Fail-Safe Argument

A Mississippi court recently addressed what, as far as I can tell, was a novel computer forensics argument. The case is Renfrow v. State, 2009 WL 3740656 (Mississippi Court of Appeals 2009).

We’re really not concerned with the facts in this case. Suffice it to say that Rubin Renfrow was charged with possessing child pornography after children who were related to him and had visited his home said he had touched them inappropriately and shown them child pornography. Renfrow v. State, supra. The county sheriff’s department got a warrant to search his home and seize his computer; the sheriff’s deputies who seized the computer delivered it “to the Mississippi Attorney General’s Cyber Crime Unit (the Cyber Crime Center), where forensic investigators Sherita Sullivan and Keith Leavitt examined” it. Renfrow v. State, supra.

Prior to trial, Renfrow filed several motions to suppress evidence obtained from the hard drive of his computer; the trial court denied all of them. Renfrow v. State, supra. Renfrow went to trial on the child pornography charge and was convicted. On appeal, he argued that the trial court erred when it denied his motions to suppress evidence. Renfrow v. State, supra. We’re only going to focus on one of those motions.

Prior to trial and again on appeal, Renfrow argued that the trial court “should have suppressed the evidence that was obtained from his computer because the Cyber Crime Center did not have adequate fail-safe systems to protect the integrity of his original hard drive.” Renfrow v. State, supra. From what?, you ask. Well, in related motions to suppress Renfrow claimed that (i) his original hard drive “might have been exposed to virus contamination while it was in the State’s custody” and (ii) Leavitt found “two `bad sectors’ on Renfrow’s original hard drive”. Renfrow v. State, supra.

The Court of Appeals found that the trial court correctly denied the “virus contamination” motion because while there was “some testimony that there were viruses, spyware, adware or `Trojan’ programs” on the hard drive, “there was no evidence that those items first appeared on the original hard drive while it was in the State’s custody.” Renfrow v. State, supra. The Court of Appeals therefore held that the “only reasonable inference” was that “those items were on Renfrow’s oringal hard drive” when the sheriff’s deputies seized it. Renfrow v. State, supra. The Court of Appeals also noted that the “State’s expert witnesses testified that their use of a `write-blocker’ prevented any alternations to Renfrow’s original hard drive” and he did not present any evidence to the contrary. Renfrow v. State, supra.

The Court of Appeals reached essentially the same conclusion with regard to Renfrow’s “bad sectors” motion to suppress. The court found there was “no evidence that the `bad sectors’ were damaged during the time Renfrow’s hard drive was in the custody of the . . . Sheriff’s Department or the Cyber Crime Center”. Renfrow v. State, supra. It also noted that the two Cyber Crime Center analysts (Sullivan and Leavitt) testified that the Center’s “first priority was to maintain the integrity of the original hard drive”. Renfrow v. State, supra. The court found that “Renfrow’s claim under this heading is entirely meritless” and upheld the denial of his motion to suppress. Renfrow v. State, supra.

And that brings us back to what we’re really concerned with: the fail-safe motion to suppress. On appeal, Renfrow argued that the trial court

should have suppressed the evidence that was obtained from his computer because the Cyber Crime Center did not have adequate fail-safe systems to protect the integrity of his original hard drive.

Renfrow v. State, supra. I wish I could give you more details about Renfrow’s argument here, but I don’t have access to the appellate briefs in the case (via Westlaw or the Court of Appeals’ website) so this is all I know about the factual and technical bases of the argument. It looks, as I noted earlier, like this argument may have been the omnibus claim that encompassed and attempted to justify the “bad sectors” and “virus” claims. But that’s just speculation on my part.

What I do know is that this argument failed, just like the “bad sectors” and “virus” claims. This is what the Court of Appeals had to say about it:

Investigator Gunter [the Sheriff’s Department investigator who executed the warrant at Renfrow’s home and seized his computer] testified that Renfrow's computer was off when he first encountered it in Renfrow's home. Investigator Gunter simply unplugged Renfrow's computer when he seized it. He did not turn on Renfrow's computer to prevent the possibility of any alterations to Renfrow's hard drive. He placed evidence tape over the plug ports to the computer to prevent anyone from hooking the computer up and turning it on.

Sullivan and Leavitt testified in great detail regarding the Cyber Crime Center's fail-safe systems. They described how each aspect of the Cyber Crime Center's fail-safe systems and the investigative process were designed specifically to protect the integrity of an original hard drive. Sullivan removed the original hard drive and placed a write-blocking device on it to prevent any alterations to the original hard drive. Sullivan made an exact copy of the hard drive and examined the copy. The intended purpose behind examining the copy was to protect the integrity of the original hard drive. Leavitt made a similar duplicate copy for Renfrow's expert to examine. Again, the specific purpose of making a copy was to protect the integrity of the original evidence. Renfrow's attorney wanted to boot up the original hard drive so his expert could examine it. The State opposed Renfrow's request and explained that booting up the original hard drive would destroy the integrity of the original evidence. Suffice it to say, every step of the State's procedure to gather evidence from the original hard drive was designed to protect the integrity of the evidence. This issue, like the other two under this heading, is meritless.

