Monday, September 30, 2013

Strangulation, the Laptop and the Expert Witnesses

After he was convicted of first-degree murder in violation of North Carolina General Statutes § 14-17 and “sentenced to life in prison without the possibility of parole,” Bradley Graham Cooper appealed.  State v. Cooper, 747 S.E.2d 398 (North Carolina Court of Appeals 2013).  He was convicted of killing his wife: Nancy Lynn Rentz Cooper.  State v. Cooper, supra.

According to the opinion, Graham and Nancy were married in October of 2000 and moved from Canada to Cary, North Carolina in January 2001. State v. Cooper, supra. They had two daughters but by 2008, the marriage “was in difficulty” and by April of that year Nancy “had hired a family law attorney and planned to move out”, presumably with the daughters. State v. Cooper, supra. Graham and Nancy were still living in the home in July 2008, but “were leading mostly separate lives and sleeping in separate bedrooms.” State v. Cooper, supra.

On July 11, 2008, they “attended a party at a neighbor's house”; witnesses later said they argued there.  State v. Cooper, supra. Graham left “around 8:00 p.m., to put the daughters to bed” and Nancy left “a little after midnight”. State v. Cooper, supra. She disappeared some time during the morning of July 12, 2008. State v. Cooper, supra.

Graham later gave police this account of what happened that morning:

[O]ne of the daughters awoke between 4:00 a.m. and 4:30 a.m., and had difficulty getting back to sleep. [She] wanted milk, but there was none at the house. [Graham] went to a Harris–Teeter at about 6:30 a.m. to buy milk, and returned home. [Nancy] was doing laundry, but had run out of detergent. [Graham] returned to the Harris–Teeter to buy detergent and, while on his way there, received a call from [Nancy] asking him to get some `green juice.’

Receipts and surveillance video from the Harris–Teeter confirm that [he] bought milk at 6:25 a.m., left . . . , returned and bought detergent and juice at 6:44 a.m. After [Graham] bought the detergent and juice, he returned home. At about 7:00 a.m., [Nancy] called to [Graham], who was upstairs, and told him she was going running. [He] remained at home with the daughters and, when [she] did not return from her run when expected, [Graham] called a friend and cancelled a tennis date he had planned. [He later said] he did laundry and cleaned around the house and, in the early afternoon, drove around with his daughters, looking for [Nancy].

State v. Cooper, supra.  (For more on the case, check out this news story.)

Police questioned Graham and investigated for the next three days, when “a woman’s body”, later identified as Nancy, “was found on Fielding Drive.”  State v. Cooper, supra.  The next day, July 15, the body was identified as Nancy. State v. Cooper, supra.  The cause of death was strangulation but the time of death “could not be determined with specificity.” State v. Cooper, supra. Investigators were able to determine that Nancy died  “some time in the twelve-hour period between shortly after midnight on 12 July . . . and approximately noon that same day.”  State v. Cooper, supra. 

“Around 5:20 p.m.” on July 15, Graham moved out to “preserve the house as a possible crime scene.” State v. Cooper, supra. He left a laptop, which “was connected to the internet for approximately twenty-seven hours on 15 and 16 July”.  State v. Cooper, supra. After he left, police, who had a search warrant, searched the house and Graham’s car.  State v. Cooper, supra.  They “also seized the laptop, along with another computer, and various other computer-related components.” State v. Cooper, supra. 

He was charged with murdering Nancy and went to trial on February 28, 2011.  State v. Cooper, supra.  The “sole direct evidence linking” Graham “to the murder was obtained from the laptop that had been left on and connected to the internet after” he moved out.  State v. Cooper, supra. 

At trial, the prosecution presented testimony from FBI Special Agent Greg Johnson and Durham Police Detective Chris Chappell, both of whom testified as forensic computer analysts. State v. Cooper, supra.  Both were forensic examiners

of the Computer Analysis Response Team (CART). CART extracts `evidence off of seized digital media’ such as computer hard drives. The first part of the forensic process involves taking inventory of the components. CART then checks for any portable media in or attached to the computer, opens up the case of the CPU and removes the hard drive(s). . . . 

According to Johnson's testimony, the integrity of the hard drive is protected by making a `forensic image’ of the drive, which is `a. . . . bit-per-bit copy, which gets every piece of . . . information off of the hard drive and puts it into what we call forensic image.’ Examination then occurs of a different hard drive containing the forensic image, not the original hard drive. The forensic image requires some type of specialized software to read and `interpret those files that it creates.’ . . .

