Man convicted in shootout accuses police of hiding video evidence

By: - November 18, 2021 3:01 pm

Lawyers for Austin J. Mallory (inset) argue that this still from a surveillance video shows Mallory wasn’t behind the wheel of a vehicle involved in a rolling shootout that took place in Des Moines in May 2020. (Photos from Iowa District Court files and Polk County Sheriff’s Office)

A Polk County man convicted of participating in a rolling shootout is now challenging that conviction in court by arguing police and prosecutors deliberately concealed video evidence demonstrating his innocence.

In May 2020, Austin J. Mallory was arrested by Des Moines police after he and others were involved in a shooting. According to court records, Mallory and several other men were in his Chevy Trailblazer as it traveled along Clark Street in Des Moines and one of the passengers fired several shots at a pedestrian. The pedestrian returned fire, injuring one of the occupants of the vehicle. Mallory was accused of driving the vehicle.

In January of this year, Mallory pleaded guilty to state charges of aiding and abetting intimidation with a dangerous weapon.

In May, a federal grand jury indicted Mallory and others on more serious charges, alleging they participated in a criminal organization known as Only The Brothers, whose members engaged in racketeering. Mallory was charged with attempted murder in aid of racketeering, as well as using, carrying or discharging a firearm during a crime of violence. The charges stemmed from the May 2020 shooting and Mallory’s role as the driver of the vehicle. A trial in that case is scheduled for Dec. 6.

Mallory’s attorney, Nicholas Klinefeldt, recently filed a petition seeking post-conviction relief on the state charge, arguing prosecutors had failed to disclose a key piece of evidence that would have “definitively proved not only that Mallory was innocent but that the Des Moines Police Department knew he was innocent.”

According to the petition, there was a home-surveillance video camera located at a house along the 3100 block of Clark Street, about one block from the location of the shooting. Video from that camera shows the right side of the Trailblazer as it passes by just a few seconds before the first shots were fired.

One frame of the video “clearly shows Mallory is sitting in the right front passenger seat,” the petition claims. While the state did produce the video for review by Mallory’s court-appointed attorney in 2020, it was in a “series of clips from multiple angles” and “needed to be stopped at just the right moment” to show Mallory’s position in the car, the petition states.

The metadata attached to screenshot of the allegedly exculpatory frame suggests that it was created by Des Moines police on May 20, 2020, shortly after the shooting, the petition claims. So, although Mallory’s court-appointed attorney had not examined each frame of the video, police and prosecutors allegedly had done so, and had even created a screenshot of that particular frame.

During the recent federal court proceedings, the U.S. Attorney’s Office produced for the defense a copy of the screenshot that purportedly shows Mallory in the front passenger seat.

“The state did not produce this evidence in the state case,” Klinefeldt argues in his petition for reconsideration. “The only conceivable interpretation of this metadata is that the DMPD created the screenshot ten days after the incident. Accordingly, it appears clear now that the DMPD knew Mallory was not the driver of the Chevy Trailblazer by May 20, 2020. It cannot be disputed that the screenshot is exculpatory and was required to be produced under the U.S. Constitution and the Iowa Constitution … The screenshot not only makes Mallory’s innocence plain it also appears to demonstrate that the DMPD knew Mallory was not the driver within 10 days of the incident.”

Although the defense attorney’s petition states Mallory “switched into the driver’s seat after the shooting,” it offers no explanation for why he did so. At his plea hearing, Mallory testified that “I was driving the vehicle which was aiding and abetting a shooter that was shooting out the car, and which ended up striking a house and a car.”

The newly filed petition for post-conviction relief asks the court to reverse the January judgment and conviction in the state court case.

Prosecutors, judge say video does not clear Mallory

Attorneys for the state have yet to file a response to the petition. U.S. Department of Justice prosecutors, however, have stated in federal court that the surveillance footage does not exonerate Mallory, and that there is other, significant evidence of his guilt.

U.S. District Judge Rebecca Ebinger ruled Nov. 9 that “the home surveillance footage shows an individual that may be Mallory in the passenger seat of a Trailblazer near in time to the shooting,” but she added that “it does not exonerate Mallory.”

In the federal case, Mallory’s lawyers have sought sanctions against the government for its untimely disclosure of the May 2020 screenshot from the video, which wasn’t turned over to the defense until September of this year.

Ebinger ruled that the delay by prosecutors was “unacceptable” and was “inconsistent with the government’s obligations,” but she did not impose sanctions, noting that evidence was turned over well in advance of the upcoming trial, giving Mallory’s lawyers time to review it.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.