Renfrow v. State, supra.

I haven’t seen any other reported cases that raise the “bad sectors” and “fail-safe” claims (the Trojan horse/virus stuff has, of course, been around for quite a while). I thought the claims might be interesting when I first ran across this case, but they seem to have been thrown out almost randomly.

As the Court of Appeals noted, Renfrow never pointed to any specific evidence showing that the investigators were responsible for the bad sectors and/or for the malware on his hard drive. In other words, he never linked either to the officer who seized his computer or the forensics analysts who examined it at the Cyber Crime Center. And he never explained how either had anything to do with the child pornography on his hard drive; basically, the virus and bad sector arguments seem to have been purely “might have” arguments, the kind of murky, technology-conspiracy-theory stuff that might work with a jury, especially a jury that wasn’t particularly tech-savvy. Here, though, it seems to have been pretty much a waste of time.

I don’t know if Renfrow can, or will, appeal to the Mississippi Supreme Court. I suspect the case is over. I don’t see anything that would justify appealing to the U.S. Supreme Court or that court’s taking the case if Renfrow were to try.

And fyi, maybe: On May 2, 2008 Renfrow was sentenced to serve 15 years in prison for the conviction on the child pornography charge. According to the Mississippi Attorney General’s press release, he was then 72 years old and a retired teacher; the press release says he “taught school for 30 years in the Pearl and Jackson Public Schools.” I assume he was out on bond pending outcome of the appeal but is or will soon be starting to serve his prison sentence.

Electronic Indictment Issues

A recent decision of the U.S. Court of Appeals for the Sixth Circuit addresses an issue I, for one, hadn’t run across before.

The case is U.S. v. Simms, 2009 WL 3617543 (2009). And to put the issue the case addressed into context, I need to explain what Simms was charged with and how the charge arose.

Simms was charged with, and convicted of being a felon in possession of a firearm in violation of 18 U.C. Code § 922(g)(1). U.S. v. Simms, supra. The charge arose from these facts:

On November 9, 2005, Antrown Simms led Ohio adult parole officers on a short foot chase through a neighborhood in Mansfield, Ohio. He was eventually apprehended with a large amount of marijuana on his person and taken to the Richland County jail. During the chase, Simms passed by St. Peter's High School and, according to officers, appeared to alter his course as if to hide something. The following day a student at St. Peter's School notified a teacher that he spotted a firearm in the school's parking lot. The school in turn notified the Mansfield Police Department, which collected the firearm.

U.S. v. Simms, supra.

The authorities connected Simms to the firearm “through a series of recorded phone conversations that he place to the home of his girlfriend while he as an inmate at the Richland County jail.” U.S. v. Simms, supra. The details of the phone conversations aren’t relevant to this discussion; suffice it to say that Simms’ girlfriend told him her sister, who attended St. Peter’s School, came home and said that one of the children at the school had found Simms gun and given it to a teacher, who called police. U.S. v. Simms, supra. As the opinion notes, the “jail was in the habit of recording inmates’ phone conversations”, and so captured this particular one. U.S. v. Simms, supra.

That brings us to the issue Simms raised in appealing his conviction on the § 922(g)(1) charge, which was a federal charge Though local police initially investigated the matter, it became a federal case; a federal grand jury indicted Simms for violating § 922(g)(1). U.S. v. Simms, supra.

As Wikipedia explains, a grand jury decides if “there is enough evidence [of criminal wrongdoing] for a trial. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments”. The grand jury was created in 1166 by the Assize of Clarendon, a decree issued by the English King Henry II; the Assize created a new, larger (“grand”) jury to bring criminal charges that would then be tried by the smaller (“petit”) jury. At common law and in the federal system today, the grand jury consists of 16-23 jurors, while the trial jury consists of 12 jurors.

As Wikipedia notes, the Fifth Amendment to the U.S. Constitution requires that charges for “capital or infamous crimes” (e.g., felonies) be brought by a grand jury; the charging document the grand jury returns is known as an indictment. Since the Supreme Court has held that this clause of the Fifth Amendment only binds the federal government, the states can use grand juries and indictments or they can bring charges by other means; the most commonly used alternative is an “information,” which is a set of charges that is brought by a prosecutor, rather than by a grand jury.

To “return” an indictment (i.e., to find that the prosecutor has shown probable cause to believe the defendant(s) named in the indictment committed the crimes charged therein), at least 12 of the 16-23 grand jurors must vote for the indictment. (A federal grand jury can deliberate and vote as long as 16 jurors are present; if more are present, that works, too.) If 12 or more grand jurors vote to return the indictment, the grand jury’s foreperson “must return the indictment to a magistrate judge in open court”. Rule 6(f) of the Federal Rules of Criminal Procedure.

