Jurors’ Online Activity Poses Challenges for Bench

Noeleen G. Walder, New York Law Journal, March 05, 2010 http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202445530564&src=EMC-Email&et=editorial&bu=LTN&pt=Law%20Technology%20News&cn=20100305&kw=Jurors%27%20Online%20Activity%20Poses%20Challenges%20for%20Bench

Seriously, is this a big surprise to anyone? For hundreds of years we’ve lived among the fiction that jurors do what we tell them to do - they don’t talk to each other or their families or friends about the case they’re assigned to. They don’t do any independent research. Oh puhleeze. Humans are humans. They do what they do. Does it prejudice them? Yes, of course it does. But, does it make the process less credible? Well, I don’t know. I’d say that having things out in the open is better than having them behind closed doors  and pretending it’s not happening. At least we can see what’s going on. Perhaps I shock the sensibilities of my colleagues by being so straightforward. Oh well. Grow up. It’s the 21st century and this stuff not only happens, but it’s just better evidence of what’s been happening all along. What are we going to do about it? Accommodate it. You cannot stop it. We don’t want to. It’s part of the system. Always has been. Perhaps  we should provide a reasonable accommodation, such as a secure and private communications channel for jurors. That would solve the problem. That is, if there really is a problem to solve. What do you say?

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The New Mexico Court of Appeals recently upheld a trial court that
ordered production of a police officer’s personal cell phone records.
Although the decision is very fact specific and the discovery order was
narrowly drafted, it provides some insight into where we’re headed with
discovery of ESI.

State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09)

Mary
Ortiz was arrested for DUI after an officer pulled him over. Ortiz
asserted that the officer did not have reasonable suspicion to pull him
over and sought evidence to support the claim by requesting all
dispatch records, recordings and records of communications related to
the stop. The court issued an order compelling discovery of the
arresting officer’s personal cell phone records for six minutes time
coinciding with sighting the defendant, pulling him over and making the
arrest. The state refused to produce the records, arguing the records
were not relevant and that they were the private communications of the
officer. The court wasn’t persuaded and ordered production. Despite the
order, the state did not produce the records and argued that they could
not compel the officer to produce the records. The state moved for a
writ of mandamus from the state’s supreme court. It was denied. The
trial court granted the defendant’s motion to dismiss the charges with
prejudice, citing the state’s failure to produce the requested evidence
as "in bad faith and arguably intentionally preventing the trial from
moving forward."

The Court of Appeals upheld the trial
court’s dismissal with prejudice. It’s reasoning is interesting and
potentially far-reaching in its effect. The court reasoned that the
officer and whatever he used, did or said (basically) was property of
the state because he was on duty at the time. His communications and
records of his communications- whether they were over the police
department owned and sanctioned communications system or his personal
cell phone- were relevant and therefore, under the state’s rules,
discoverable by the defendant.

What does that mean? Maybe
nothing. At least until it goes to the New Mexico Supreme Court and the
issue comes up elsewhere. What to do in the meantime??? Well, smart
attorneys request all the relevant communications and records anyway,
and they follow up on it. Here, there were significant sanctions for
the prosecution’s non-compliance. That doesn’t happen a lot in criminal
cases, and most places don’t have discovery in criminal cases. However,
the defense can still request the records in criminal cases. In civil
cases, there is no doubt that discovery includes the records if they’re
relevant. 

On the government and civil defense side, police
departments and corporations have been telling people for years not to
use their personal stuff while working. Does that stop them? Of course
not. Has anybody stopped using their personal cell phone on the job?
Has anyone stopped using their work cell phone for personal calls? Not
until they’re forced to hand over their cell phones that have all sorts
of inculpatory emails, contacts and call records that would probably
get them disciplined at work or fired and/or divorced or at least in
hot water at home. . . . and that could be in the offing fairly soon. .
. .

