched the version of the video we obtained from the Butler County courthouse.
In order to independently verify what the jury saw, we attempted to contact all 12 jurors and one alternate. We were only able to speak with two. The others either didn't return messages or did not have working phone numbers.
Juror 349 told us he "remembered some issues" with the VHS being discussed at trial, but didn't remember specific details about what the video showed during the span of time the video dropped out.
Michaela Perkins, Juror 531, told us in a Jan. 4 phone call that she remembered the video "stopped, then picked back up some time later," but could not recall the number of minutes that passed. Perkins said she specifically remembered "a white, snowy" screen during that span of time.
We also pulled the audio recording of the two-day trial, to see if we could gather information from that to verify the tape shown to the jury was different than the one in evidence now. The audio record appears to support the allegations the trial tape was edited.
In the audio recordings, Brockman is testifying about what the jury is seeing in the video. When the video drops out at 3:00:06, Brockman said, "And that's what it shows for the remainder."
There's silence on the recording for the next seven minutes, 54 seconds as the video plays for the jury. That silence is eventually broken when Meadows tells the bailiff, "Pause that for a moment." It was at that point Meadows said he saw the recording start back up.
Perkins also remembered another element from the trial version of the tape that was not on the version we obtained from the court's evidence room: "I'm pretty sure it pulled away," Perkins recalled of Deputy Brockman's patrol car at the end of the video.
The version in the court's evidence room now does not show the car driving away. The video stops and the screen turns blue. There is a second recording on the tape, which starts 16 seconds after the Gray recording ends with Brockman's car still sitting stationary along South B Street.
Gray and Meadows told FOX19 NOW the jurors' memory of Brockman's car pulling away was accurate and they both remembered the same. It's evidence, both men believe, that someone edited the original VHS evidence after the trial ended on Feb. 10, 2016.
HOW COULD THIS HAPPEN?
"It shouldn't be possible," Jeff Meadows said during our Jan. 6 interview. "Seems to me our county prosecutor ought to be asking that question."
We asked Butler County Prosecutor Mike Gmoser for an interview to include in this report. Gmoser has either not responded or not returned messages during any of our investigations into the case of the State of Ohio v. Kevin Gray. This time, Gmoser responded when we asked him and his assistant prosecutor, David Kash, for interviews concerning allegations their evidence was manipulated after trial.
"I understand my trial asst. prosecutor has informed you that the tape as received on the date played in court was placed in evidence at that time and has not been touched since by my office and has been in the custody of the court. Please direct any such concerns to the court. Beyond that, I have no comment," Gmoser wrote in a Jan. 6 e-mail to FOX19 NOW.
Kash also responded that day. Kash prosecuted the case against Kevin Gray. Kash's response came over the phone.
"I don't have an explanation for you," Kash said in the nearly 15 minute phone call. Kash contends the VHS tape was played in court, then turned back over to "the court" where it's been ever since, he said.
"I didn't touch it," Kash said in the phone call, "If the court's manipulated it, I can't control that."
Kash also would not agree to an interview or to take a look at the video we copied from the evidence room.
"I might not remember specifics," Kash told FOX19 NOW when explaining why he would not take a look at the current version of the tape.
We contacted Butler County Sheriff Richard Jones and deputies Jason Hatfield and Mike Brockman, asking all three for their sides in this report. None of the three responded, but BCSO Chief Deputy Tony Dwyer did.
In an e-mail, Dwyer told FOX19 NOW, "I will state that once the tape was turned over to the court during the trial, no one from the Sheriff's Office has had access to it in any manner whatsoever."
The final people in the process are the Butler County Evidence Custodian and the court's bailiff. The evidence custodian is responsible for securing and accounting for evidence during and after criminal trials, according to Rob Menke. Menke is the Manager of Court Administration for the county.
Menke later directed our questions to Butler County Court Administrator, Wayne Gilkison. In a Jan. 9 phone call, Gilkison declined our request for an interview with the evidence custodian.
Gilkison told FOX19 NOW the county's "procedures were followed," and after he reviewed the evidence log for the VHS tape, Gilkison said he "found no discrepancies" with the log.
The Butler County Common Pleas court has its own evidence locker where this evidence is stored, according to Gilkison. That evidence room is not a part of the sheriff's office, Gilkison confirmed.
We asked Gilkison to see the evidence log to see who had the tape, why and when. The trial ended Feb. 10 at 5:27 p.m. The evidence log shows the evidence wasn't turned in to the court's evidence custodian until Feb. 11, 2016—the day after the trial.
The evidence was turned in on Feb. 11 by Butler County Bailiff Ed Martin, the evidence log shows. Martin's name is at the bottom of the log, with evidence custodian, Erica Dierling's signature, dated Feb. 11, 2016.
Martin, a former Butler County deputy, is not listed as an active bailiff on the county's court web site and the sheriff's office told FOX19 NOW that Martin had retired "for several years." We have not been able to reach Martin for comment to include in this report.
ALLEGATIONS OF PERJURY
Jeff Meadows spent nearly 14 months preparing a defense for Kevin Gray. That also meant collecting the evidence the prosecution and the Butler County Sheriff's Office had on Gray.
