Oct 25th was the second round in the legal situation of the State of Oklahoma vs Tony Davis and the seizure of the Oklahoma Information Exchange BBS. On that day the Preliminary Trial took place.
Generally the Prelim is a fairly cut and dry issue. It is a one-sided affair where the DA calls up the police witnesses to tell their side of the story to show that there was probable cause that a crime was committed to determine if the case should be held over for trial.
There was little doubt of the outcome, and as expected, the case was held over.
Even though the defense did not present any evidence at the Prelim, a number of 'facts' were presented by the DA which were extremely surprising.
1> The original affidavit requesting a search warrant was sworn out by Sgt Tony Gracey. In that affidavit, he stated that he was acting on information given him by a confidential informant. When asked about that informant on the stand, he then contradicted his sworn statement and said that he did not have an informant, that the information came from his Lieutenant. Then when the Lieutenant was asked on the stand about his informant, he contradicted Sgt Gracey and swore that he did not have one, but that Sgt. Gracey initiated the investigation based on his own informant.
The inconsistent statements of these two officers will create a situation where the legality of the entire search warrant will be closely scrutinized in a brief to the trial judge.
2> Sgt Gracey also stated that he was aware that there was a network located in the 'back room' at the 1501 SE 66th location prior to the execution of the search warrant, but failed to place that information about the 'network' in the affidavit requesting the search warrant or have it placed on the search warrant itself.
This will also become an issue in the brief of pre-trial motions to the trial judge to find if any information about the BBS will be admissable or suppressible.
3> In an other unexpected surprise, Sgt Gracey also told the court, that during his undercover investigation, the defendant had told him that he had not viewed any of the files on the CDs in question, and the defendant did not know of the content of the CDs. Although this has no bearing on guilt or innocence, it certainly sheds some light on the matter of intent.
4> Although there has been grounds for a civil law suit under two separate federal laws, no suit had yet been filed because prior to the Prelim there was questions on if the seizure was actually done by the OCPD acting on it's own or under direction of the County DA. Since the county DA is indemnified under law, until the exact responsibility of the seizure was identified, all civil law suits were delayed.
When Sgt Wenthal was questioned under oath on who else he had contacted for help on determining which laws were possibly violated, he stated "no one". Then when directly asked who made the decision to seize the computer equipment, he stated "I did".
The Federal Privacy Protection Act is one of the few Federal statutes that allow for direct compensation from the acting officer as well as the agency he was acting for. That 30 seconds of testimony by Sgt Wenthal stopped all road blocks in the civil suits, and it is expected that a minimum of two federal law suits against both the City of Oklahoma City, and Sgt Wenthal will be filed within the next 14 days.
Sgt Wenthal was also asked about the 'Your Busted' TV segment. Under oath, he stated that he had personably wrote the script for the show. This puts the responsibility for the 'Your Busted' information directly back to Sgt Wenthal and the OCPD, not Channel 5, who would have been protected by 1st Amendment rights.
A number of other inconsistencies and questions were also raised, but to a non attorney, these seemed to be the major ones.