(see "Are a Cop’s Personal Cell Phone Records Fair Game
in Court?" by Charles Remsburg, particularly his discussion relating to
officer safety, for more on the subject. (
http://www.policeone.com/legal/articles/1966734-Are-a-cops-personal-cell-phone-records-fair-game-in-court/
)

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The New Mexico Court of Appeals recently upheld a trial court that ordered production of a police officer’s personal cell phone records. Although the decision is very fact specific and the discovery order was narrowly drafted, it provides some insight into where we’re headed with discovery of ESI.

State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09)

Mary Ortiz was arrested for DUI after an officer pulled him over. Ortiz asserted that the officer did not have reasonable suspicion to pull him over and sought evidence to support the claim by requesting all dispatch records, recordings and records of communications related to the stop. The court issued an order compelling discovery of the arresting officer’s personal cell phone records for six minutes time coinciding with sighting the defendant, pulling him over and making the arrest. The state refused to produce the records, arguing the records were not relevant and that they were the private communications of the officer. The court wasn’t persuaded and ordered production. Despite the order, the state did not produce the records and argued that they could not compel the officer to produce the records. The state moved for a writ of mandamus from the state’s supreme court. It was denied. The trial court granted the defendant’s motion to dismiss the charges with prejudice, citing the state’s failure to produce the requested evidence as "in bad faith and arguably intentionally preventing the trial from moving forward."

The Court of Appeals upheld the trial court’s dismissal with prejudice. It’s reasoning is interesting and potentially far-reaching in its effect. The court reasoned that the officer and whatever he used, did or said (basically) was property of the state because he was on duty at the time. His communications and records of his communications- whether they were over the police department owned and sanctioned communications system or his personal cell phone- were relevant and therefore, under the state’s rules, discoverable by the defendant.

What does that mean? Maybe nothing. At least until it goes to the New Mexico Supreme Court and the issue comes up elsewhere. What to do in the meantime??? Well, smart attorneys request all the relevant communications and records anyway, and they follow up on it. Here, there were significant sanctions for the prosecution’s non-compliance. That doesn’t happen a lot in criminal cases, and most places don’t have discovery in criminal cases. However, the defense can still request the records in criminal cases. In civil cases, there is no doubt that discovery includes the records if they’re relevant. 

On the government and civil defense side, police departments and corporations have been telling people for years not to use their personal stuff while working. Does that stop them? Of course not. Has anybody stopped using their personal cell phone on the job? Has anyone stopped using their work cell phone for personal calls? Not until they’re forced to hand over their cell phones that have all sorts of inculpatory emails, contacts and call records that would probably get them disciplined at work or fired and/or divorced or at least in hot water at home. . . . and that could be in the offing fairly soon. . . .

(see "Are a Cop’s Personal Cell Phone Records Fair Game in Court?" by Charles Remsburg, particularly his discussion relating to officer safety, for more on the subject. ( http://www.policeone.com/legal/articles/1966734-Are-a-cops-personal-cell-phone-records-fair-game-in-court/ )

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Workplace Responses to Child Exploitation on the Internet- See

http://technology.findlaw.com/articles/00006/010142.html

Andrew Zangrilli provides direction from the US DOJ regarding workplace tips for deterring child exploitation via the Internet:

1. Adopting and enforcing computer use policies.
   Corporate use policies often contain broad prohibitions on pornography and sending photo attachments by email. In organizations that regularly use images for legitimate purposes, such a blanket prohibition may not be practical. Companies need to balance workplace effectiveness with their community responsibility response.
   

2. computer usage.
   Many employers have existing ways to audit computer usage. The coalition’s expected technical solutions include scanning email and email attachments for known images of child pornography. Such system would include some form of tagging that would be updated on a regular basis. It seems likely that workplace system administrators could install the new updates and scan their mail server’s incoming and outgoing communications for offending materials.
   

3. web usage.
   Employers routinely engage in web-filtering practices that restrict the sites employees may visit. For example, some workplaces block access to free web email accounts so that employees cannot circumvent the company’s official email systems.