The CART team used software called Forensic Tool Kit, or FTK, to process that hard drive. FTK and similar programs index files retrieved from the hard drive, allowing for specific searches for particular data to be performed. An FTK report was then created based upon the particular search parameters utilized. One of the sub-sets of files collected in the FTK report for [Graham’s] laptop was temporary internet history files for dates close in time to [Nancy’s] murder.

Johnson and Chappell testified that the temporary internet files recovered from the laptop indicated someone conducted a Google Map search on [it] at approximately 1:15 p.m. on 11 July, the day before [Nancy] was murdered. They concluded this search was done by someone using the laptop while it was at the Cisco office where [Graham] worked. [They] testified that the Google Map search was initiated by someone who entered the zip code associated with [Graham’s] house, and then moved the map and zoomed in on the exact spot on Fielding Drive where [Nancy’s] body was found.

State v. Cooper, supra. 

Graham called Jay Ward to testify about “the incriminating Google Map files recovered from the laptop.” State v. Cooper, supra.  Ward had ”more than fifteen years in the computer field, specializing in computer network security.” State v. Cooper, supra. The prosecution objected, "challenging [Ward's] credentials to  testify as an expert concerning the relevant Google Map files.” State v. Cooper, supra. 

In objecting to Ward’s testifying as an expert, the prosecution focused on Ward’s

lack of training and experience as a forensic computer analyst. The trial court agreed with the State and, on 19 April 2011, ruled that Ward could not testify specifically about the Google Map files. Ward was allowed to give general testimony concerning the ease with which files could be altered or planted on a computer that, like [Graham’s], had been left connected to the internet. 

[Graham] argued, since the trial court did not find the methods by which Ward obtained his data to be reliable, that Ward be allowed to testify based upon the data produced by the State's forensic analysts. The trial court denied [his] request.

Ward testified on voir dire that had he been allowed to, he would have offered his opinion that the incriminating Google Map files had been planted on [Graham’s] computer, and he would have further testified to the specific aspects of the files that had led him to this conclusion.

State v. Cooper, supra. 

After the judge made that ruling, Graham “immediately” began looking for a

forensic computer analyst he could call to testify concerning the Google Map files. [He] located a forensic computer analyst, Giovanni Masucci (Masucci), on 20 April 2011. As the court session began on 21 April 2011, [Graham] gave notice of Masucci as [his] replacement expert. Masucci had examined the data produced by the State's forensic computer analysts, and produced a report. Masucci's report indicated that the data results obtained by Ward matched the results obtained by CART.

Masucci's conclusion was the same as Ward's: that the Google Map files had `been placed on the hard drive [and] could not have been the result of normal internet activity.’ [His] curriculum vitae was sent to the State on 22 April 2011, and Masucci's report was sent the next day. Court was not in session on these days.

State v. Cooper, supra. 

When court resumed on April 25, the prosecution objected to letting Masucci testify because his name “not on the list of experts [Graham] provided to the State before trial, nor had the State been provided with Masucci's report prior to trial, and these failures constituted discovery rules violations.”  State v. Cooper, supra.  The judge agreed and did not let Masucci testify.  State v. Cooper, supra.  Graham was “therefore prohibited from calling any witness to testify that the Google map files relied upon by the State to connect [him] to the site where [Nancy’s] body was found were corrupt or had been tampered with in any manner.”  State v. Cooper, supra. 

His first argument on appeal was that the judge’s ruling that Ward was not qualified to give expert testimony about tampering on his computer “`was an abuse of discretion and deprived [him] . . . of his state and federal constitutional due process right to present a defense.”  State v. Cooper, supra.  The Court of Appeals agreed. State v. Cooper, supra. 

It noted, first, that the Supreme Court has said “[a]ccuracy in criminal proceedings is a particularly compelling public policy concern” and has said that “a defendant on trial has a greater interest in presenting expert testimony in his favor than the State has in preventing such testimony.” State v. Cooper, supra (citing Ake v. Oklahoma, 470 U.S. 68 (1985)).  It then explained that the “admissibility of expert testimony is controlled by Rule 702 of the North Carolina Rules of Evidence”. State v. Cooper, supra. 

