Prosecutor's Undercover Facebook Chats Deemed Unethical

Using a fake Facebook identity to talk to alibi witnesses is unethical behavior for a prosecutor.

 

Disciplinary Council v. Brockler, 2016 BL 66525, Ohio, No. 2015-0280, 2/25/16

     The Ohio Supreme Court ruled that no matter the intentions of a prosecutor, there is no public policy exception for the Ohio prosecutor who used fake Facebook accounts to speak with alibi witnesses. The Ohio Supreme Court ruled that the fake Facebook account violated Ohio Rule of Professional Conduct 8.4(c) dishonesty, fraud, deceit, or misrepresentation. The court refused to recognize a public policy exception that would permit deceptive prosecutorial investigative tactics.

      This ruling is similar to the 2002 case in Colorado where a prosecutor was suspended for pretending to be a public defender to talk a suspect into giving himself up. See, In the Matter of Mark C. Pautler.

http://www.bloomberglaw.com/public/desktop/document/Disciplinary_Counsel_v_Brockler_2016Ohio657_Ohio_Feb_25_2015_Cour?1457969598

Confrontation Rights Violated By A Letter From Beyond The Grave

The Sixth Amendment right to confront witnesses was violated by showing the jury a letter from the victim written two weeks before her death predicting that her husband would kill her.

 

Jensen v. Clements, 2015 BL 289651, 7th Cir., No. 14-1380, 9/8/15

    The U.S. Court of Appeals for the 7th Circuit said that it was not a harmless error because "[n]o other piece of evidence had the emotional and dramatic impact as did this 'letter from the grave."

    The Wisconsin Supreme Court had originally ruled that the letter was admissible (overturning the trial court's decision not to allow it), holding that it was admitted under the doctrine of "forfeiture by wrongdoing." That doctrine allows testimonial evidence to be allowed from an absent witness if the state can show by a preponderance of the evidence that the accused caused the witness's absence.

    The U.S. Supreme Court, while this case was on appeal, clarified the "forfeiture by wrongdoing" doctrine in the case of Giles v. California, 554 U.S. 353 (2008). They indicated that the "forfeiture by wrongdoing exception can only be invoked if there is proof that the defendant caused the declarant's unavailability with the intent of silencing the witness.

    The Wisconsin Supreme Court had ruled that because the poisoning - if any - was to kill the wife, not keep her from testifying, the "forfeiture by wrongdoing" exception did not apply. It also, however, held that the confrontation clause violation was harmless.

    The federal district court found, on habeas review, that the state court's application of the harmless-error doctrine was unreasonable. This subjected it to review under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2254(d)(1).
   
    The Seventh Circuit agreed, and voided the conviction, and invoked the recent Supreme Court decision in Davis v. Ayala, 2015 BL 193928 (U.S. June 18, 2015). This held that a state court's rejection of a claim of federal constitutional error on the ground that any error that occurred was harmless qualifies as a reviewable adjudication on the merits for AEDPA reasons.

http://www.bloomberglaw.com/public/document/Jensen_v_Clements_No_141380_2015_BL_289651_7th_Cir_Sept_08_2015_C

Other Evidence Used to Determine Extent of Bruton Error

A state court must look beyond the four corners of a nontestifying co-defendant's redacted confession when evaluating the merits of a confrontation clause claim.

 

Washington v. Sec'y Pa. Dep't of Corr., 2015 BL 282414, 3d Cir., No. 12-2883, 9/1/15

    The Bruton rule prohibits prosecutors from presenting a nontestifying co-defendant's confession to the jury when that confession implicates the defendant. These confessions are sometimes allowed, if references to the defendant are eliminated. (Richardson v. Marsh, 481 U.S. 200 (1987). However, in Gray v. Maryland, 523 U.S. 185 (1998), the court indicated that merely replacing the references to the defendant with the word "deleted" or a blank space set off by commas was not enough to keep a confession from facially incriminating the defendant, and rendering limiting jury instructions moot.

    In this case the prosecution replaced references to the defendant with phrases such as "someone I know," "the other guy," "the driver," the guy who went into the store," and "the shooter." The Third Circuit held that this did not cure the confrontation problem because an accomplice who had already testified had identified the defendant as the driver, making it simple for the jury to connect the dots in the redacted confession.

    The state court in this case, ruled the Third Circuit, erroneously used an overly strict interpretation of the Bruton/Richardson/Gray cases and looked only within the four corners of the confession. As a result of the error, the state court found no confrontation problem because there was no direct implication of the defendant.

    The Third Circuit ruled that this interpretation violated the clearly established rules set by the U.S. Supreme Court "and would permit the admission of many facially incriminating confessions."

http://www2.bloomberglaw.com/public/desktop/document/Washington_v_Secy_Pa_Dept_of_Corr_No_122883_2015_BL_282414_3d_Cir

Accused Murderers Not Allowed Access Victim's Social Media Info

Prior to trial two accused murderers will not be allowed to access the social media info of the victim and a witness.

 

Facebook Inc. v. Superior Court of S.D. City & Cty., 2015 BL 289675, Cal. Ct. App., No. A144315, 9/8/15

    The court quashed subpoenas from the accused that sought the victim and witness's subscriber information from Facebook Inc., Instagram LLC, and Twitter Inc. The social media companies' motions to quash were initially denied by the trial court. The companies petitioned for a write of mandate in the appellate court, and argued that the trial court abused its discretion.

    Though there are certain exceptions to The Stored Communications Act-which prohibits subscriber information disclosure-there is not a mechanism for criminal defendants to gain access to private communication content.

    The court was not convinced that the defendants' constitutional rights to present a complete defense, to cross-examine witnesses, and to have a fair trial, trumped the rights of privacy that the account holders have under the SCA. The court indicated that the Sixth Amendment right to confrontation and cross-examination does not guarantee pretrial access to otherwise privileged or confidential information.

    The court indicated that the level of sensitivity of the digital information that can be considered in legal proceedings is high. The court was reluctant, and indicated that many other judges are as well, to allow for a broad "everything under the sun" discovery when it comes to electronically stored information of this sort.

     For criminal situations, the SCA only allows for content disclosure to a government agency or entity pursuant to a warrant or by an administrative subpoena or a court order. The government agency is required to give specific facts showing there are reasonable grounds to believe the contents of the communication, the communication here being social media, is relevant to an ongoing criminal investigation.

     This decision is only related to pretrial discovery. The court said that "[n]othing in this opinion would preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash subpoenas), where the trial court would be far better equipped to balance the Defendants' need for effective cross-examination and the policies the SCA is intended to serve."

http://www2.bloomberglaw.com/public/desktop/document/Facebook_Inc_v_Superior_Court_of_SF_City__Cty_No_A144315_2015_BL_