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See: Photo Tech Complicates Child-Porn Cases
By ANICK JESDANUN AP Internet Writer at http://news.technology.findlaw.com/ap/high_tech/1700/02-25-2008/20080225055000_03.html

2/25/08

“Although challenges to digital photos come in all types of criminal and civil cases, they are especially pronounced in child-pornography cases because of a 2002 U.S. Supreme Court decision striking down a ban on computer-generated child pornography. Defense attorneys are trying to use the ruling to introduce reasonable doubt in jurors’ minds about the images’ authenticity.

…

“Every good trial lawyer is always going to subject every part of his adversary’s exhibits to that sort of scrutiny,” Guiberson said.

…

“How much proof a prosecutor needs in child-pornography cases can vary from region to region and even from judge to judge. Recent federal appellate rulings have eased the burden on prosecutors, essentially saying that in lieu of definitive evidence, they can let jurors make up their own minds about whether an image is real or computer-generated.”

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Salient sections of SB  37- AN ACT CONCERNING COMPUTER CRIMES AGAINST CHILDREN.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 53a-90a of the 2008 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2008):

(a) A person is guilty of enticing a minor when such person (1) uses an interactive computer service to knowingly persuade, induce, entice or coerce any person under sixteen years of age to engage in prostitution or sexual activity for which the actor may be charged with a criminal offense, or (2) uses an interactive computer service to knowingly persuade, induce, entice or coerce any person under sixteen years of age to display their intimate parts either through the use of a webcam, still image or other available technology or to engage in a sexual act through the Internet or by telephone. For purposes of this section, "interactive computer service" means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

(b)(1)Except as provided in subdivision (2) of this subsection, enticing a minor is a class D felony for a first offense, a class C felony for a second offense and a class B felony for any subsequent offense.

(2)Enticing a minor is a class B felony if the victim of the offense is under thirteen years of age and any person found guilty of such class B felony shall, for a first offense, be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court and, for any subsequent offense, be sentenced to a term of imprisonment of which ten years of the sentence imposed may not be suspended or reduced by the court.

Sec. 2. (NEW) (Effective October 1, 2008) (a) A person is guilty of viewing child pornography when such person knowingly views fifty or more images of child pornography through the Internet within any forty-eight-hour period.

(b) Viewing child pornography is a class D felony.

SB 37 will make enticing a minor to display his/her intimate parts via the Internet a new crime. Who needs it? That’s really manufacturing child pornography and/or risk of injury to a minor and/or promoting a minor in an obscene performance, isn’t it. Well, maybe the promoting charge is a stretch, but the others aren’t.

The Bill will also create a new crime for viewing child pornography. How, pre-tell, will that be proven. Forensic analysis of one’s eyeballs? Or will there be a presumption that if it’s on your computer, you viewed it? And, what’s the next step, making it a crime to think about child pornography? Making it a crime to think about sex? Making it a crime to think about committing a crime?

Hey, I have young children, and I’ve seen more child pornography in the course of my work than anybody should ever have to see. It’s disgusting and I do firmly believe that every time someone views it, the child is revictimized. However, there are real issues regarding overcriminalization. The feds have gone completely overboard in their efforts to wipe out the scourge of sexuality. When Gonzo-Gonzalez was the AG, the feds went around the bend when it came to enforcement. I hate to see the states do the same thing, because the courts are overwhelmed with child pornography and child exploitation cases.

I question whether the police and prosecution don’t rush to judgment and go forward with less than ‘proof beyond a reasonable doubt’ cases. I also question whether defendants get adequate hearing of their cases and effective defenses. As I have railed about on many occasions, the prosecution enjoys the advantage in these cases because police have special, free training in digital forensics. Few digital forensics experts will even consult to the defense, and those who do rarely are qualified to do so. That equals=not good.

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Worried about metadata? Think you could be sending out email or electronic documents containing metadata?

Quick and effective fix: Save the document as a pdf if it’s a Word or WordPerfect document. That will get rid of all the back and forth comments and changes.