Historically, after the paper indictment was returned to the magistrate judge, it was given to the Clerk of that federal district court; the Clerk would then use the indictment to open the criminal file in the case (the contents of which would, of course, all be hard copy). A few years ago, federal courts began switching to electronic filing; as part of the switch, they adopted local “electronic case filing” (ECF) rules. Here’s how one federal district court’s rule explains the process of electronically filing an indictment:

Indictments must be filed by the U.S. Attorneys Office on a disk or CD-ROM containing the documents in PDF format and must be accompanied by a paper copy of the documents. . . . The original indictment signed by the foreperson shall be returned by the foreperson to a District Judge or Magistrate Judge in open court at the conclusion of the grand jury session. The original indictment shall be retained in the files of the Court.

U.S. District Court for the Easter District of Tennessee, Electronic Case Filing Rules and Procedures § 4.6 (2009).

And that brings us back to the issue in U.S. v. Simms, supra. At trial, Simms’ lawyer

pointed out a flaw in the electronic indictment filed with the district court. . . . [T]he indictment used at trial -- and the only one available to Simms -- contained an offense date of August 15, 2006. However, all of the evidence presented at trial . . . focused on the foot chase of November 9, 2005. Apparently, the original indictment returned by the grand jury contained an offense date of November 9, 2005, but the date was mistakenly changed to August 15, 2006, when the indictment was electronically filed.

U.S. v. Simms, supra. The district court judge in charge of the trial “apparently viewed the original indictment” returned by the grand jury and found it contained “an offense date of November 9, 2005”. U.S. v. Simms, supra. He therefore found that Simms was not prejudiced by the mistake; in instructing the jury, the trial judge used the November 2005 date. U.S. v. Simms, supra. The jury convicted Simms and he was sentenced to serve 100 months in prison. U.S. v. Simms, supra.

On appeal, Simms claimed “he was deprived of his Sixth Amendment right to notice of the charges against him because the electronic indictment contained an incorrect offense date.” U.S. v. Simms, supra. He seems to have argued that the error constituted either a constructive amendment of the indictment or a variance. U.S. v. Simms, supra.

Basically, both a constructive amendment and a variance involve a disconnect between the words used in an indictment and the evidence presented at trial. U.S. v. Simms, supra. The concern, in both regards, is that the defense will be prejudiced because they prepared to disprove one set of allegations and were then confronted with claims that differ, in varying degrees and varying ways, from that set of allegations. So essentially what Simms argued on appeal was that the error in the indictment prejudiced his ability to present an effective defense to the charges against him. U.S. v. Simms, supra.

The Sixth Circuit didn’t agree. It found that while the “government was clearly sloppy in its prosecution of this case,” the error in the indictment didn’t result in a violation of Simms’ Sixth Amendment to notice of the charges against him. U.S. v. Simms, supra. The Court of Appeals noted that “all of the references” to the crime during the trial “used the November 2005 date.” U.S. v. Simms, supra. It also noted that the government read “a correct version of the indictment, containing the November 5 offense date, during its opening statements.” U.S. v. Simms, supra. These factors, plus the facts that Simms was “apprised of the correct offense date” during pretrial discovery and that the jury was instructed on the correct date, led the court to hold that the mistake did not constitute reversible error. U.S. v. Simms, supra.

This is the only case I’ve found, so far, in which the use of electronic filing in a criminal case resulted in a challenged to a conviction. A somewhat similar argument seems to have come up in U.S. v. Pegross, 2007 WL 1771542 (U.S. District Court for the Eastern District of Michigan 2007), but it doesn’t seem to have gone anywhere. In Pegross, the defendant’s attorney claimed that the

electronic filing of the indictment and signature of the grand jury foreperson is inadequate. Defendant also filed a motion seeking copies of the original indictment; he alleges the Government engaged in abusive practices by not providing a copy and that the indictment perhaps has been altered.

U.S. v. Pegross, supra. The district court judge in that case said he was going to examine the indictment, along with defense counsel and the prosecutor, to ensure that there had been no alteration. He found that this would safeguard the defendant’s rights and also found there was “no evidence that the Government intentionally withheld the original charging documents or engaged in abusive practices.” U.S. v. Pegross, supra.

Bottom line: It seems there may occasionally be glitches due to the way electronic filing is working at this point. The problem seems to be that there can occasionally be errors as a result of transferring/moving from the original paper indictment to the electronic version (for some reason I don’t quite understand). I assume it’s going to be a transient problem that will resolve itself as the electronic filing process becomes better established.