Rule 702 says that if “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise” if the testimony satisfies three factors. State v. Cooper, supra.  The factors are that (i) the testimony is “based upon sufficient facts or data”; (ii) it “is the product of reliable principles and methods” and (iii) the witness applied "the principles and methods reliably to the facts of the case."

State v. Cooper, supra. 

In testifying on voir dire, Ward described his experience with computers and networks, which began in 1997 and continued until the trial.  State v. Cooper, supra. He said he used “software programs, such as EnCase and FTK” but there were limitations in using the software alone.” State v. Cooper, supra.  Ward’s testimony is too long to summarize here.  State v. Cooper, supra. 

The Court of Appeals noted that, at trial, the prosecution “did not seriously challenge Ward's ability to understand and interpret the actual data retrieved” and that his voir dire testimony indicated he “had been examining precisely the kind of files at issue -- temporary internet files -- on a regular basis throughout his long career as a digital data security professional.” State v. Cooper, supra.  

 It also noted that “[a]ccording to his voir dire testimony, Ward was engaged in a specific profession in the type of analysis in which the defense wanted him to testify, and was experienced with the identical subject matter -- temporary internet files -- at issue.” State v. Cooper, supra (emphasis in the original). The court therefore found Ward was “certainly `in a better position to have an opinion on the subject than [wa]s the trier of fact.’” State v. Cooper, supra (quoting State v. Morgan, 604 S.E.2d 886 (North Carolina Supreme Court 2004)).  

The Court of Appeals noted that the trial judge believed that, because the

digital data was recovered using forensic tools and methods, only an expert forensic computer analyst was qualified to interpret and form opinions based on the data recovered. The evidence on voir dire does not support this understanding of the nature of Ward's expertise. Assuming arguendo that the data Ward recovered from the forensic copy of the hard drive was suspect, neither the State nor [Graham] argued that the data recovered by the State's experts was flawed -- just that there was disagreement concerning the interpretation of that data.

Nothing in evidence supports a finding that Ward was not qualified to testify using the data recovered by the State. Ward, based upon expertise `acquired through practical experience,’ was certainly `better qualified than the jury to form an opinion as to the subject matter to which his testimony applie[d].’ Miller v. Forsyth Memorial Hospital, 618 S.E.2d 838 (North Carolina Court of Appeals 2005)).

State v. Cooper, supra. 

The court also noted that the

Google Map files recovered from [Graham’s] laptop were perhaps the most important pieces of evidence admitted in this trial. We hold that the trial court abused its discretion in excluding Ward from testifying, relying on the State's own evidence, to his opinion that the Google Map files recovered from [Graham’s] laptop had been tampered with.

State v. Cooper, supra. 

The court also addressed the trial judge’s barring Masucci from testifying. State v. Cooper, supra.  It assumed, arguendo, that Graham “technically violated North Carolina Statutes§ 15A-905”, which requires defendants to give the prosecution notice of any experts they intend to call as witnesses as trial.  State v. Cooper, supra.  The Court of Appeals also found, however, that the trial judge’s excluding Masucci’s testimony was “disproportionate to the purposes this state's discovery rules were intended to serve.”  State v. Cooper, supra. 

The court noted that the Supreme Court has held that if a trial judge determines that a defendant “willfully” did not comply with the obligation to identify expert witnesses in advance in order to “obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence,” it would be constitutionally permissible for the judge to bar the defendant from offering that witness’ testimony at trial. State v. Cooper, supra (citing Taylor v. Illinois, 484 U.S. 400 (1988)).

It then noted that here, Graham, in

failing to provide earlier notice to the State, was clearly not seeking any tactical advantage. The trial court made no finding of willful misconduct, and the record divulges none. [He] only sought out another expert, Masucci, after the State was successful in moving to limit Ward's testimony in the middle of the trial. At that point, [Graham] had no way to present vital expert testimony and comply with North Carolina Statutes § 15A–905(c)(2).

State v. Cooper, supra. 

The court therefore held that “excluding Masucci's testimony as a sanction for a discovery rules violation violated [Graham’s] rights under the constitutions of the United States and North Carolina.” State v. Cooper, supra. It also found “the error was of such magnitude, in light of the earlier exclusion of Ward's relevant testimony, that it requires . . . a new trial.” State v. Cooper, supra. 

