Wednesday, June 09, 2010

Witness Intimidation?

As Wikipedia explains, witness intimidation consists of threatening or pressuring witnesses not to testify. This post is about a case in which a defendant charged with child molestation claimed that law enforcement officers had intimidate the computer expert he was going to use at trial, causing the expert not to testify.

This is how the witness intimidation issue arose: Philip Speers was convicted in 2003 on four counts of child molestation and one count of sexual contact with a minor, but the Arizona Court of Appeals reversed the convictions and remanded the matter for a new trial. State v. Speers, 2010 WL 2176083 (Arizona Court of Appeals 2010). In the second trial, he was convicted of two counts of child molestation. State v. Speers, supra.

(According to an article you can find here, Speers was a second-grade teacher at a Catholic school until he was charged with various crimes. The story says that at what seems to have been a trial that preceded both of the ones I noted above, Speers was convicted of two counts of sexual exploitation for a minor; that conviction was apparently set aside, because the story says the prosecution decided not to retry Speers on these two counts. )

One of the issues he raised in appealing that was that the prosecution improperly introduced “excerpts of Speers’ prior testimony” in which he admitted that the had “(1) looked at child pornography on the Internet, (2) encrypted files on his computer, and (3) deleted certain images from his computer. State v. Speers, supra. Speers also argued that the trial court shouldn’t “have admitted evidence his computer had been used to access sexually explicit images” on a web site. State v. Speers, supra.

We, though, aren’t concerned with whether this evidence should, or should not, have been admitted at the second trial. As I said earlier, this post is about a claim of witness intimidation. This is how that issue arose:

At Speers' request, . . . the superior court appointed Jason C. as Speers' computer expert. Jason C. was with Speers on November 9, 2006, when Speers interviewed the police detectives who had examined his computers. Before the interview, Jason C. had been allowed to inspect, but not copy, an image copy of the hard drive from one of Speers' computers. During the interviews, Detective H. observed an EnCase dongle in Jason C.'s laptop computer; because Detective H. believed the only reason `someone’ would use a dongle would be to view contraband image files, which he believed Jason C. was not authorized to have, he asked Jason C. why he was using the device. Jason C. explained he had been able to remove the contraband images and was simply using the EnCase software to review the remaining data. When Detective H. and the prosecutor were not initially satisfied with Jason C.'s explanation, the discussion devolved into name calling, with Jason C. calling the detective an `idiot’ on more than one occasion and the prosecutor responding, `[i]f he's an idiot, then you're a jerk.’ After tempers cooled and the prosecutor stated he accepted Jason C.'s representation he did not have contraband images on his computer, Speers finished Detective H.'s interview.

Before Speers could begin the next interview with Detective S., that detective demanded assurances from Jason C. he did not have any contraband images. Accordingly, the prosecutor asked Jason C. whether he had retained any of the contraband images. Jason C. again explained how he was using the EnCase software, allowed Detective S. to view his computer, and then `demonstrated’ he did not have any contraband images. Satisfied, Detective S. proceeded with the interview.

At an evidentiary hearing on Speers' motion, Speers testified Jason C. told him he had believed the detectives would have arrested him if he had refused to prove he did not have any contraband images on his computer. Speers further testified Jason C. left town the next day without keeping a scheduled appointment and then failed to respond to attempts by Speers and his defense team to contact him. As a result, Speers was not able to use Jason C. as his computer expert, and had to use a different expert at trial, whom he asserted was not as well qualified as Jason C.

State v. Speers, supra. According to Spears’ appellate brief, when Detective H. saw the dongle he asked Jason C. if he was “`looking at the image [of Speers’ hard drive] right now’”. State v. Speers, Appellant’s [Second] Opening Brief, 1094051. Again according to this brief, Jason C. responded “that there were only types questions on the monitor.

Appellant’s [Second] Opening Brief, supra. According to Spears’ brief, Detective H. later said he [lean[ed] “over the table and look[ed] at” Jason C.’s computer screen because “he concluded that the only reason” Jason C. “would use Encase would be to open up contraband image files from Spears’ computer.” Appellant’s [Second] Opening Brief, supra. Unfortunately, I don’t have access to the prosecutor’s briefs in the case, so I can’t give Detective H.’s version of events.

(The Court of Appeals noted that a “dongle is a security key device necessary to run certain software programs” and that EnCase “is a brand of forensic software used by law enforcement and others to analyze computer data without disrupting or changing the media.”)