Evidence of Other Crimes

In a post I did earlier this year, I explained that Rule 404(b) of the Federal Rules of Evidence limits the use of a defendant’s “other crimes, wrongs, or acts” as evidence in a criminal trial. Under the Rule 404(b), evidence of other crimes, etc., cannot be admitted to show (i) the defendant’s “bad character” and (ii) that he acted “in conformity” with that bad character in committing the crime(s) with which he is charged.

This post is about a recent decision of the Indiana Supreme Court that addressed the use of “other crimes” evidence in a prosecution brought under state law. The case is Clark v. State, 915 N.E.2d 126 (Supreme Court of Indiana 2009). The charges were based on conduct that’s truly horrific:

Ian Clark was living . . . with his fiancée Matara Muchowicz and her daughter Samantha. Samantha typically stayed with a friend while Clark and Matara were at work, but Clark had been laid off . . . and . . . Matara began leaving Samantha with Clark for the day.

When Matara arrived home on May 25th, . . . she found Clark lying on the couch with Samantha on his chest, naked and blue. Matara approached the couch and noticed blood on the blanket that was covering up Clark. . . . Clark sat up and then . . . stumbled into the coffee table, dropping Samantha on the ground. . . .. Matara tried to wake Samantha, but she was cold. . . .

Matara dialed 911, but Clark grabbed the phone. . . . He kept telling Matara Samantha was fine. Matara told Clark they needed to call an ambulance. . . . Clark took the phone from Matara and tried to drag her away from the phone. When Matara managed to dial 911 . . . Clark struck Matara in the back of the head with his fist.

Matara managed to make a second call to 911. . . .The 911 operators could hear Clark interrupt and disconnect the attempted calls. After completing the 911 call, Matara put a diaper on Samantha and went outside where she met a police officer.

The . . . deputy who had arrived on scene tried to revive Samantha . . . . [He] noticed Samantha suffered a split lip, was limp, her jaw was crushed, and she had bruises all over her body. Paramedics were unable to revive her. They observed that Samantha had bruises all over her body, her right jaw was swollen, black and blue, and she had blood around her mouth, and bruises on her chest area that resembled fingerprints.

Clark v. State, supra. Samantha “suffered at least twenty separate injuries, more than one of which would be lethal”. Clark v. State, supra. “The official cause of death was by multiple blunt force injuries”. Clark v. State, supra. Clark was charged with, and convicted of, murder. Clark v. State, supra.

Clark appealed, arguing, in part, that the “trial court abused its discretion when it admitted evidence” of Clark’s “own personal entry on MySpace”. Clark v. State, supra. At trial, Clark testified in his own defense and on cross-examination the prosecutor read “to Clark, over defense counsel’s objection, his own description of himself” from his post on MySpace:

`Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere. To those people I say, if I can do it and get away. B ... sh.... And with all my obstacles, why the f ... can't you.’

Clark v. State, supra. Clark claimed this was “inadmissible character evidence” under Indiana Rule of Evidence 404(b). Clark v. State, supra. Like the federal rule I wrote about in my earlier post, the Indiana rule says evidence “of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” As the Indiana Supreme Court noted, evidence is excluded by Indiana Rule 404(b) “when it is introduced to prove the `forbidden inference’ of demonstrating the defendant’s propensity to commit the charged crime.” Clark v. State, supra.

The Indiana Supreme Court also noted, however, that “[o]therwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence.” Clark v. State, supra. The court explained that the “door may be opened when the trier of fact has been left with a false or misleading impression of the facts.” Clark v. State, supra. That, the Indiana Supreme Court held, happened here.

The court first noted that Clark’s MySpace posting “contained only statements about himself”, so “this is solely evidence of his own statements, not of prior criminal acts.” Clark v. State, supra. The Indiana Supreme Court therefore held that since it “was Clark’s words and not his deeds that were at issue,” Indiana Rule 404(b) did not apply here. Clark v. State, supra.

The court then turned to the issue of “whether the MySpace entry was actually probative of any issue at trial.” Clark v. State, supra. It found the posting was probative because “Clark made his character a central issue, a reasonable defense strategy aimed at obtaining a jury verdict on the lesser-included offense of reckless homicide.” Clark v. State, supra.

(As Wikipedia explains, a lesser-included offense “is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime.” The elements of murder are (i) purposely (ii) causing (iii) the death (iv) of a human being. The elements of reckless homicide are (i) recklessly (ii) causing (iii) the death (iv) of a human being. Reckless homicide is therefore a lesser-included offense of murder. As Wikipedia notes, in a criminal trial the judge can, if the facts so warrant, instruct the jury that they can convict the defendant of the serious crime with which he or she is charged or of a lesser-included offense contained in that charge. Clark’s defense attorney was trying to convince the jury to convict him of reckless homicide, instead of murder. . . which was probably the best the defense could hope for, given the facts.)

