Posted: Feb 20, 2015 10:02 PM CET Updated: Feb 22, 2015 1:19 PM CET
By Jason Riley

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LOUISVILLE, Ky. (WDRB) — When Metro Corrections Breathalyzer technician Brett Rehm was accused recently of lying in court records –potentially jeopardizing dozens of DUI cases — the Louisville Metro Police Department quickly discovered evidence that absolved him of wrongdoing.

A police investigator acquired from the jail a surveillance video recording “clearly” showing the incident that took place inside the jail’s alcohol breath testing lab, which cleared Rehm last month.

But that case has brought to light what some say may be an even more troubling issue: Defense attorneys had no idea Metro Corrections was recording defendants in the Breathalyzer lab, despite making repeated requests for videos from that room in hopes it would help their clients’ cases.

“I had never seen one of those (surveillance) videos and I have asked for them continually,” said attorney Paul Gold, who has handled hundreds of DUI cases. “There are a lot of people who have been tried, and it was an unfair trial because the information that should have been provided was not. “

Under state law, prosecutors are required to turn over any evidence that may be favorable to the defense. And the United States Supreme Court has ruled that hiding evidence favorable to the defense violates a defendant’s constitutional right to due process.

The Jefferson County Attorney’s Office, however, said they also only recently found out the jail had a surveillance camera in the lab that recorded and retained audio and video of alcohol breath testing, so prosecutors were unaware there was evidence to turn over. Until the Rehm case, prosecutors believed it was just a real-time surveillance camera used for safety purposes.

Metro Corrections Major Endora Davis said the surveillance camera has been at Metro Corrections since the building opened in 1999, but originally was recorded on a VHS system and kept for only 72 hours. In 2013, the equipment was updated to a DVR system that records up to two years.

However, Davis said “not until recently” did the county attorney’s office “inquire about the existence of the camera.”

Defense attorneys say the county attorney’s office had an obligation to ask the jail what video was available that could be considered exculpatory, or beneficiary, in cases.

“They should have known,” defense attorney Benham Sims said. “The prosecution has a duty to investigate. Do I have concerns on how this was handled? Yes.”

Jefferson County Attorney Mike O’Connell acknowledged there was “clearly a lack of communication between us and the jail and vice versa. Had we known those tapes were available, we would have provided them.”

The existence of the surveillance video, defense attorneys say, could have a major impact on current DUI cases and those that have already gone through the court system.

For example, Gold had a case in which a client claimed last year as part of his defense that Rehm assaulted him while his hands were handcuffed behind his back.

Gold asked for video of the incident, but none was provided. The man was convicted. Now Gold is asking Metro Corrections if it saved video of the incident.

“There could be a whole new way of looking at this case,” Gold said. “I don’t know, but I owe it to my client to check it out.”

Gold said prosecutors for the first time last week turned over a surveillance video from the lab for one of his current cases.

The video appears to show a Breathalyzer technician taking her eyes off a DUI suspect by leaning against a wall, with her forearm covering her face.

Gold said this was “solid gold” for his case, as Breathalyzer operators must by law constantly observe a suspect for 20 minutes before giving the test to ensure he or she avoids any actions that would affect the test.

Given that he has made dozens, likely hundreds, of request for these videos over the years, Gold called the initial video he received “the tip of the iceberg.”

O’Connell said the office will “vigorously defend” any requests to overturn past convictions based on the newly discovered video evidence.

And he added that he has asked the jail to adjust the camera where it will no longer record the alcohol breath testing, citing a state law prosecutors believe forbids it.

Gold, among other lawyers, said it was interesting that the first time defense attorneys learn about the surveillance videos is “when it will help one of their own,” in clearing Rehm.

In November, the County Attorney’s Office amended two drunken driving cases in which a lapel video was introduced of Rehm appearing to tell a police officer he did not smell alcohol on the breath of a defendant — but then writing in court records that he had.

But last month a police investigator said she reviewed a surveillance video that shows the entire room – and includes audio — and concluded in her investigation that Rehm made those comments about a prior suspect who had been given a breathalyzer.

While this case was what prosecutors say alerted them to the recorded videos, defense attorney Keith Kamenish said at least one prosecutor knew about the recordings years ago.

In 2012, after Darnell Mallory was arrested on a DUI charge and taken to the testing lab, he was charged with assault after Rehm claimed Mallory attacked him.

But after Mallory filed a complaint against Rehm, the jail’s internal investigators showed the footage to Kamenish and a former prosecutor, according to Kamenish.

“Rehm was the aggressor,” Kamenish said in an interview. “He lost his cool with my client.”

Rehm was cleared of any wrongdoing but the prosecutor dismissed the assault case after watching the video, according to Kamenish.

But O’Connell noted that, at the time, the jail was typically only saving the videos for three days. That particular video was saved longer only because the inmate had filed a complaint and an internal investigation was initiated.

O’Connell said it was ridiculous to believe prosecutors knew about retained videos and intentionally didn’t turn them over to defense attorneys.

“To suggest that what happened here was intentional or there was some nefarious reason for this to occur is absolutely absurd.”

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