For all these reasons, the court granted Graham a new trial.  State v. Cooper, supra.  For more on that, check out the news story you can find here.

Friday, September 27, 2013

The Expert, The Juror and Facebook

After a jury convicted William Darelle Smith of first-degree murder in violation of Tennessee Code § 39-13-102, he appealed.  State v. Smith, 2013 WL 4804845 (Tennessee Supreme Court 2013). On appeal, Smith argued that the trial judge should have held a hearing into “Facebook messages [a juror exchanged] with one of the State's witnesses during the trial.”  State v. Smith, supra.

As to how Smith came to be charged, the opinion notes that on June 4, 2007,

Zurisaday Villanueva's body was discovered on the side of the road near the Ashland City exit on Briley Parkway in Nashville. She had been shot twice. Investigators found two .9 millimeter shell casings near [her] body, and the area around the body reflected that there had been a struggle. The investigation led the authorities to . . . Smith, with whom Villanueva had been living.

State v. Smith, supra.

Smith, as noted above, went to trial on the charge.  State v. Smith, supra. On March 8, 2010, before jury selection began, the trial judge told the prospective jurors that

[o]ver the country. . .  there's been some difficulty and it's going to force a change in the law with regard to jurors taking their cell phone and texting and trying to find out about a trial or things like that. That would be highly improper on a juror's part to do anything like that. . . . [Y]ou're required to make your decision solely upon the law and the evidence as you hear it in the courtroom.

State v. Smith, supra.

The opinion also explains that during the process of selecting the jurors for the trial, the

both the trial court and the attorneys questioned the prospective jurors about whether they knew [Smith], the prosecutors, the defense attorneys, or several of the investigating officers. Three of the prospective jurors who were eventually seated on the jury were employed at the Vanderbilt University Medical Center

Although the attorneys were aware that Dr. Adele Lewis, a medical examiner who had trained at Vanderbilt, would be testifying for the State, they asked none of the jurors, not even the three jurors affiliated with Vanderbilt, whether they knew Lewis.

State v. Smith, supra. The opinion notes that the three jurors “included a physician, a registered nurse, and Glenn Scott Mitchell, a grants manager.”  State v. Smith, supra. 

It also explains that, after the jury was chosen, the trial judge instructed them that

`[d]uring the course of the trial, you should not talk with any witnesses, defendants, or attorneys involved in this case. Please do not talk with them about any subject whatsoever. You may see them in the hallway, on an elevator, or at some other location. If you do, perhaps the best standing rule is not to say anything.’

State v. Smith, supra.

That brings us to the issue involved in this appeal.  The opinion explains that during the trial,

 Smith's cousin testified that [he] told her Villanueva pulled a pistol on him during an argument and the pistol `went off’ during the struggle. She also testified that Smith told her the pistol fired a second time when he was trying to move Villanueva's body. Smith's girlfriend testified [he] told her he had killed Villanueva but . . . was not sure what had happened. 

In addition to this testimony, the State introduced evidence that the authorities had found Villanueva's blood in an automobile driven by Smith and owned by Smith's father.

Dr. Lewis, the assistant medical examiner who performed Villanueva's autopsy, testified that Villanueva had been shot twice, once in the chest and once in the back of the head. While Lewis could not ascertain which shot had been fired first, she stated that. Villanueva could have survived the chest wound with proper medical attention but that she would not have survived the head wound. 

She also testified that the shots had been fired from an `indeterminate range’ and that she found no evidence that the muzzle of the pistol had been held against Villanueva's skin. Lewis concluded that Villanueva's death was a homicide.

State v. Smith, supra. 

The prosecutor “called one final witness following Lewis and then rested.”  State v. Smith, supra.  The defense attorney moved for a judgment of acquittal and rested when the judge denied the motion.  State v. Smith, supra.  Both made closing arguments and the judge adjourned for the day. State v. Smith, supra.  (For an overview of a criminal jury trial, check out this Wikipedia entry.)

When the trial resumed on March 10, the judge instructed the jurors on the law and then instructed them to begin deliberating.  State v. Smith, supra.  About an hour later, the trial judge “received an email from Lewis regarding communications Juror Mitchell had initiated with her on Facebook following her testimony on March 9, 2010.”  The subject of the email was “`Facebook,’” and it said:  

Judge Norman,

I can't send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

Scott Mitchell: `A-dele!! I thought you did a great job today on the witness stand . . . I was in the jury . . . not sure if you recognized me or not!! You really explained things so great!!’

