South Carolina Criminal Defense Blog

I am still amazed by the internet and specifically Facebook, and I believe that it has changed our experience of the world and life like nothing else since the invention of the telephone. Social networking sites, but specifically Facebook since I am on there and most people that I know are also, have enabled us to almost constantly feel connected with hundreds of people that we know.

I used to wonder at the people walking around with cell phones stuck to their heads, thinking about how people have become increasingly connected with the people and the world around them, like it or not. Facebook has taken these connections to new levels.

There have been stories circulated here and there, like novelties, of ways that Facebook has been used in the criminal justice or legal context, but today I was reading a few of these and I was struck by just how commonplace these stories have become and how much an integral part of our society this phenomenon has become.

Facebook is a multi-purpose platform that is wonderful for connecting with old friends and keeping up with new ones. It is also useful for researching potential witnesses (or defendants) and finding cross-examination or impeachment material, it can become evidence as to a person's whereabouts at a particular time, it is used as a virtual meeting place for persons engaged in crime, it is swiftly becoming an effective law enforcement tool, and on a more sinister note it is undoubtedly used as an information-gathering data-mining tool by corporations and government agencies.

Some examples:

- Can an attorney ethically use deception to "friend" a potential witness on Facebook for purposes of gathering information on them? Most ethics opinions that I've seen have said no.

- But apparently it is ok for insurance companies to friend Nathalie Blanchard on Facebook and then cancel her disability benefits based on pictures she posted. She was apparently suffering from severe depression, and yet looked happy on her Facebook page.

- And it is ok for law enforcement to pretend to be an attractive girl to get access to University of Wisconsin La Crosse student Adam Bauer's Facebook page, and then charge him with underage drinking based on a photo of him holding a beer.

- In California, lawmakers are debating the problem of gangs that appear to be using Facebook and Twitter to recruit members. New laws criminalizing recruitment of or association with gang members online? Or maybe internet loitering.

- Jennifer Wilson was attacked at a nightclub (another girl hit her in the face with a beer mug) and, when law enforcement did nothing to apprehend the attacker, she took matters into her own hands. She recognized one of the girl's friends and then scoured through networks on Facebook, looking at friends of friends, until she found the girl and provided her home address and place of employment to the police.

- Police departments across the country are realizing the potential of social networking sites such as Facebook for identifying, locating, and tracking down suspects. Some, such as these in Olive Branch, Mississippi and Medina, Ohio, are creating Facebook pages for their agencies, posting photos and profiles of suspects, and asking for help in crime-fighting from the online community.

- Facebook provided an alibi for a teenager in New York who was accused of participating in a robbery. The website verified that a message from Rodney Bradford had been typed and sent from his father's computer at the time of the robbery.

- Ever a shining example of what we need to be vigilant not to become, Iran has created a special task force to police the internet, in a thinly veiled effort to squash speech that is critical of the government:

"Given the spread of internet use, police must confront crimes taking place in the web atmosphere," the Iranian media reported him as saying. "A special committee has been set up to monitor the internet and deal with crimes ... such as fraud ... insults and the spreading of lies."

While vowing to tackle internet crimes in general, the unit's political nature is indicated by the emphasis on "insults and lies" – a term often used to describe opposition statements since the election.

Does our government collect information on us through social networking sites such as Facebook? And for that matter, was the desire to collect information on citizens part of the driving force that made Facebook possible? I don't know. There is no privacy on the internet and, although I believe we should fight for privacy rights online, it is probably best to assume that someone somewhere watches everything that you do and knows everything about you. At any rate, they could have the information at their fingertips if they wanted it and knew where to look.

Facebook, the CIA, and the Information Awareness Office:

The standard method of impeachment by prior inconsistent statement is to have documents organized and tabbed, ready to impeach if the witness does not admit to the statement you are confronting him or her with. This could be an incident report, a preliminary hearing transcript, a written statement, or a transcript made from a recorded statement.

In our last two trials, we had discovery which included extensive audio-recorded interviews by potential witnesses, including the state's jailhouse snitches. Rather than attempt to transcribe every interview, which would have been ridiculously time consuming and expensive, I bought an IPod-touch to put the statements on.

