The criminal defendant’s precious “right to remain silent” is under an unprecedented assault these days, according to top Connecticut defense lawyers. It’s not from police or prosecutors. The threat comes from the defendants themselves.
The cell phone has become an all-purpose evidence-generating device, saving texts and tweets all day long, and permanently. And with cell tower locations and GPS tracking, retracing peoples’ whereabouts is easy to reconstruct. “It’s like these spy movies you see, where somebody’s on a phone tracking another person’s location.” said Day Pitney’s Stanley Twardy Jr. Add to that blogging, e-mails and Facebook posts, and it’s become commonplace for even people of modest means to become human broadcast centers.
No one has illustrated this better than John McAffee, the 67-year-old software antivirus mogul who retired from the business world to pursue blogging, beaches and a hedonistic life on the Central American coast of Belize. A day after someone poisoned four of his guard dogs, McAfee’s neighbor, with whom he had been feuding, was shot and killed. McAffee dyed his blond-tipped hair black and fled to points unknown, blogging all the way.
Days later, reporters from the digital magazine Vice sent out photos of themselves with McAfee, boasting to their media rivals, “We’re Interviewing McAfee Right Now, Suckers!” Unbeknownst to the anti-virus king, the photos contained digital geo-location data that records where the photo was taken — poolside in a Guatamalan hotel. Interpol agents soon found McAfee.
In Connecticut, criminal defense lawyers find themselves increasingly caught up in the new digital deluge that McAfee exemplifies.
In every one of his last six trials, Gerald Klein of Hartford, says that high-tech digital evidence played a central role. “Every single one of those trials had either Facebook or MySpace evidence, or tracking of a cell phone — the whole 21st-century universe. People can’t stop talking about themselves,” he said. And when they do “talk,” it’s often jotted down by a computer hard drive somewhere.
He gave the example of a recent case where he defended “a 26-year-old handsome, educated kid.” During a snowstorm, “a woman came over to his place. They got drunk and he had intercourse with her. The next day she claimed she was unconscious, all she could remember was seeing a penis and saying no.”
With facts that blurry, Klein said, “How could I lose?”
But things are not so simple in a case in the digital age.
“The young man started texting. In response to her accusations of abuse, he texted back, ‘Will you ever forgive me? I am the worst person in the world. I really liked you, and I don’t blame you if you go to the police.’
“It got worse. There were about 30 of these texts in a five-hour period,” said Klein.
The plea bargain offered was jail time and mandatory sex registration. The client chose a jury trial. “The prosecutor blew up on the screen all of the texts,” said Klein. “I’m thinking to myself, ‘I’m screwed — I better make a good closing argument on this one.’
“The young man took the stand and explained that the girl was texting him, and was so convincing in her complaints that he played along, if you can believe that,” said Klein. The jury found him not guilty.
Klein has had a string of wins lately, but one he lost was due to a chance identification of a suspect “from people going on Facebook.”
The photo array requirement only applies to the government, Klein said. “Only the police are obligated to show an array of six people. If somebody sees someone’s face in the paper,or on Facebook, that’s totally admissible. In this case, the probable cause was the Facebook page.”
According to New Haven defense lawyer Tara Knight, the trend is toward more chatter and less discretion. “The younger generation does not have the same privacy desires as those over 35 and up,” she said. Many have no compunction about putting their life stories on Facebook, Knight said. This can work for or against a criminal defendant.
Knight recently represented a young boy who was accused of taking advantage of a passed-out girl, a schoolmate. “We worked out a plea agreement. But she kept on saying how she was so traumatized by it. Yet on her Facebook she posted pictures of her with the boy after the incident. I was able to show to the judge that her testimony was disingenuous and insincere in light of the Facebook photos.”
On the “against” side of things, she said, “I also have clients, in gang-related cases especially who communicate, stupidly, in that gang-speak can be very detrimental to their case.” They talk tough to each other in Facebook postings, and pose with firearms, she said, “without thinking someone would come across this — like a probation officer — who could do something about it.”
In that sense, McAfee has a something in common with a gang member on Facebook. “It’s a lot worse when they have all these media they can go onto and share their diatribes and stream-of-consciousness thoughts,” Knight said.
Shipman & Goodwin lawyer James Bergenn recently got the upper hand in a case by looking at the LinkedIn site of the “victim” in a case where Bergenn’s client was the accused aggressor.
“The other guy, in his LinkedIn site, identifies himself as having a ‘doctorate in kicking ass.’ And he also had menacing pictures of himself in his Facebook account. He’s in his 20′s and he’s big — it didn’t help his credibility.” Increasingly, Bergenn said, it’s difficult to ignore the importance of checking social networking sites in many criminal defense matters.
And then there’s the simple e-mail. It goes without saying that prosecutors often use e-mails written by suspects as evidence. But Twardy notes that a person can get into just a much trouble receiving an e-mail, especially if the message reveals unlawful activity.
In the old days, said Twardy, a former Connecticut U.S. Attorney whose practice includes white-collar crime suspects and corporations being investigated by the government, “the things that would get you in trouble were written documents that were inconsistent with peoples’ testimony.”
Now, he said, e-mails are being used for the same purpose. The assumption is that if someone is copied on an e-mail, they must have known what was going on, Twardy said. “The government oftentimes takes the position that somebody has read each and every e-mail that has come in — which we all know we don’t,” he said. “In the course of a day, I get hundreds of e-mails. Do I read each one carefully? A lot of them are junk.”
He compared e-mails to GPS tracking. A defendant might not remember receiving a certain e-mail, or being at a certain location when GPS said they were there. But, said Twardy, that doesn’t necessarily make them guilty of anything.
In this situation, he said, the defense lawyer has the job “of putting everything into perspective. Your memory is not as good as all the records out there. Discrepancies don’t mean that a person is purposely lying. It just means that the [digital] records are better than the mind.” •