As pressure started mounting against State Police following controversial excessive force incidents, including the death of Ronald Greene, the phone of top agency Lt. Colonel Doug Cain was scrubbed of its data.
It’s a process known as being “sanitized,” and it appears to have erased the messages and other information from Cain’s phone. The timing is interesting: It came amid a state and federal investigation into Greene’s death.
Greene died in State Police custody in May 2019 after a high-speed chase. Greene’s family was first told he died in a wreck but body camera video – hidden at first – eventually leaked and was published two years later showing he was beaten.
The incident happened in the Monroe area.
The WBRZ Investigative Unit and Chris Nakamoto have spent more than a year investigating the case and reporting on the State Police cover-up that ensued. State Police tried as much as it could to maintain a narrative that Greene died as a result of a fender-bender.
State Police confirmed Cain’s phone was sanitized but said it could provide little other information because it kept no records.
Typically, the process happens when an employee leaves a state agency. However, the state has document-retention and hold policies in place if litigation is expected tied to an incident. Cain’s phone was wiped clean even though he never left State Police and with the likelihood of a lawsuit over Greene’s death.
Now, calls are growing louder for current State Police Superintendent Colonel Lamar Davis to place Cain on administrative leave – or fire him.
Chris Nakamoto originally received word from a source about Cain’s phone being cleared of data. State Police only verified it Thursday when it responded to a public records request and avoided elaborating on when the data was erased from the phone. State Police said there were no documents related to the process. In follow-up emails, WBRZ asked for the agency to talk directly with Cain about when his phone was cleared. A spokesperson eventually offered that Cain estimated it occurred in February 2020.
The month Cain’s phone was “sanitized” is the same month internal investigator Albert Paxton said he brought the Greene case file to the FBI. Federal prosecutors were already looking into the case after being contacted by Monroe-area district attorney John Belton.
That WBRZ report had a quote from Edmond Jordan, a Baton Rouge Democrat state representative who’s on this new eight-member committee the House of Representatives set up to investigate this scandal. Jordan’s doing a fairly intricate little dance…
State Representative Edmond Jordan sits on the new legislative committee formed to investigate the Greene cover-up. Jordan said he also recently learned of Cain’s phone being sanitized and that other phones were wiped clean, too.
“For me, it’s very disturbing,” Jordan said. “This is not something that’s unique. This is not a one-off situation that’s unforeseen. That’s why we have litigation holds, and we have them for years. Any time there is a threat of litigation, you need to preserve those records.”
Yeah, no kidding.
There’s a legal term for what’s happening here. It’s called “spoliation of evidence,” and it effectively means destroying evidence which might serve to prove the opponent’s case.
Spoliation of evidence is a term often used during the process of discovery. Spoliation of evidence happens when a document or information that is required for discovery is destroyed or altered significantly. If a person negligently or intentionally withholds or destroys relevant information that will be required in an action is liable for spoliation of evidence.
When a crucial document is lost by spoliation, the courts may try to infer the original information by applying spoliation inference rule. Spoliation inference rule is a negative evidentiary inference. When applying the rule, courts will review the altered document with inference against the spoliator and in favor of the opposing party. The theory behind spoliation inference is that when a party has destroyed evidence, it shows that the party had consciousness of guilt or other reasons to avoid evidence. Hence, the court will conclude that the evidence was not in spoliator’s favor.
Spoliation of evidence is an act that is prohibited by American Bar Association’s Model Rules of Professional Conduct, Rule 37 of Federal Rules of Civil Procedure, and Title 18 United States Code. Sanctions for spoliation are preventative, punitive and remedial in nature. Separate tort actions are also permitted.
American Bar Association Rule 3.4 prohibits a lawyer from destroying or assisting another in destroying evidence pertaining to a case. Likewise Title 18 of United States Code Sections 1503, 1510, 1512 and 1519 prohibits a party from destroying or assisting another in destroying evidence, and provides for criminal prosecution against the wrongdoer. Under Title 18 United States Code Section 1519, a wrongdoer can be fined in huge amounts and imprisoned up to 20 years.
That Edmond Jordan didn’t go there when WBRZ’s Chris Nakamoto interviewed him about Cain’s disappearing phone records is a bit surprising – this is a clear case of spoliation of evidence and it commonly attaches the presumption of guilt.
Edwards claims there was no coverup of the cause of Greene’s death. That’s a quite apparent lie and it’s entirely reasonable that his ouster as governor should be a consequence.
The Greene family and the National Bar Association, a predominantly black group of lawyers and legal professionals, have called for Edwards’ resignation. One imagines you’ll hear something similar from the LAGOP and some Republican politicians soon as well – though the reason you might not is that members of Jeff Landry’s and perhaps John Schroder’s camps would be reticent to do anything that would give Lt. Governor Billy Nungesser the opportunity to step into the governor’s mansion and thus be the incumbent in the 2023 election.
We’re less concerned about that, for three reasons.
First, there ought to be consequences for this disgraceful coverup and the manifest fraud it made of the 2019 gubernatorial election, and Edwards having to resign in disgrace or being impeached and removed would be fitting in that context.
Second, even with the Greene case notwithstanding anything which would get rid of John Bel Edwards now as opposed to January of 2024 we’re inclined to be for. You don’t have to be a Nungesser fan to see that Louisiana would be better off removing Edwards, a corrupt leftist with an aversion to the truth and an unhealthy addiction to his own political power. The churn is the end in itself and not just the means here.
And third, our estimation of Nungesser’s political skills tells us that the worst thing which could happen for his 2023 electoral prospects would be to take office in 2022. Three months of Nungesser as Louisiana’s governor could disqualify him as a statewide candidate based on our projections. Louisiana’s next governor is going to be charged with making some very dramatic and potentially politically dangerous changes to how state government does business, and Nungesser has never showed the slightest evidence that he has the sand to do those things. Unless he changes his spots and ends up governing effectively, which we’d regard as a happy surprise for which we might be willing to take another look at him, we expect the public would turn on Nungesser in no time flat.
Not to mention that the Advocate, which hasn’t run a story on the Greene case since Thursday, would almost assuredly rediscover its journalistic role as soon as they notice the new governor has an “R” next to his name. Anybody who thinks Nungesser would get the slobbering and subservient treatment that paper gives to John Bel Edwards is kidding himself.
It seems clear that Edwards conspired with the top brass at the State Police to cover up the killing of Ronald Greene in order to get the black vote in toto in the 2019 election. That would be an impeachable offense. Political concerns shouldn’t trump the righteous indignation of the public.
We’re looking forward to the work of the legislative committee investigating this scandal. We hope it isn’t simply a go-through-the-motions show.