If the document started out as a pdf, copy and paste the final text into a new document and save it as a pdf.

Easy stuff

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The National Law Journal reports that the wikileaks.org site has been enjoined from posting confidential material. A federal judge in California issued the order at the request of a Swiss bank that complained that the website posted its confidential information. The wikileaks website provides a forum to whistleblowers to air their complaints against large corporations, government and other enterprises. See the story at http://www.law.com/jsp/article.jsp?id=1203508153788#

Let’s see, what’s wrong with this picture? Could it be that the court is violating free speech rights? Of course we don’t know some information important to making a fully informed determination, such as the nature of the documents, what makes them confidential (are they trade secrets, or just embarrassing?) and whether or not they are true. Isn’t the usual route in free speech cases to err on the side of speech rather than restraining it? Wouldn’t it have been better advised to wait until the material has been reviewed and a determination made about the content? If it were obscenity (straight-up obscenity, not child pornography, which is a different story), the court wouldn’t shut the site down until the case was adjudicated. What’s so important about information about a bank that would convince the court to grant such an injunction?

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In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007). Real estate litigation in which a discovery order compelled production of two hard drives for forensic examination. The court denied the defendants’ request for a writ of mandamus to set aside a discovery order requiring them to produce office hard drives. The defendants argued that the discovery order was too broad and would result in disclosure of priviliged and confidential information. The court disagreed, reasoning that there were safeguards in place guarding against disclosure of privileged information because the defendant was able to review for privilege prior to production.

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United States v. King, No. 07-11808 (M.D.Ala. Dec. 14, 2007). The defendant in a criminal child pornography case sought to suppress evidence obtained from his hard drive. He argued that the government violated his 4th Amendment right against unreasonable search and seizure when a co-worker searched the defendant’s hard drive in search of music files. The search was facilitated by a common network connection. The court held that data stored on the hard drive of a computer attached to a network is owned by the network administrator and that no search warrant was necessary.

Whoa!!! Hey, is something wrong with this picture? If I plug my laptop into a network, if this case is RIGHT, then the data on my laptop’s hard drive then belongs to the network administrator. Hmmm, so, let’s take this baby out to its logical extensions. First, let’s try a wireless network. Say I go looking for a hot-spot and access a wireless network owned by the local municipality. Does that make the data on my hardrive the property of the town government? This case seems to stand for the principle that it would.

Ok, how about the INTERNET (a network, duh)? So, if this case is right, then isn’t it axiomatic (love that word) that if I’ve got my computer hooked into the Internet, that my network administrator (aka ISP) owns the data on my hard drive?

Granted, there are some small factoids that can be used to distinguish this case from the hypothetical extensions I’ve postulated. The defendant in the case was an employee/contractor utilizing a work network. The question then is, how compelling is the work connection? Is it such a difference that it makes a wireless connection to a network (arguably random or hapenstance) is totally different? Or an Internet connection through an ISP? I guess it remains to be seen.

However, my 2 cents says the court got it wrong in this one. Probably should have reasoned it differently to get to the same result. The reasoning is flawed because it doesn’t hold up when extended.

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Plaintiff Ordered to Produce Hard Drive for Forensic Examination by Defendant

Orrell v. Motorcarparts of America, Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007). The plaintiff in this case sued the defendant for sexual harassment, gender discrimination, hostile work environment and wrongful discharge based on receipt of inappropriate e-mails from co-workers and customers. The defendant alleged that the plaintiff improperly destroyed evidence and did not fully comply with discovery requests. The defendant filed a motion to compel seeking production of the plaintiff’s home and work computers and an order prohibiting further destruction of evidence. The plaintiff objected, arguing that compliance would create an undue burden. 

The court determined that the burden to preserve evidence was not eliminated due to the alleged crashing of the plaintiff’s home computer. The court found the defendant’s requests to be “reasonably calculated to lead to the discovery of admissible evidence”, and ordered the plaintiff to  produce her home computer for forensic examination and ordered the plaintiff to refrain from further destruction of evidence.