Adele Maurer Lewis: `I was thinking that was you. There is a risk of a mistrial if that gets out.’

Scott Mitchell: `I know . . . I didn't say anything about you ... there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.’

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

Adele Lewis, MD

State v. Smith, supra.  (Her reference to “General Miller” suggests that an Assistant Tennessee Attorney General was prosecuting the case.)

At some point, and in some way, the trial judge told the prosecution and defense attorneys what had happened.  State v. Smith, supra.  After the jury returned with its verdict and the verdict was announced in court, the judge excused the jurors and then had this exchange with Smith’s defense attorney:

MR. ENGLE: Your honor, I wondered if, before the jury departs the courthouse, if given the events of this morning it would be appropriate if [t]he Court inquired of this particular juror regarding any information that he might have acquired other than what has been made available to [t]he Court?

THE COURT: No, I'm satisfied with the communication that I have gotten from Dr. Lewis with regard to the matter. [She] filled us in fully on the matter and [she] told me that is exactly what was said and I am satisfied with it.

State v. Smith, supra.  The court notes that because the trial judge “did not inquire further into the nature of Mitchell's postings on Lewis's Facebook page,” the trial record did not “reflect whether his communications were public postings which others could see and comment on or whether they were private messages from one Facebook user to another.”   State v. Smith, supra. 

The judge “then sentenced Smith to life in prison.”  State v. Smith, supra.  He moved for a new trial, claiming “he was denied a fair trial because the court forbade him from questioning Mitchell about his exchange with Lewis and any other possible violations of the jury's instructions.” State v. Smith, supra.  The judge denied the motion “without comment”, and Smith appealed to the Tennessee Court of Appeals.  State v. Smith, supra.  That court upheld the judge’s decision not to question Mitchell, after which Smith appealed to the state Supreme Court. State v. Smith, supra. 

The Supreme Court began its analysis of Smith’s argument by noting that the “right to a trial by jury in both civil and criminal cases is a foundational right protected by both the federal and state constitutions.”  State v. Smith, supra.  It explained that the right to a

jury trial envisions that all contested factual issues will be decided by jurors who are unbiased and impartial. . . . In criminal cases, `[t]he jury is the property of neither a defendant nor the State.’ State v. Smith, 857 S.W.2d 1 (Tennessee Supreme Court 1993). Thus, the defendant and the State are entitled to a fair trial by an unbiased and impartial jury. . . . 

An unbiased and impartial jury is one that begins the trial with an impartial frame of mind, that is influenced only by the competent evidence admitted during the trial, and that bases its verdict on that evidence. Durham v. State, 182 Tenn. 577 (Tennessee Supreme Court 1945).

Trial courts must ensure the integrity of the jury system by holding jurors accountable to the highest standards of conduct. State v. Jackson, 173 S.W.3d 401 (Tennessee Supreme Court 2005). Accordingly, courts must discharge any juror who, for any reason, becomes disqualified to perform his or her duty. . . . Discharging this obligation not only protects the fairness of the trial itself, but also promotes and preserves the public's confidence in the fairness of the system. . . .

State v. Smith, supra. 

It also noted that “[l]ike judges, jurors must be -- and must be perceived to be --disinterested and impartial.” State v. Smith, supra.  The court then explained that

[w]hen a trial court learns that an extra-judicial communication between a juror and a third-party has occurred, the court must take steps to assure that the juror has not been exposed to extraneous information or has not been improperly influenced. In most circumstances, the appropriate first step is to conduct a hearing in open court in the presence of the defendant to place the facts in the record and to determine on the record whether cause exists to find that the juror should be disqualified. . . .

Because of the potentially prejudicial effect of a juror's receipt of extraneous information, the State bears the burden in criminal cases either to explain the conduct of the juror or the third party or to demonstrate how the conduct was harmless. Error is harmless when `it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ State v. Brown, 311 S.W.3d 422 (Tennessee Supreme Court 2010) (quoting Neder v. United States, 527 U.S. 1 (1999)).

State v. Smith, supra.    