When he testified at trial, Clark claimed he was simply reckless in causing Samantha's death:

Clark: I was reckless. I was irresponsible. I was an a ... hole. . . . .That's what I am, but I'm not an intentional killer. I . . . don't even know how to explain this, but there's a lot better ways to kill somebody that [sic] doing it like that. You know, there's no attempt to hide the crime. I didn't clean up anything. I didn't change clothes, mens rea. People do certain things when they kill somebody. They try to hide a crime. There's no evidence. . . . that I tried to hide anything. And the cops, they know that. They know that.

[Prosecutor]: You say, your conduct is reckless?

Clark: Most definitely. That's what your evidence shows.

[Prosecutor]: Well, why didn't you pick up the phone and call 911?

Clark: Once again, I was incoherent. It's an issue of coherency. You asked me a question. Can I answer it?

[Prosecutor]: Sure, go ahead.

Clark: I mean, it's more or less common sense for the Jury. Let them figure it out, but . . . your own tests say I am drunk. . . . You're making a murder charge out of a reckless homicide charge. . . .

Clark v. State, supra.

The Indiana Supreme Court held that “[o]nce Clark took the stand to testify along these lines, it was proper to permit the prosecution” to confront him with his MySpace posting, which “rebutted his defense” of reckless homicide. Clark v. State, supra. So it affirmed Clark’s conviction and his sentence of life without the possibility of parole.

This is the only reported case I can find in which a post on a social networking site was offered as evidence admissible under Rule 404(b). This court, of course, found that Rule 404(b) didn’t apply to Clark’s posting because he’s talking about himself, not about other crimes he’s committed. I think the Indiana Supreme Court was correct in that.

This isn’t the only reported case I’ve found that deals with using a MySpace or Facebook posting to impeach a witness. In State v. Corwin, 2009 WL 2562667 (Court of Appeals of Missouri 2009), the defendant, who was charged with “forcible rape” tried to introduce a posting on the victim’s Facebook page. The defendant in this case apparently wanted to introduce the posting – in which the victim said she’d had “`a pretty rough night’” and had “`the bruises to prove it’” – to prove that there were “alternative sources for the Victim’s injuries including the notion that she might have fallen down while intoxicated and bruised herself.” State v. Corwin, supra.

The Missouri Court of Appeals held that the trial court properly refused to admit the evidence because it wasn’t relevant. The Court of Appeals noted that this particular post was made nine months after the defendant allegedly raped the victim, and so could have no evidentiary bearing on that event. State v. Corwin, supra. It also noted that the defendant wanted to admit a printout of all or many of the victim’s Facebook postings, the scope of which far exceeded the issues in the rape trial; the court held that because the printout included a host of irrelevant evidence, it should not have been admitted as evidence in the rape trial. State v. Corwin, supra.

I’m sure we’ll see more decisions addressing the use of this kind of evidence. Aside from anything else, what we post online could definitely be used to impeach us if we took the stand at a trial or a hearing, which raises what might be a new issue. The victim in the Corwin case admitted she’d posted the comment about having had a “`pretty rough night’” but said she was “`trying to be funny’” when she wrote it and didn’t “`think that is what happened.” State v. Corwin, supra. So here, we essentially have the person who wrote the post impeaching herself.

Authenticating MySpace Evidence

In an earlier post, I explained that one of the things the prosecution (or any litigant) must do to be able to introduce evidence is to “authenticate” the item to be introduced, i.e., to show that it is what it purports to be. In that post, I talked about how someone goes about authenticating emails they want to introduce as evidence.

This post is about authenticating MySpace postings. More precisely, it’s about how courts handled the issue of authenticating MySpace postings in two cases, one civil, the other criminal.

We’ll start with the civil case: Dockery v. Dockery, 2009 WL 3486662 (Tennessee Court of Appeals 2009). In October, 2008, after what seems to have a been a long and pretty contentious relationship. Melissa Dockery obtained an order of protection barring her ex-husband, Kevin Dockery, from contacting her. Dockery v. Dockery, supra.

Since the order was entered ex parte, the court set a hearing on the matter for November 20; the purpose of the hearing was to let Kevin be heard on the issues. Dockery v. Dockery, supra. At the hearing, the judge who entered the order determined that because Kevin was “at jeopardy for incarceration” for allegedly violating the order, he needed a lawyer; so the judge appointed a lawyer for Kevin and rescheduled the hearing for December 18, 2008. Dockery v. Dockery, supra.

At the December 18 hearing, the judge found that Kevin violated the order of protection “on 17 different occasions” and therefore was guilty of 17 counts of criminal contempt; he was sentenced to serve 10 days in jail for each count. Dockery v. Dockery, supra. Kevin had apparently contacted Melissa 17 times; she introduced evidence that he’d called her “numerous times” using a “restricted number” and that all four of her car tires had been slashed.) Dockery v. Dockery, supra.

