Wharton said that he wasn't aware of any investigation by Westfall or the Sheriff's Department into the incident on the video.

"It was investigated by my office in August and September 2010," the prosecutor said.

Westfall claims in his whistleblower lawsuit, filed by Parkersburg attorney Dean Furner, that he met with FBI agents on June 7 at the Cracker Barrel restaurant in Parkersburg. He says he gave them a copy of the Sawyer-Asbury video.

Westfall also says in his lawsuit that he tried to get the deputy who attacked Sawyer -- the suit does not mention Asbury by name -- punished for the incident but was told by a higher-ranking deputy not to throw the deputy "under the bus."

Westfall said he was formally notified that he was under investigation by the department in May 2010 for falsifying a report. He claims in his lawsuit that the investigation is "obvious retaliation and done out of fear that Sgt. Westfall would tell of other wrongdoings within the department."

In his lawsuit, Westfall makes other allegations of misconduct. He says the department's evidence wasn't properly kept, that two deputies "brutally battered a person of color ... who allegedly robbed a local jewelry store," and that two female inmates were improperly allowed to share one bunk in the holding facility.

Video

Sandy has been sheriff in Wood County since January 2009. That spring, he installed the video camera that captured the incident in the holding facility.

"It was part of my effort to modernize the Wood County Sheriff's Office," he said. "We put computers in the cars, obtained modems, tried to improve efficiency."

Since the Asbury-Sawyer video, he's added more memory to the video recording system. The camera in the holding facility can now record nonstop for a month.

 "We wanted to have video there," he said.

The two copies of the video -- one provided by Westfall, one by Wharton -- are almost identical.

One segment, seconds into the incident with Asbury and Sawyer, are just slightly different. Wharton's copy appears to have one frame duplicated about 20 times where Westfall's continues to play.

Furner declined to be interviewed for this story on Tuesday. In a September interview, he said he believes the video he and Sawyer have shows more of the alleged attack than the one shown by Wharton to the grand jury.

He said the video he and Sawyer have shows a punch that the tape posted by a local television station doesn't show. Wharton said that the tape provided to the media is exactly the tape shown to the grand jury.

Sandy said the video Westfall possesses is identical to the one the Sheriff's Department has.

"They should be identical because they came from the same source," he said.

Sandy said the video does jump at one point during the altercation, because of the way it was recorded. At the time, the system didn't record continuously, he said.

The video was recorded in the first place to make a record of what goes on in the holding area, he said.

"We did this at that time for the benefit of the person being arrested," Sandy said.

Reach Gary Harki at gha...@wvgazette.com or 304-348-5163.

CHARLESTON, W.Va. -- The FBI is investigating the Wood County Sheriff's Department over an October 2009 video that shows a deputy hitting and choking a suspect in the department's holding facility.

The suspect in the video, Brian Timothy Sawyer, 30, filed a lawsuit against the department in U.S. District Court on Tuesday.

Joe Ciccarelli, FBI supervisory senior resident agent in Charleston, confirmed that the FBI has started a civil rights investigation.

In a separate lawsuit, Wood County Sheriff's Sgt. David Westfall claims the department is unfairly firing him after he gave the FBI a copy of the video. Westfall also accuses other department officers of wrongdoing in the "whistleblower" lawsuit.

The Charleston Gazette obtained copies of the video from Westfall and Wood County Prosecutor Jason Wharton.

The videos show Sawyer sitting in front of then-Deputy Jim Asbury and gesturing at him. There is no sound. Sawyer holds his hand in front of Asbury, who appears to lunge at Sawyer, choke him and punch him.

Other deputies then surround the two men. Sawyer appears to stand on the bench as Asbury attacks him. Asbury then pulls him to the ground.

The incident was presented to a Wood County grand jury, which did not indict Asbury.

Asbury resigned from the department in June, Wood County Sheriff Jeff Sandy said.

The sheriff said his department has nothing to hide. "We welcome any federal, state or grand jury investigation on any and all matters," he said. "We will cooperate with any of those entities."