Despite court-approved discovery orders, the trial record shows Meadows did not get everything the Butler County Sheriff's Office had—and planned to use—against Kevin Gray. Namely, that VHS tape, now marked exhibit #8.
"I was stunned at this point, to get the first shocker that after a year of the case pending, 'Oh, yeah, by the way, there is a video,'" Meadows said. Meadows and Gray found out the video existed during a break in the first day of trial. The men later learned, through two Butler County Sheriff's deputies' testimony, that a dash camera video from the stop was never logged into evidence and was stored for more than a year in Brockman's basement.
"I always had it," Brockman testified, "It was just a fact of locating it."
Trial transcripts also show Brockman testified he had the only dash camera recorder in the sheriff's office, despite the sheriff's office denying in multiple letters leading up to Gray's trial that of any of their cruisers had a camera system installed.
"We believe the first tape Brockman and Hatfield handed over was edited in the first place," Gray said. "We knew when the video didn't have audio recorded, something was up. Now, when we see the very next traffic stop with perfectly-clear audio, there's no doubt someone edited that original recording."
Meadows believes Brockman committed perjury during the trial when he testified about the VHS recording and why his audio was not working.
"I wanted the audio," Brockman told the jury, "That was the only thing that would have been valuable because of Mr. Gray and what he said in the back, which there's a microphone in there. And when it was installed from the other car up until the car I have now, it wasn't set correctly. I've since corrected it, which that's a little bit over my head. But, the audio was off," Brockman told prosecutor Kash while under oath during the trial.
Brockman testified that he had the dash camera system since around 2005 and had it installed in a new Crown Victoria around 2011. It was the same car he was driving the night of the Kevin Gray stop in December 2014. The trial transcript shows Brockman claimed he never realized until after the Gray stop that his audio had not been working since 2011.
"Presumably there's some maintenance log that shows when this camera that you have was recently fixed," Meadows asked Brockman during a cross-examination. "On the menu, it was correctly set," Brockman replied, "And it transitioned from one car to another so it had been that long."
"Are there maintenance logs that the sheriff's office maintains that I can now check to verify when this actually took place," Meadows asked Brockman. "That would just be confined within the unit of turning it on or off," Brockman replied.
Meadows also pointed out the menu setting between the Gray stop and the next stop on the tape had the same exact audio settings. The menu shows only one setting to change the audio recording on the recorder. One video had audio, the other did not.
"By gosh, there's audio here when it appears to have the exact same settings," Meadows said as he watched the video in his office last week, "I'm not going to make accusations at this point in time, but it certainly creates some questions that somebody ought to be pursuing."
Brockman also denied turning the recorder off during the stop. Assistant Prosecutor David Kash asked Brockman about that, "Do you recall, did you manually override your system, turn it off and then turn it back on?"
"No," Brockman answered.
But, Brockman's own dash camera video likely tells a different story. In the video, you see Brockman manually setting the date and time before his shift. The menu also shows the recorder set to an eight-hour record time. Once the recording starts on the Gray stop, a counter in the bottom-left of the screen starts counting down the minutes left of the eight-hour record setting.
When the Brockman video stops recording at 3:00:06 a.m., the counter shows 7:53 left of recording time. When the video picks up again, the counter shows 7:53 left. That would indicate the recorder, Meadows contends, was likely turned off.
"It appears that the videotape was manually turned off, which would be the only explanation for why there's still the same amount of time left on the tape to record. But, there's six minutes missing from the clock on the upper right hand corner."
EVIDENCE TAMPERING AFTER TRIAL
Had we not requested a copy of the dash camera video, it's possible no one would have ever known there was a discrepancy between the version of the VHS tape shown at trial and the VHS tape held in the county's evidence locker today.
At least, that's Kevin Gray's position on the matter at this point.
No one knew until we aired it. After all, the trial happened ten months before and Gray said he had no clue the tape still existed. That's until we aired the dash camera video on Dec. 22.
Soon after our broadcast, Gray called to ask if we had edited the portion of the tape where it stops recording to shorten it for air.
We had not.
The version we aired contains a blue screen for two seconds, then the recording starts again. Gray informed us the night of Dec. 22 that the version we got from the county's evidence locker was not the version the jury saw.
What no one at the sheriff's office or the court has denied—or responded to in detail—is why the version we have now does not appear to be the same as the original. We asked Butler County Assistant Prosecutor David Kash to watch the version we have now.
"This tells me somebody's had their hands on this video since it was pulled out of the VHS player in the courtroom during the trial," Meadows said, "I find it completely incomprehensible and unbelievable."
Meadows said he plans to meet with Butler County Prosecutor Mike Gmoser to ask for a criminal investigation into his belief that Brockman committed perjury and to find out who edited the VHS tape after the trial.
"This really isn't any different than taking evidence of drugs; like two pounds of cocaine, into evidence at the end of trial and then when you go back to look at it later, there's only a pound and three-quarters. They wouldn't ignore that, so I hope they don't ignore this," Meadows said.