On January 12, 2009, Melissa filed a motion seeking to have Kevin held “jailed for further violations of the” protection order. Dockery v. Dockery, supra. She claimed that “after being released from mail for the previous criminal contempt charges, [he] continued to violate the order of protection by contacting her and making threats to harm her and their children.” Dockery v. Dockery, supra. Kevin was arrested and court referred the matter to a Special Master, who found Kevin guilty of 7 more counts of criminal contempt and ordered him to serve more time in jail. Dockery v. Dockery, supra. The court adopted the Special Master’s findings and the sentence he imposed. Dockery v. Dockery, supra.

Kevin appealed, arguing that the Special Master erred “by permitting the introduction of certain evidence” at his trial for contempt. Dockery v. Dockery, supra. One of the items of evidence Kevin challenged was printouts of “communications” he had with “Ms. Lowe” via MySpace:

Ms. Lowe was called as a witness at trial . . . [and] testified to the two times Husband contacted her on MySpace and asked her to contact Wife and have Wife call him. Ms. Lowe printed these communications with Husband and they were admitted as evidence at trial. Ms. Lowe testified that the copies accurately depicted the communications she had with Husband. Husband objected to the admission of the printouts on the basis that they had not been properly authenticated.

Dockery v. Dockery, supra. The Special Master conducting the trial asked Kevin’s attorney what the Tennessee Rules of Evidence required for authentication. The attorney responded by quoting Rule 901(a), which provides as follows:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the matter in question is what its proponent claims.

Tennessee Rules of Evidence Rule 901(a). At trial, the Special Master asked Ms. Lowe

where the documents came from. Ms. Lowe stated that she printed them directly from her computer. Ms. Lowe added that the printouts showed exactly what Husband said, as well as what she said, and identified which party . . . was making a particular statement. The Special Master concluded that Ms. Lowe was able to `authenticate these documents as having been printed from her computer. So I will allow them to be admitted. . . . ‘

Dockery v. Dockery, supra. On appeal, Kevin argued that the printouts “could be authenticated only by a representative of MySpace.” Dockery v. Dockery, supra. More precisely, he argued that the printout was admitted through the testimony of Ms. Lowe

despite the fact that the printout was never authenticated by representatives of MySpace as being an accurate depiction of posts on their website by the aforementioned parties. This admission of evidence . . . is especially problematic in light of the fact that MySpace communications are especially prone to tampering and/or fabrication. As such, it is clear that the printout admitted into evidence had not been properly authenticated. . . .

Brief of the Appellant, Dockery v. Dockery, 2009 WL 2428573 (2009).

The prosecution responded by pointing out that under Tennessee Rule 901(b)(1), writings (including electronic communications) “can be authenticated by testimony of a witness with knowledge”. Brief of the Appellee, Dockery v. Dockery, 2009 WL 3230457 (2009). The prosecution claimed the printout was properly authenticated by Ms. Lowe because she testified that they were “what [they were] claimed to be”, which is all Rule 901 requires. Brief of the Appellee, Dockery v. Dockery, 2009 WL 3230457 (2009).

The Tennessee Court of Appeals agreed with the prosecution. It held that the evidence “was properly authenticated by Ms. Lowe, and that a representative of MySpace was not a prerequisite to its admission.” Dockery v. Dockery, supra. I think that’s correct.

There’s another recent case – a criminal case that also involves divorce -- in which the defendant claimed MySpace postings weren’t properly authenticated. The case is State v. Trusty, 2009 WL 3381574 (Wisconsin Court of Appeals 2009). Here is how the issue arose in this case:

[Jeremy] Trusty was involved in a Trempealeau County divorce proceeding assigned to Judge Gerald Laabs. Over Trusty's objection, Judge Laabs scheduled a hearing at the Jackson County Courthouse. Before the date of the hearing, Judge Laabs became aware of an internet posting in which Trusty described a story Trusty had read about the murder of a judge by a disgruntled divorce litigant. In the posting, Trusty expressed negative feelings toward the judicial system and appeared to approve of the killer's actions. Concerned by the posting, Judge Laabs arranged to have bailiffs at the scheduled hearing, and alerted courthouse employees.

On the day of the hearing, Trusty was waiting in the hallway for his case to begin when a court employee overheard him say to another individual that `We could just go in and shoot everybody.’ The State charged Trusty with threat to a judge. . . and disorderly conduct. . . .

State v. Trusty, supra. Trusty went to trial; the jury acquitted him on the threat to a judge charge but convicted him of disorderly conduct. State v. Trusty, supra.

Trusty appealed, arguing, in part, that “printed copies of [his] internet posting, his MySpace page” were improperly admitted at trial. State v. Trusty, supra. The printouts of the postings were introduced as Exhibits 1 and 2. On appeal, Trusty argued that the

circuit court should have excluded these exhibits at trial because his MySpace page was tampered with and not authentic. He asserts that an authentic MySpace page, as exemplified by other MySpace pages he offered, shows a user's sign-up date. Exhibits 1 and 2 do not show such a sign-up date.