Speers argued that the “misconduct” by the prosecutor and detectives deprived him of his ability to relay on the most competent witness in presenting his defense and thereby deprived his right to due process under the 14th Amendment to the U.S. Constitution. State v. Speers, supra. The trial judge found there had not been any

misconduct by the prosecutor or police detectives directed at intimidating the expert from testifying on Speers' behalf. There is nothing in the record indicating the detectives raised the issue of possible contraband on Jason C.'s laptop for any reason other than they believed a violation of the law was possibly being committed in their presence. Although the detectives were mistaken in their belief, and as the superior court commented in its ruling, their manner was `abrupt and impolite, at best,’ the court could reasonably conclude, considering the situation in its entirety, their actions were not calculated to discourage Jason C. from being a defense witness.

State v. Speers, supra. (In his second opening brief on appeal, Speers reviews these encounters in detail and notes, at one point, that the prosecutor “ultimately determined” that Jason C. “`had done nothing wrong.’” State v. Speers, Appellant’s Opening Brief, 2009 WL 872350.)

On appeal, Speers argued that the trial court judge

made `too much of the finding that the prosecutors and detectives had not tried or intended to intimidate [Jason C.],’ citing In re Martin, 744 P.2d 374 (Cal. 1987). In Martin,Id. the California Supreme Court held a defendant must demonstrate three elements to establish a claim of witness intimidation by the State: (1) misconduct by a state actor; (2) causality between the misconduct and his ability to present the witness; and (3) materiality, that is the witness's testimony would have been material and favorable. Addressing the element of misconduct, the California Supreme Court stated a defendant `is not required to show that the governmental agent involved acted in bad faith or with improper motives. Rather, he need show only that the agent engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as to transform . . . a willing witness to one who would refuse to testify.’

State v. Speers, supra.

The Arizona Court of Appeals didn’t buy this argument:

Even under the California test, for reasons already discussed, the superior court could reasonably conclude the detectives' conduct was not `wholly unnecessary’ to the proper performance of their duties as law enforcement officers. Additionally, Speers failed to demonstrate what the California Supreme Court described as causality. At the hearing, Speers testified Jason C, who was from New Zealand, was nervous about the possibility of being arrested, but also stated he was `nervous’ for other reasons unrelated to the incident at the interviews -- his hotel room had been burglarized and his electronic gear stolen.

On this record, therefore, we cannot say the superior court abused its discretion in denying Speers' motion to dismiss for witness intimidation.

State v. Speers, supra.


Charles Jeter said...

Excellent article.

This is a primary argument for why I feel that all forensic examiners should be licensed as private investigators. When working for the defense team, they are legally protected and have the right to examine all evidence in a case.

Nobody has ever challenged the right to any legal team member's access to bloody crime scene photographs, some of which may depict naked children. This guy, in my opinion, should have been fully briefed on US law and protection, and honestly I can't understand for the life of me why, under the laws of Arizona, wire himself to tape his conversations with the cops. Arizona, like New Mexico, has more readily admissibility to audio taping as long as one party knows about it.

As for the EnCase software - not familiar about all of its scope of operation enough to comment.

Nick42 said...

I'm a bit confused by the use of the word image here, was the concern that the computer expert copied the disk image? Or that he accessed child porn pictures on the disk image?

What difference would having a PI license make? It's a requirement in my state for computer forensics, but the justification, AFAIK, is so that the examiner will know how to keep a chain of custody prior to evidence being presented.

I also don't see what a PI license would do that a CCE (computer forensics certification) wouldn't. Unless the prosecution and/or police are just more comfortable with PIs because they're a known beast.

Susan Brenner said...

I'm not exactly sure what the reference to image meant, but somehow they believed the expert had at least some child porn on his computer (that's why at least one of the detectives looked at his screen).

As to the PI issue, I'm afraid I can't help with that one.

Charles Jeter said...

@ Nick42: Just my personal opinion that you struck the nail on the head with the state requirement you mentioned.

There is an argument for an adequate defense - whether it's counsel, investigator, or expert witness. In this situation, being familiar with the rule of law and how it applied to evidence may have aided this forensic examiner. Those rules of evidence often are used to create the framework of investigator license examinations, not to mention consisting of the prerequisite experience.

Professional licensure in my opinion should be required not just to operate the software and hardware properly, but to also protect the public at large. In this instance, the person acting as a defense investigator / forensics expert witness was not clear on the protection they should have had in examining this case. My theory is that with the proper experience within the state, the expert witness could well have told the prosecution and police that they risked losing the case. Maybe that's more of a 'balance of power' issue with a licensed investigator rather that some old-school hardball routine which probably works well in most cases.

As Susan points out in a recent article and as much as it pains me to read about a dismissal because of an inability to access an independent review of the specific evidence, it's still procedure.

You might ask why it matters for porn cases, particularly child porn. Julie Amero's issue comes to mind.