The Supreme Court then took up the issue in this case, explaining that the first step

of the analysis is to determine whether the trial court received reliable and admissible evidence that an extra-judicial communication between a juror and a third party occurred. Here, Lewis's email to the trial court provides proof that such a communication between her and Mitchell did . . . occur. 

In addition, because the information in the email related to potentially prejudicial external influences, rather than the jury's deliberations or the juror's thought processes, the contents of the email were admissible under Tennessee Rule of Evidence 606(b). . . .

This evidence was sufficient to trigger the rebuttable presumption of prejudice to Mr. Smith, thereby requiring the State to explain the conduct or to demonstrate that it was harmless.

State v. Smith, supra. 

The Supreme Court then found that when the

trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State's witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury's verdict.

The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between Lewis and Mitchell. This hearing may very well have necessitated calling Mitchell and Lewis to testify under oath about their relationship and the effect of the communication on Mitchell's ability to serve as a juror. 

Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether Mitchell shared any extraneous information with other jurors.

State v. Smith, supra. 

The court also explained that because the trial judge did not

hold a hearing or to make findings of fact and conclusions of law, this record is inadequate for us to determine whether the extra-judicial communication between Lewis and Mitchell was not prejudicial. We do not know, for example, the full nature of their relationship and whether their relationship would have required Mitchell's disqualification

Because neither Mitchell nor any of his fellow jurors were questioned, the record contains no information regarding whether Mitchell passed along extraneous prejudicial information to the other members of the jury.

State v. Smith, supra. 

Since the “proper remedy” for a trial judge’s failure to hold such a hearing and make findings of fact and conclusions of law is “to remand the case for such a hearing”, the Supreme Court held that the

portion of the trial court's order that denies Smith's motion for a new trial based on Mitchell's improper extra-judicial communication with Lewis is vacated. The case is remanded to the trial court to conduct a hearing to determine whether Mitchell's Facebook communication with Lewis disqualified him from continuing to serve on Smith's jury.

Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires Mitchell's disqualification or whether Mitchell's misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to Mitchell's improper extra-judicial communication with Lewis, then the trial court shall grant Smith a new trial.

State v. Smith, supra.  

If you would like to read more about the case, and see photos of Smith and Villanueva, check out the news story you can find here.

Wednesday, September 25, 2013

The School, the Parents and the Emails

This post examines an opinion the Michigan Court of Appeals recently issued in a civil case:  Latture v. Emmerling, 2013 WL 5225243 (2013).  The case began when Fay Latture, Superintendent of the Clio, Michigan school district, sued three people:  Rebecca Freifeld and Julie Keyes, who were “parents with children who attended Clio public schools” and Diane Reed, a “school teacher” (presumably at Clio). Latture v. Emmerling, supra.  

Freifeld was also City Commissioner for the city of Clio. Latture v. Emmerling, supra. “At no time were” Freifeld and Keys employees of the Clio school district. Latture v. Emmerling, supra.  Over their years, they

appeared at Board of Education (Board) meetings in their capacity as parents. They voiced several points of dissatisfaction with [Latture’s] performance as Superintendent and made several requests for materials through the Freedom of Information Act (FOIA). In the spring of 2005, [Freifeld and Keys], with the help of . . . Diane Reed, found a way to infiltrate [Latture’s] e-mails.

[Latture] began to notice her e-mails were being deleted when people told her they had e-mailed her and questioned why she had not responded. [She] would go back into her e-mails and could not find what they sent. [Latture] could not account for how people at Board meetings knew whether she was taking her vacation days or not and where she was going; whether she used personal days and did she report them; and whether she was attending certain events.

Parents came to Board meetings with e-mails, sometimes crying, sometimes upset and angry concerning disclosures from the e-mails. Others contacted [Latture] with concerns that confidential information they e-mailed her may have been released. In addition to school related communications [her] e-mails contained medical information, communications with attorneys and private discussions with her sister. . . . [Latture] experienced anxiety, nausea, headaches, stomach ache, and could not sleep. Coworkers, her husband, and sister observed her altered demeanor, anxiety, and physical distress.

Latture v. Emmerling, supra.  

According to the opinion, Latture then reported her suspicions that her email was being

accessed to the Clio School District Director of Technology Howard Buetow, who investigated and reported his findings to Clio Chief of Police James McLellan. Buetow ultimately traced the intrusions to the internet provider (IP) addresses of Freifeld and Keyes. Buetow determined that [Latture’s] e-mails were read 9,081 times.