State v. Trusty, supra. Trusty, then, was proceeding on the same theory the defense used in the Dockery case, i.e., that special care must be taken in authenticating printouts of MySpace postings because they are subject to alteration and/or fabrication. It might have been an interesting argument; it was, unfortunately, a disappointing anticlimax.

The primary problem seems to have been that Trusty represented himself on the appeal. State v. Trusty, supra. I’m not saying it’s impossible for a non-lawyer to do a good job in handling an appeal, but it’s likely to be very difficult, as this case demonstrates.

Some of the arguments Trusty made weren’t grounded in the law, and as part of his appeal Trusty ask the court to award him attorney’s fees “related to this litigation” (I assume for the attorney who defended him at trial) “along with a sum of money to compensate him for the attendant humiliation, stress, and inconvenience” of the case and the appeal. State v. Trusty, supra. That might seem reasonable to a non-lawyer, but you don’t ask for attorney’s fees and damages in a criminal case, let alone a criminal appeal; civil cases are about damages, criminal cases are about punishment.

That brings us back to the authentication issue: As the appealing party, Trusty was responsible for providing the Court of Appeals with a complete transcript showing what occurred at trial, “including whether the circuit court made any particular rulings or fact findings when the exhibits were admitted.” State v. Trusty, supra. He didn’t do that, which meant the record was incomplete and the Court of Appeals could not determine whether the lower court erred in admitting the exhibit. State v. Trusty, supra. The Court of Appeals found that “[g]iven an incomplete record,” it had to “assume that the missing material” supported the lower court’s decision to admit the exhibits”. State v. Trusty, supra. It therefore rejected Trusty’s argument on this issue. State v. Trusty, supra.

Juror Emails Defense Attorney

As I noted in an earlier post, courts are grappling with technology’s impact on what is called “juror misconduct.” As I explained, "juror misconduct" refers to conduct by jurors that is inconsistent with their proper role in a criminal trial.

Juror misconduct historically involved jurors conducting their own research (e.g., going to the crime scene to “get a feel for it”); with the Internet, jurors have gone online and researched legal or factual issues relevant to the matters involved in the trial. As I noted in the earlier post, this is improper behavior because jurors are only supposed to decide a case based on the evidence that is presented during trial.

I just ran across a case that involves a juror’s very different use of computer technology. In U.S. v. Villar, As I’ll explain in more detail later, the juror told the lawyer that certain things had happened in the jury room which indicated that some of the jurors were racially biased. U.S. v. Villar, supra. 2009 WL 3738787 (U.S. Court of Appeals for the First Circuit 2009), one of the jurors in Richard Villar’s criminal trial emailed Villar’s defense attorney after the verdict (a conviction) had been returned.

First, I should outline the charges and the case against Villar. He, Joshua Gagnon and Dedra Scott were charged with conspiring to commit bank robbery in violation of 18 U.S. Code § 371 and committing bank robbery in violation of 18 U.S. Code § 2113(a). U.S. v. Villar, supra. Here’s a brief summary of the evidence that was presented at trial:

[A] teller at St. Mary's bank . . . was returning from lunch when a man wearing a hooded sweatshirt and a ski mask . . . stuck something against her side, and told her to get inside the bank. The man had a `Hispanic accent.’ . . . Once inside the bank, the teller saw that. . . . [a]nother man, who was white, was asking tellers to place money inside a bag. The Hispanic robber holding the gun pointed it at another teller who was hiding underneath her desk and told her to stand in the middle of the bank lobby. Later, he told the two tellers to get down on their knees before both men fled the bank. . . .

[One witness said] a few days prior to April 18. . . . Villar suggested to Scott, Gagnon, and Harrington that they rob a bank. . . . Scott and Gagnon seemed interested. . . .

On the day of the robbery [Scott drove Villar and Gagnon to the bank and picked them up]. . . . a few blocks [from it]. . . . When they stopped at a gas station, Gagnon threw a bag of money on the front seat. Villar opened the bag and showed Scott the money. . . .

Eyewitnesses Rino Giordano and Melissa Nichols observed two men acting suspiciously around the time of the robbery in the vicinity of St. Mary's Bank. They described one of the subjects as Hispanic and as being shorter than his companion. . . .

U.S. v. Villar, supra.

“Hours after” the jury convicted Villar on all charges, his defense attorney went back to his office and received an email entitled “`Juror No. 66.’” U.S. v. Villar, supra. This is what the email said:

I . . . want you to know there were at least 3 people on that jury who actually listened to the testimony with an open mind. We tried to make the rest pay attention. We made them go through every piece of evidence and every witness. Between us we pointed out every discr[e]p[a]ncy. They made up some story to explain it away. . . . I will go to jail before I ever serve on another jury. It was awful. I'm sorry we couldn't do anything. We finally decided to not prolong that young man's hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here's one example, A man said `I guess we're profiling but they cause all the trouble.’ . . .[I]f I thought he would have gotten a different kind of jury the next time I think [I] would have kept them there. These people are the salt of the earth and there is no gray in their lives. I really hope they never get into the scales of blind justice because she isn't. . . .