I have seen impeachment by an audio-recorded statement using the original cd-roms - to do it this way you would mark the location of the statement that you anticipate would be needed for impeachment (i.e. 7:39 - 8:05 snitch says to cop yes I was lying to you, it was because I wanted you to give me a sweet deal), then if the witness denies having made the statement you simply pull the microphone down to the computer, set whatever media player you are using to that location, and play that portion of recording. The problem with this method is that it is somewhat cumbersome, you have to return to counsel table and mess with the computer every time you want to use it, and if there are inadmissible portions of the recording you have to be very careful not to over or undershoot your mark on the audio.

What works even better is to create audio-clips of each potential impeachment, and then move it to the IPod-touch. You can label categorize it as "genre" = the name of that particular trial; "artist" = the witness' name; and "song" = your label for that particular clip. It is easy enough to organize all of the clips, once they are separated from the original recording, on I-Tunes which will work on a Mac or on Windows.

You can use free editing software like audacity to locate and cut audio clips that you will be using on the IPod. Even if what you have is video, you can convert it to an mp3 or wave file and then cut the clips that you need. Make sure that the clips you are using contain enough material just before and after the desired statement that it doesn't seem like you are taking the statement out of context - the exception being where there is material that is inadmissible that must be edited out.

You can then use a small speaker (I spent about 80$ on a small portable speaker that still has good volume) connected to the IPod to play the clips when they are needed. You can carry the whole set-up in one hand to where-ever you will be cross-examining the witness, and when the witness denies making the statement, pick up the IPod, tap it a few times, and out comes the witness' voice saying exactly what he just denied. It works wonders to keep witnesses honest - once you impeach them once or twice most witnesses catch on, and just looking at the IPod sideways will make them agree wholeheartedly with whatever question you are asking.

(H/T to Jonathan Hiller who helped to figure this out and to set it up for us)

in State v. Mercer, the S.C. Supreme Court holds that it is "clear error" for the trial judge to exclude testimony that a Spect scan revealed an abnormality in the defendant's brain during the penalty phase of a death penalty trial. It was, however, harmless error in this case.

A. “Spect Scan”

Dr. Steedman is a medical doctor who is board certified in neurology and psychiatry. Dr. Steedman analyzed a “SPECT Scan” conducted on Mercer’s brain.[6] The SPECT Scan was initially reviewed by a radiologist who noted a “questionable abnormality.” Dr. Steedman was prepared to render a stronger finding of an abnormality. The State objected strenuously against such testimony, claiming surprise and prejudice. After an offer of proof and lengthy discussion, the trial court sustained the objection on the basis of Rule 403, SCRE, and a so-called “discovery order” violation. This ruling rises to the level of an abuse of discretion.

Application of Rule 403 should be cautiously invoked against a capital defendant in the penalty phase, especially in light of the due process implications at stake when a capital defendant seeks to introduce mitigation evidence.[7] The probative value of Dr. Steedman’s excluded testimony was, as a matter of law, not substantially outweighed by its potential for prejudice, as a result of the purported late disclosure or otherwise. Reliance on the so-called “discovery order” cannot withstand even minimal scrutiny, for there was no formal discovery order.[8] In any event, Dr. Steedman was disclosed to the State, as was the general substance of his testimony.

Despite the fact that the Court found the error harmless in this case, this language shows the advances that courts have made in accepting testimony regarding brain science and the impact it has on sentencing issues. It was harmless error because, although some of Steedman's testimony regarding the abnormality was excluded, there was already testimony admitted about the Spect scan, the abnormality, and Mercer's cognitive defects.

The Court upheld the conviction and death sentence, holding that the trial court did not abuse its discretion in excluding a juror as not death-qualified, in excluding testimony of Mercer's co-defendant's lawyer, in preventing Dr. Steedman from offering expert psychiatric testimony, in denying a post-trial motion for additional funds to test the co-defendant's gloves for gun shot residue, or in denying a post-trial motion for a new trial based on after-discovered evidence that the co-defendant had confessed to a cell mate that he had committed the murder and not Mercer.