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This is taken in part from: http://www.computerforensicsblog.net/computer-forensics

Traits To Look For In Computer Forensics Firms

Computer forensics is a fast-growing investigative science that more people are finding themselves in need of. Whether for criminal or civil cases or to help a company or individual tackle security and data management issues, the experts in this field are finding themselves in high demand. But, how can a person be certain a computer forensic firm is worth hiring?

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Here’s an interesting story about the government seeking to compel disclosure of a password:
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663_pf.html

The trial court ruled that the govt couldn’t compel the defendant to reveal his password to an encrypted file suspected of containing child pornography. I think he got it right. In his ruling, he said, “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court.” He went on to hold that the password stored in the defendant’s mind is testimony in nature and therefore subject to fifth amendment protection. If it were a physical key, it would not be. Orin Kerr, a former federal prosecutor, disagreed with the judges ruling, claiming that the defendant waived his right against self-incrimination when he told a customs agent the laptop was his. That’s a bit far reaching, given the facts and the implications of requiring the defendant to divulge the password. The Electronic Frontier Foundation attorney, of course, supports the magistrate judge’s opinion.

The judge clearly distinguished between physical keys and passwords that are remembered. He said that the contents of one’s mind is testimonial in nature. Hmmmm, then what will be the implications of ‘mind reading’ technology being developed and reported in Newsweek this week? (http://www.newsweek.com/id/91688) If the tool is developed, and it most certainly will be, it would make law enforcement child’s play. Just like in the Power Rangers, one will be able to scan a suspect with a device and determine guilt or innocence in response to a question or two. Will the value of that tool trump the fifth amendment. I’m taking bets now, and I’ve got my ten cents on we’ll allow it, even if we rewrite the Bill of Rights to allow it. Virtually foolproof evidence of guilt??? How would we be able to pass that up, privacy rights notwithstanding.

Let me know what you think– I’d love to hear it (well, you know . . . read it)

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Deadly Ivory Tower is done!

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Examining E-Discovery Chain of Custody

How strong is your weakest security link?

By Christy Burke
Special to Law.com
October 23, 2007http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1193043816651

This article talks about chain of custody, which a lot of folks forget entirely about when it comes to electronic evidence. While the author refers to paper logs, they are pretty much outdated. Labs these days have electronic systems that use bar coding technology to track evidence. It is absolutely necessary to examine the chain, whether it’s a written log or an electronic system, because, as the author correctly points out, it is often overlooked. And, it can be the weakest link in the chain that turns the tide in your case

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Mr. Gagliardi was convicted of one count of attempt to entice a minor into sexual activity under 18 U.S.C. 2422(b). He entered a chat room entitled "I Love Older Men" and conversed with Lorie, a federal informant whose profile described her as a thirteen year-old. Gagliardi initiated sex talk and described in graphic detail what he wanted to do with Lorie. He sought a meeting with her over several conversations. Lorie introduced Gagliardi to a thirteen year-old female friend who happened to be an undercover FBI agent. They arranged a meeting, and Galiardi was arrested. When his car was searched, he had a Viagra pill and condoms. Gagliardi appealed his conviction on a few unsuccessful bases: 1. that due to factual impossibility, he couldn’t have been guilty of an attempt to entice a minor, since neither Lorie nor the UC FBI agent were minors; 2. that the statute is unconstitutionally overbroad and vague; 3. that the prosecution manipulated his sentence, thus improperly usurping separation of powers; 4. that he may have been guilty of conspiracy to attempt to entice a minor, but not attempt; 5. he was entrapped; 6. the government did not prove attempt, and; 7. the chat logs were not properly authenticated.