U.S. v. Villar, supra. Villar’s lawyer moved to set the jury’s verdict aside based on the possibility it was the product, at least in part, of bias and prejudice “based upon Villar’s Hispanic ethnicity.” U.S. v. Villar, supra.

After holding a hearing on the issue, the judge said that while he thought “ethic bias is so reprehensible in the deliberative process” he might act differently if he had the option of doing so, Rule 606(b) of the Federal Rules of Evidence “did not give him `discretion to act’” in this matter. U.S. v. Villar, supra. Rule 606(b) provides as follows:

Upon an inquiry into the validity of a verdict . . . a juror may not testify as to any . . . matter occurring during . . . the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. . . .

Rule 606(b) lets jurors testify about the kind of juror misconduct I described above, but not about what was said during deliberations. It seemed Villar was out of luck, i.e., had no way to use the email the juror sent his lawyer.

Villar appealed, but the Court of Appeals held that the district court judge was correct when he held that Rule 606(b) precluded him from investigating the allegation of bias raised by the juror’s email. U.S. v. Villar, supra. The Court of Appeals, however, also considered whether “the application of Rule 606(b) to prevent juror testimony about racial or ethnic statements made in jury deliberations is unconstitutional, violating a defendant’s right to due process under the Fifth Amendment and to a trial by an impartial jury as guaranteed by the Sixth Amendment.” U.S. v. Villar, supra.

The court began its analysis by evaluating the Supreme Court’s decision in Tanner v. U.S., 483 U.S. 107 (1987). After being convicted of federal crimes, the Tanner defendants moved for a new trial based on a call Tanner’s attorney received from one of the jurors after the trial was over; the juror told the lawyer that several of the jurors drank alcohol during their lunch breaks and tended to sleep during some of the afternoon sessions. Tanner v. U.S. supra. The district court judge in the Tanner case held that Rule 606(b) barred him from hearing juror testimony on the issue and therefore denied the motion for a new trial. Tanner v. U.S. supra.

The Supreme Court held that applying Rule 606(b) to bar juror testimony in this case did not violate the defendants’ right to an impartial jury. Tanner v. U.S. supra. The Tanner Court held that 4 aspects of the trial process adequately protect this right: potential jurors are examined during voir dire; during trial the jurors’ conduct is observable by the court, the lawyers and court personnel; jurors can observe each other and can report misconduct to the court before they enter a verdict; and a defendant can challenge a jury verdict after trial by using “nonjuror evidence of misconduct.” Tanner v. U.S. supra.

The Court of Appeals deciding the Villar case found that the Tanner factors do not provide

adequate safeguards in the context of racially and ethnically biased comments made during deliberations. While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias. In addition, visual observations of the jury by counsel and the court during trial are unlikely to identify jurors harboring racial or ethnic bias. Likewise, non-jurors are more likely to report inappropriate conduct-such as alcohol or drug use-among jurors than racial statements uttered during deliberations to which they are not privy.

U.S. v. Villar, supra. It held that the district court judge “did have the discretion to inquire into the validity of the verdict by hearing juror testimony to determine whether ethnically biased statements were made during jury deliberations and, if so, whether there is a substantial probability that such comments made a difference in the outcome of the trial.” U.S. v. Villar, supra. The Court of Appeals therefore remanded the matter to the district court judge so he could decide if he wanted to hear juror testimony or thought it was not appropriate given “the passage of time”. U.S. v. Villar, supra.

The appellate court emphasized that “not every stray or isolated off-base statement made during deliberations requires a hearing at which jury testimony is taken. . . . [T]he need to protect a frank and candid jury deliberation process is a strong policy consideration.” U.S. v. Villar, supra. It quoted the Tanner Court’s observation that

`[t]here is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it.’

U.S. v. Villar, supra.

I found two civil cases in which jurors emailed a lawyer in the case, but neither email raised ethnic or racial bias, so the courts proceeded under Rule 606(b) or state versions of that rule. I found a criminal case – U.S. v. Iona Management S.A., 526 Supp.2d 319 (U.S. District Court for the District of Connecticut 2007) – in which one of the jurors sent the prosecutor an email congratulating him on getting a conviction. The defenseattorney filed a motion to have the juror interviewed to determine if he had been biased in favor of the government, but the district court judge found that while the juror’s email “may have been `uncommon’ and `congratulatory,” that fell “short of showing the degree of . . . misconduct” required to open an inquiry into the matter. U.S. v. Iona Management, supra.

I'm waiting for a case in which a juror emails one of the attorneys DURING deliberations.