McLellan conducted an investigation where Reed, Freifeld, and Keyes provided Proffer Statements in which they admitted to accessing [Latture’s] e-mails without authorization. Freifeld additionally admitted to having taken [Latture’s]s trash on three occasions. Reed admitted that in April 2005 she sent [Latture] an e-mail with Spyware software on it that allowed her to record [Latture’] keystrokes and obtain [her] school e-mail password.

Reed admitted to reading e-mails that involved student matters, Board member communications, and some information that would have been embarrassing and caused [Latture] distress if revealed publicly. Reed told McLellan she shared the password with Freifeld and Keyes on May 24, 2005. Keyes admitted the three of them did meet in her basement on that day and accessed [Latture’s] e-mails for over two hours, printing them out and storing them in a binder.

Keyes further admitted that she forwarded the e-mails to other people. Freifeld admitted the same involvement as Reed and Keyes, and added that she anonymously delivered [Latture’s] e-mails to people by leaving them at their residences.

In October 2005, [Latture] took her home computer to Paul Lee, owner of Clio Computers in Clio, Michigan, because it was running slow and she thought it had a virus. Eighty to ninety percent of Lee's daily work dealt with spyware, adware and viruses. Lee told [Latture] her home computer had Spyware on it.

In December 2005, McLellan told [Latture] that her school e-mails had been stolen and that someone had taken her garbage. Around the same time, Buetow told [her] that [Freifeld, Keys] and Reed were the ones that had accessed her school e-mails.

Latture v. Emmerling, supra.  

In January of 2006, “Reed, Keyes, and Freifeld pled guilty to the misdemeanor charge of conspiracy to commit fraudulent access to computers.”  Latture v. Emmerling, supra.  According to the news story you can find here, the three spent some time in jail.  Latture then sued them, alleging three causes of action:  intrusion upon seclusion, intentional infliction of emotional distress and civil conspiracy.  Latture v. Emmerling, supra.  

The opinion says that on “February 28, 2011,” a jury found for Latture on all three claims, “against each defendant” and awarded “damages against Freifeld in the amount of $250,000 and against Keyes in the amount of $125,000.” Latture v. Emmerling, supra.  It does not say if anything was awarded against Reed. Latture v. Emmerling, supra.    

On appeal, the defendants claimed the trial judge should have granted their motions for a directed verdict because Latture “failed to prove all the elements of her intrusion upon seclusion and intentional infliction of emotional distress claims.”   Latture v. Emmerling, supra.  As Wikipedia explains, in a jury trial a directed verdict is

an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case.

The Court of Appeals began its analysis of the defendants’ argument on the intrusion upon seclusion claim by noting that this tort claim has “three elements: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private;” and (3) obtaining information “about that subject matter through some method objectionable to a reasonable man.”  Latture v. Emmerling, supra.    

It began with the issue of whether Latture’s emails were “private,” noting that courts use dictionaries to discern the meaning of particular terms.  Latture v. Emmerling, supra.

Our Court has looked to the Merriam–Webster's Dictionary to define the term private. . . . That definition describes private as, `intended for or restricted to the use of a particular person, group, or class.’ Merriam–Webster's Dictionary (1995). Black's Dictionary further defines `private’ as “confidential; secret.” (17th ed.) Thus, in order for plaintiff's e-mails to have been considered private they must have been `intended for or restricted to the use of a particular person, group, or class.’

[Latture’s] school e-mail was provided by the Clio school district and maintained by the school's computer server. Only individuals with a password, provided by the school district, could use the school e-mail system. There was a specific and limited method by which a limited class of persons could access the e-mails of persons other than themselves and the contents of such observation were confidential. 

The characteristics of the school e-mail system were such that this Court can conclude that the system was restricted and therefore, private between users. Thus, [her] e-mails were private.

Latture v. Emmerling, supra.

The court then took up the issue of whether Latture’s emails “contained private information.” Latture v. Emmerling, supra.  It noted that, according to Latture, she communicated private matters "with
attorneys, parents, and with medical professionals.” Latture v. Emmerling, supra.  The Court of Appeals explained that Michigan courts have held that communications between a lawyer and client and communications involving someone’s medical treatment or condition are private. Latture v. Emmerling, supra.  