Allegations

On Oct. 29, 2009, Sawyer allegedly hit his girlfriend on the butt with a broom handle, according to a criminal complaint filed in Wood County Magistrate Court.

Asbury wrote in the complaint that after he placed Sawyer in handcuffs, Sawyer started kicking his legs, broke the antenna on Asbury's portable radio and had to be dragged to a police car. He was charged with domestic assault, public intoxication, destruction of property, assault on a police officer and three counts of obstruction.

In the complaint, Asbury also says that he and several other deputies had to forcibly restrain Sawyer when he became combative again at the holding facility.

Sawyer was also charged with disorderly conduct for cursing at Asbury and calling him and another officer "butt buddies" when he was taken to the hospital after the incident in the holding facility.

Sawyer's attorney, John Bryan, said the charges against Sawyer have since been resolved, though he doesn't know their exact disposition.

Sawyer is in prison on an unrelated felony charge, after he forged his brother's signature on a fingerprint card, Bryan said.

The lawyer said the FBI contacted him in the last week and asked to speak to Sawyer.

Wharton, the Wood County prosecutor, said last month the sheriff's department gave him a copy of the video from the incident on Aug. 11 -- nine months after it happened. He said he showed the tape to a grand jury, which did not indict Asbury.

Bryan said that Westfall, who investigated the incident for the sheriff's department, wasn't called at the grand jury.

"He was kept in the dark about it," Bryan said.

Wharton said that he wasn't aware of any investigation by Westfall or the Sheriff's Department into the incident on the video.

"It was investigated by my office in August and September 2010," the prosecutor said.

Westfall claims in his whistleblower lawsuit, filed by Parkersburg attorney Dean Furner, that he met with FBI agents on June 7 at the Cracker Barrel restaurant in Parkersburg. He says he gave them a copy of the Sawyer-Asbury video.

Westfall also says in his lawsuit that he tried to get the deputy who attacked Sawyer -- the suit does not mention Asbury by name -- punished for the incident but was told by a higher-ranking deputy not to throw the deputy "under the bus."

Westfall said he was formally notified that he was under investigation by the department in May 2010 for falsifying a report. He claims in his lawsuit that the investigation is "obvious retaliation and done out of fear that Sgt. Westfall would tell of other wrongdoings within the department."

In his lawsuit, Westfall makes other allegations of misconduct. He says the department's evidence wasn't properly kept, that two deputies "brutally battered a person of color ... who allegedly robbed a local jewelry store," and that two female inmates were improperly allowed to share one bunk in the holding facility.

Video

Sandy has been sheriff in Wood County since January 2009. That spring, he installed the video camera that captured the incident in the holding facility.

"It was part of my effort to modernize the Wood County Sheriff's Office," he said. "We put computers in the cars, obtained modems, tried to improve efficiency."

Since the Asbury-Sawyer video, he's added more memory to the video recording system. The camera in the holding facility can now record nonstop for a month.

 "We wanted to have video there," he said.

The two copies of the video -- one provided by Westfall, one by Wharton -- are almost identical.

One segment, seconds into the incident with Asbury and Sawyer, are just slightly different. Wharton's copy appears to have one frame duplicated about 20 times where Westfall's continues to play.

Furner declined to be interviewed for this story on Tuesday. In a September interview, he said he believes the video he and Sawyer have shows more of the alleged attack than the one shown by Wharton to the grand jury.

He said the video he and Sawyer have shows a punch that the tape posted by a local television station doesn't show. Wharton said that the tape provided to the media is exactly the tape shown to the grand jury.

Sandy said the video Westfall possesses is identical to the one the Sheriff's Department has.

"They should be identical because they came from the same source," he said.

Sandy said the video does jump at one point during the altercation, because of the way it was recorded. At the time, the system didn't record continuously, he said.

The video was recorded in the first place to make a record of what goes on in the holding area, he said.

"We did this at that time for the benefit of the person being arrested," Sandy said.

Reach Gary Harki at gha...@wvgazette.com or 304-348-5163.