We use Defender Data for case management in our office, and it is nearly perfect for a criminal defense practice. It does everything that I need, except for time-keeping. Because it was designed for use in public defender offices (and I think they have now expanded to prosecutors as well), it does not have a time-keeping function.

I've been looking around for simple web-based time keeping software to supplement defender data, and haven't really seen anything that looks like it would work. Although I usually charge flat fees and not hourly rates, I keep track of time in every case for internal purposes. I don't need billing software, or anything other than a simple means to record time and attribute it to the file I am working on. If anyone reading has any cost-effective suggestions I'd love to hear them.

Update:

Defender Data does have a time-keeping function, I just haven't updated the software in a few years. Consider this a glowing endorsement of Defender Data's case management software, which is now perfect (as opposed to "nearly perfect") for the office that focuses on criminal defense.

South Carolina recently passed a law which allows law enforcement to collect DNA samples from persons who have been arrested for felonies and some misdemeanors, regardless of whether they are convicted or not. This is a growing trend, mirrored by the federal government and many other states. Recently, in a hopeful reverse of this trend, the European Court of Human Rights held that DNA samples taken from innocent persons could not be held in a database for government use.

An article yesterday in the LA Times highlights the dangers of ever-expanding DNA databases and the fact that mistakes are made. These mistakes will become more and more common as the size of the database increases exponentially, leading to more and more persons accused of crimes they did not commit.

In 2004, a New Jersey prosecutor announced that DNA had solved the mystery of who killed Jane Durrua, an eighth-grader who was raped, beaten and strangled 36 years earlier.

"Through DNA, we put a face to the killer of Jane Durrua, and that face belongs to Jerry Bellamy," prosecutor John Kaye said.

The killer, however, turned out to be someone else.

Two years after Bellamy's arrest, investigators discovered that evidence from the murder scene had been contaminated by DNA from Bellamy, whose genetic sample was being tested at the same lab in an unrelated case. He was freed. Another man ultimately was arrested in the killing but died before trial.

DNA has proved itself by far the most effective and reliable forensic science. Over the last two decades, it has solved crimes once thought unsolvable, brought elusive murderers and rapists to justice years after their misdeeds and exonerated the innocent. In courtrooms and in the popular imagination, it is often seen as unassailable.

The FBI's national database currently contains 6.4 million profiles, and it is predicted that it will add 1.3 million each year. Cross-contamination is the leading source of error in DNA analysis, and has led to the wrong persons being accused.

I'm not disputing that the evolving science of DNA analysis is incredibly useful and can be undeniably accurate in some instances, my issue is with the creeping growth of the collection of DNA for inclusion in databases. We have progressed from taking DNA samples from convicted felons who serve time in prison, to taking DNA samples from convicted felons serving probationary sentences, to taking DNA samples upon a person's arrest. I have no doubt that ultimately, they would like to have a DNA sample from every living person in the country, and we are getting there one small step at a time.

We need to realize that DNA analysis is not a perfect science, that errors do result in wrongful accusations and even wrongful convictions, and that the larger the databases grow, the greater the possibility of errors. The difference is going to be that mine, yours, and our legislators' DNA samples are going to be in the mix at some point, not just those "other people" who have been convicted of crimes.

Could this be the future of interrogation techniques/ lie detector tests? You don't want to talk? Not a problem, we can just get a print out of what is on your mind.

The scientists were able to reconstruct various images viewed by a person by analyzing changes in their cerebral blood flow. Using a functional magnetic resonance imaging (fMRI) machine, the researchers first mapped the blood flow changes that occurred in the cerebral visual cortex as subjects viewed various images held in front of their eyes. Subjects were shown 400 random 10 x 10 pixel black-and-white images for a period of 12 seconds each. While the fMRI machine monitored the changes in brain activity, a computer crunched the data and learned to associate the various changes in brain activity with the different image designs.

Then, when the test subjects were shown a completely new set of images, such as the letters N-E-U-R-O-N, the system was able to reconstruct and display what the test subjects were viewing based solely on their brain activity.