 It also noted that Latture “intended the matters in the e-mails to be private.” Latture v. Emmerling, supra.  Given all this, the court found  “sufficient evidence” supported a finding that her “e-mails contained private information. Latture v. Emmerling, supra. 

The court then had to “determine whether defendants read any of the private subject matter” in Latture’s emails. Latture v. Emmerling, supra. Reed admitted she read some emails that

contained private matters and that she shared and forwarded e-mails to Freifeld. Freifeld admitted that she then shared e-mails with Keyes. Buetow determined that e-mails were read over 9,000 times in a matter of just months. Defendants' unfettered access to the entirety of plaintiff's e-mails, subsequently granted them access to private and non-private matters. The trial court appropriately found that there was evidence that defendants read private information from plaintiff's e-mails.

Latture v. Emmerling, supra.

The defendants also claimed they had a right to access and disseminate Latture’s private e-mails.

First, they contend that [Latture] wrongly asserted the privacy rights of her children. Second, they allege that [her] privacy right was voided by the school district's technology policy. . . .

The trial judge found the intrusion was reading any e-mail and accessing garbage. Even if [Latture’s] children's medical information were not considered, there was still evidence of other private matters including communicating with attorneys regarding the lawsuits she was involved in and the private conversations with her sister.

Likewise, the Clio school district's technology policy did not void [Latture’s] claim that she had a right to privacy. The Clio school district e-mail system was a private system that was restricted to use by password holders only. 

Defendants were not employees of the school district, were not password holders and did not have permission to access the school e-mail system. [Latture[ maintained a privacy right against third parties, like the defendants, who would not, under any technology policy, be afforded the opportunity to access her e-mails.

Latture v. Emmerling, supra.

Finally, as to the third element, the court found Latture proved that the information was obtained “`through some method objectionable to a reasonable man” because it was “undisputed that defendants illegally accessed the Clio school’s computer system” and “[c]riminal activity is an objectionable method of obtaining information.”  Latture v. Emmerling, supra. The Court of Appeals therefore held that the trial judge did not err in denying the defendants’ motion for a directed verdict. Latture v. Emmerling, supra.

The Court of Appeals then took up the intentional infliction of emotional distress claim, which has four elements:  “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.”  Latture v. Emmerling, supra.  Here, the defendants claimed their motion for directed verdict should have been granted because Latture (i) “did not prove intent or causation” and (ii) her “severe emotional distress was not solely attributable to defendants, but to a variety of other circumstances occurring at the same time.”  Latture v. Emmerling, supra.  

The Court of Appeals also noted that the trial judge “correctly understood that the claimed extreme and outrageous conduct was actually the infiltration and unprivileged dissemination of [Latture’s] e-mails and the taking of her garbage.” Latture v. Emmerling, supra. 

As to intent and causation, the Court of Appeals explained that a plaintiff can prove “intent or recklessness” by (i) showing that the defendant “specifically intended to cause plaintiff emotional distress” or (ii) sowing the defendant’s conduct “was `so reckless that any reasonable person would know emotional distress would result.’”  Latture v. Emmerling, supra (quoting Lewis v. LeGrow, 258 Mich. App. 175, 760 N.W.2d 675 (Michigan Court of Appeals 2003)).  It then noted that “[d]efendants' admissions to law enforcement and the trial testimony of Reed, are evidence of their motive in accessing and disseminating plaintiff's e-mails”, which means the trial judge did not err in denying the motion for a directed verdict on the intent issue. Latture v. Emmerling, supra. 

It also found Latture presented “competent evidence” on the issue of causation; as noted above, witnesses described her “change in demeanor and behavior after the emails were disseminated” and Latture testified about the physical problems she suffered. Latture v. Emmerling, supra.  “While there was testimony regarding other possible causes for [Latture’s] distress, this Court will not substitute its judgment for the judgment of the jury when `reasonable jurors could honestly have reached different conclusions.’” Latture v. Emmerling, supra (quoting Silberstein v. Pro–Golf of America, Inc., 278 Mich. App 446, 750 N.W.2d 615 (Michigan Court of Appeals 2008)). 

The court therefore found the trial judge did not err on denying a directed verdict on the intentional infliction of emotional distress issue.  Latture v. Emmerling, supra. For these and other reasons, the Court of Appeals affirmed the jury’s verdict.  Latture v. Emmerling, supra.