Attorneys claim ‘startling’ audio recording missing in lawsuit against Bozeman police

By WHITNEY BERMES    Chronicle Staff Writer September 28, 2012

Attorneys for a man tased by Bozeman police officers are claiming that an audio segment containing “startling admissions” is missing from evidence turned over in the case.

Todd Shea, attorney for Soheil Jesse Verdi, filed a brief in U.S. District Court in Butte last month asking for the court to find the police department liable for excessive force and award damages to Verdi.    “We would very much like to find out where the missing tape is and what is on the missing tape,” Shea said in an interview Thursday.

On Aug. 12, 2007, a friend of Verdi’s called Bozeman police to request a welfare check on Verdi. Sgt. Greg Megargel and officer Marek Ziegler responded. The lawsuit states Verdi was naked, intoxicated and “stumbling around” when he answered the door. Officers claimed Verdi “suddenly attacked” Megargel and Ziegler tased him in the back. Verdi fell face down onto his deck outside of the apartment, hitting his head and causing injuries to his skull.

Verdi’s attorneys claim he has had three brain surgeries to remove excessive blood on his brain and to help remedy his “excruciating” headaches. Verdi filed a lawsuit against Bozeman police, the city of Bozeman, Megargel, Ziegler, and former police chief Mark Tymrak in 2009.

The case accuses the defendants of excessive use of force, assault and battery, intentional infliction of emotional distress, negligence and false imprisonment as well as evidence spoliation and conspiracy.  According to the brief filed last month, Bozeman police provided the plaintiffs five segments of recordings from Ziegler’s microphone that were numbered 168, 169, 171, 172 and 173. The brief also claims that when listening to the audio, there is not a continuous recording between the files numbered 169 and 171.    Attorneys claim on that tape, after medical personnel close the ambulance door and say goodbye to the officers, Megargel said to Ziegler, “Now we’re (expletive).”    “Yeah what am I gonna clear this as,” Ziegler responds, according to the brief. “Public assistance with a tasing?”    A sound engineer expert, Jeremiah Slovarp, also concluded there was a missing segment.

“I am convinced there is a missing recording file,” Slovarp wrote in the brief.    “The defendants have provided no explanation as to why there is a missing recording file on the audiotape,” Shea wrote in his brief.

The defendants in the case have yet to file a response in court. They were granted an extension that gives them until Oct. 1. When asked for a comment on Thursday, Michael Lilly, attorney for the Bozeman Police Department and the city of Bozeman, said it was “too premature” to comment.