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DA's office: Phone data holding up Wilhelm manslaughter trial

It's now been almost three years since Garrett Wilhelm was accused of causing a fatal crash on Christmas Eve 2014, leading to the death of 5-year-old Moriah Modisette.  

The jury trial for Wilhelm's manslaughter charge, which now has been postponed and reset three times, had been scheduled to start Monday before getting pushed to June 25. He would be eligible to serve up to 20 years in prison if he's found guilty of the second-degree felony charge. 

Garrett Wilhelm
Garrett Wilhelm

The trial will take place in Judge Margaret Barnes' 367th Judicial District Court. It's now among about 13 percent of criminal cases in Denton County that take longer than a year to prosecute, compared to 20 percent statewide, according to 2016 statistics from the Texas Judiciary.

District attorney officials say the case has been held up because the FBI hasn't sent forensic data from Wilhelm's iPhone, which he was using just before the crash to make a video call, according to his indictment. 

But the victim's mother, Bethany Modisette, said the family is tired of waiting. 

"It's going to be three and a half years by the time we actually go to court, and that is if we actually go to court," Bethany Modisette said. "I think it's just been strung out way too long, and it's not fair to us as family members trying to get over her death."  

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A call to Wilhelm's attorney, Ricky Perritt, was not returned by press time. 

Wilhelm, a 23-year-old Keller man, is accused of rear-ending the Modisette family's 1998 Toyota Camry on Interstate 35W in southwest Denton just south of the Ponder exit. 

It was Christmas Eve 2014. The Modisettes, a family of four from Cross Roads, were in their Camry, which had stopped in the left lane of southbound I-35W as the Texas Highway Patrol conducted a traffic stop about 1,500 feet south of their location, Denton police said at the time. 

State law requires drivers to yield to police, fire and emergency vehicles by moving over a lane or slowing down to 20 mph under the speed limit.

Police said Wilhelm was going about 65 mph and making a video call before he struck the Camry. 

Moriah's father, James Modisette,  had to be extricated from the car. He was was driving the Camry and was taken to an area hospital in serious condition. Bethany Modisette, who was riding up front on the passenger side, and the couple's 8-year-old daughter, Isabella, were taken to an area hospital in stable condition.

Moriah Modisette was airlifted in critical condition to Cook Children's Medical Center in Fort Worth, where she later died.

Police said a call was still active on Wilhelm's phone when they recovered the device at the scene of the crash. Wilhelm, who was taken to a Denton hospital, later admitted to police he was using his cellphone when he crashed into the car. His indictment in August 2015 said he was making a video call on his iPhone. 

The phone, now in possession of the FBI, is "the most critical piece" of the pending case, First Assistant District Attorney Jamie Beck said. The holdup, she said, is specifically related to security measures built into the iPhone operating system that make it difficult for law enforcement agencies to access the phones.  

"It's the same security and privacy issues as with the terrorist act in San Bernardino mass shooting," she said in an email. 

The December 2015 mass shooting left 14 people dead and 22 injured at the Inland Regional Center in San Bernardino, California. After the incident, a federal judge asked Apple to help the FBI unlock a suspect's iPhone. The judge's request would have required the company to bypass the system that disables the phone after 10 unsuccessful password attempts.

Once Apple declined the offer, the case went to court. But the FBI eventually figured out a way to hack into the phone through a third party without compromising its data, and the federal agency dropped the complaint. 

The FBI has notably declined to release how investigators accessed the device. As a result, many state and local police agencies sought their help with criminal cases involving unlocked iPhones. 

Now, the federal agency's backlog of requests has led to a delay in Wilhelm's prosecution, Beck said. She declined to say when Denton police released the phone to the FBI. 

"The law does not allow me to answer [those questions] prior to trial," she said. 

Apple iPhones consistently present a unique issue for officers trying to get forensic evidence off the devices, according to Denton police spokesman Bryan Cose. 

Cose said he could not speak on Wilhelm's pending case, but, in general, the phone's unique security measures are difficult to bypass, he said. 

"Apple phones with updated operating systems present challenges that other operating systems don't," he said. 

Typically, Cose said, police can issue a search warrant to the cellphone company and access basic call history and texts. But if investigators want to view more specific data from other phone applications — such as Snapchat, Twitter and FaceTime — they need an additional search warrants to conduct their own forensic extraction, he said.  

Information from FaceTime, Apple's primary video-calling app, is not included in basic call history and texts, police said. 

Beck declined to release the terms of any potential plea offers ahead of the trial. She previously has said prosecutors make an offer in every case. 

JULIAN GILL can be reached at 940-566-6882.