1. The court saw no merit in Gagliardi’s factual impossibility claim, and rightfully so. It’s pretty well established in the majority of jurisdictions that factual impossibility is not a defense to attempt. If the defendant believes the circumstances to be as they would be to complete the crime, that’s all that is necessary. If that weren’t the law, then undercover stings would be fruitless, and we would have to wait for minors to report attempts- which would rarely or never happen- or completed crimes. In deciding this issue, the 2nd Circuit joined six other circuits: United States v. Hicks, 457 F3d 838 (8th Cir. 2006); United States v. Tykarsky, 446 F3d 458 (3rd Cir. 2006); United States v. Sims, 428 F3d 945 (10th Cir 2005); United States v. Meek, 366 F3d 705 (9th Cir 2004); United States v. Root, 296 F3d 1222 (11th Cir 2002); United States v. Farner, 251 F3d 510 (5th Cir 2001).

2. The court did not find Gagliardi’s argument that the statute is overbroad because it suppresses "fantasy" speech between adults persuasive. TThe vagueness claim failed because the plain dictionary meaning of the words in the statute provide enough clarity and notice of what is considered wrongful conduct.  The overbreadth argument failed because the statute carves out prohibited conduct, not speech, that is unprotected. No protected speech is covered by the enticement statute.

3. Gagliardi’s sentencing manipulation claim failed because the 2nd Cir. doesn’t recognize the doctrine, and even if it did, the government’s conduct didn’t rise to the level of outrageousness required to find sentencing manipulation.

4. Conspiracy- This was a strange argument. Conspiracy, by definition, involves two parties. Gagliardi admitted as much in his brief. The court tried to make sense of it, but determined that attempt was the crime charged, and attempt was the proper crime Gagliardi should have been convicted of.

5. Gagliardi’s entrapment defense failed. The first necessary step in successfully pleading the defense is to prove government inducement by a preponderance of the evidence. At that point, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Assuming that the government induced Gagliardi, the court held that the government proved beyond a reasonable doubt that he was predisposed to commit the crime. After all, he entered the chat room entitled, "I Love Older Men," he sought out Lorie, whose profile described her as a 13 year-old, he and Lorie and the UC FBI agent discussed the ages of the girls and he initiated the sex talk.

6. Gagliardi failed to persuade the court that the government failed to prove attempt beyond a reasonable doubt. The court followed its holding in United States v. Brand, 467 F3d 179 (2nd Cir 2006), which had similar facts. To prove attempt, the government must prove that the defendant possessed the intent to commit the crime and that the defendant took substantial steps toward committing the crime. The government successfully proved Gagliardi’s intent to commit the crime- he entered the chat room, he initiated conversation with Lorie, he offered to pay her to have sex with him, he consistently initiated talk about sex. The court held that the government successfully proved that Gagliardi took substantial steps toward completion of the crime. He drove to meet the girls and he had Viagra and condoms in his possession.

7. Gagliardi argued that because chat logs were copied and pasted and the original logs not produced that they were not properly authenticated. The court held that the standard for authenticating documents is low, and that it was sufficient that a witness testified that the logs represented what the witness said they represented.

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DeLuca’s Fate Hard For Senate To Decide

In What May Best Be Described As An Exclusive Club, The Potential Expulsion Of A Longtime Member Doesn’t Sit Well

By CHRISTOPHER KEATING | Capitol Bureau Chief

October 21, 2007

"

http://www.courant.com/news/custom/topnews/hc-ctsenateclub1021.artoct21,0,2663164.story?coll=hc_tab01_layout

 DeLuca has, thus far, at least publicly, received more sympathy than condemnation in the Senate."

DeLuca doesn’t have MY sympathy. He’s a thug and a gangster and should be kicked out of the Senate for the bum and criminal he is. If a member of my family gets in trouble or beat up, I don’t sell my soul to the mafia. If the Senate doesn’t kick him out Connecticut is in worse trouble than we could have imagined- even with all of our other baggage– Rowland, Giordano, Ganim– to name only a few. It’s absolutely dispicable that DeLuca hasn’t been promptly and soundly shown the door yet.

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State v. Wells, 2007 WL 2769686 (Minn. Ct. App. Sept. 25, 2007).

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