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Nov 15 2012

A Call for Some Restraint in Making E-Mail Related Arrests

For the past five to ten years or so, emails have increasingly become the source of a myriad of criminal complaints. Today, I was able to obtain a dismissal of a charge brought against my client after it was established that the complainant had actually sent the offending emails to herself. I decided to write up a detailed explanation of the case for this blog (where I normally do not talk about my own cases) as a cautionary tale for practitioners but also to shed light that too often law enforcement makes quick arrests on these matters without taking the least bit time to investigate the validity of the complaint or the proof of guilt.

My client,(let’s call her “Jill Smith”), a High School Senior from the north shore of Long Island, was arrested ten days or so ago for purportedly sending 277 emails to one of her fellow classmates,(let’s call her “Susie Little”), her former BFF, as they say today. The emails were vicious, full of curses, hate speech and then the last few, containing some threats of violence. The parents of the recipient went to the police and filed a complaint. The detectives went to Jill’s home and promptly charged her with Aggravated Harassment. Jill’s parents, of course, believed their daughter (exemplary student, no prior problems of any kind) when she said she did not do it and tried to convince the police when they were at their home to give them an opportunity to check out the allegations. But the police would provide no information as to where the emails came from or when they were sent. They told the parents “We are sure its her.” So they hauled Jill off in handcuffs and took her in the back of a police car and then eventually (the next morning) brought her to court for arraignment where she was released to the custody of the Probation Department with an order of protection in favor of Susie but which allowed Jill to attend school. In lieu of an immediate suspension, the school district allowed Jill to come back to school but she had to be followed by an adult monitor from the moment she walked into school until she left. She was taken out of classes that she shared with Susie.

Upon reading the complaint, I learned that the first few emails were sent from her school-issued iPad but that the vast bulk of them had been sent from an AOL account – JillSMith@aol.com. Jill told her parents she did not create the account and had no idea who had. The school had confiscated her school issued iPad but she still had her cell phone and her laptop. The day after the arraignment, she and her parents came into my office. I arranged for a forensic IT expert to conference with us as well. As emails and electronically stored documents become more and more a part of criminal and civil litigation all litigators should establish a relationship with a reliable IT forensic group in their area. I use and like a group called D4discovery.com but there are a lot of choices out there. D4 could determine that Jill’s devices were not used to set up the AOL account or issue the emails. Looking at one of the copies of the emails we got at after arraignment, they ran the IP address and found that it was linked to a Verizon FIOS customer in the town next to where Jill and her family lived. The Smiths are also Optimum, not FIOS customers.We agreed the family would reach out to the school to see if they would allow our IT folks to look at the school iPad. That night while on a conference call with Jill’s Mom and AOL, AOL told us that someone was looking at the emails on the account as we speak.” When Jill’s Mom told me that Jill was sitting right next to her with no phone or laptop around, I had her text me a photo of the two of them sitting together. The AOL security rep decided to put a hold on the account and change the password. I later told them we would be subpoenaing all the info about the account at the address he gave for AOL’s legal department. On a side note, I want to add that it took Jill’s Mom over an hour and countless phone calls to get a security person on the phone from AOL to listen to her complaint. AOL’s homepage contains no number or email address to report identity fraud. Ms. Smith persistently tried every option on AOL’s generic switchboard menu until she got through to someone and then let me in on what was going on.

The next day, I got a call from the detective stating “We have a problem. Susie got 50 plus more emails from Jill and they are even worse. They include threats to use one of her father’s guns [he has some hunting rifles kept in a locked gun storage locker] and mocking the fact that while she got arrested, she’s never going to stop until she see’s Susie and her family dead. We need you to bring her in we’re charging her with Felony Aggravated Harassment and Criminal Contempt for violating the Order of Protection.” The detective revealed to me that these latest emails came from a new AOL account – “Jill.Smith@aol.com.” I told him that Jill had no access to any electronic devices since her arraignment and had literally been with her mother all the time since then. I told him about the AOL issue from the night before. He was unpersuaded. When he then told me when the emails began, I let him know that Jill was in my office with her parents when many of the emails were allegedly sent. Finally, with this last piece of information, he agreed to hold off and that he would send an information request to AOL the next day to confirm what we told him and see what he could learn. The next day I got a call from a new detective looking to arrest Jill for a new complaint that came in that morning (it was the original detective’s routine day off). I had to go through the whole story yet again and then new cop had to call old cop at home to confirm of course. He agreed to wait until old cop was back the following day to see what they learned from AOL.

In the meanwhile, the school had refused to allow us access to the iPad (understandable of course but worth the ask) but had agreed to let their IT people look at it. Within minutes through a quick review, they established that someone else and not Jill had sent the emails. They dug a little further into their system and conclusively established that Susie had in fact set up the whole thing herself. The principal called her and her parents into school where she promptly confessed to orchestrating the whole shooting match. The principal had her parents call Jill’s Mom to apologize to her and her daughter. The principal met with the police and gave them all their evidence. When the detectives went to Susie’s home to arrest her, they found that the parents had her admitted to a psych ER for a week-long in-patient evaluation. They await her discharge to execute the arrest.

As lengthy as this story is, I have left out many details about what Jill and her parents had to endure and go through during this process. The stress, the pressure, the sleeplessness, the self-doubt, the nasty phone calls from Susie’s parents, the list could go on for pages. What could have happened had the school district and her parents not been so proactive? What if those latest emails had not been sent when she was in my office with me? New charges, new detentions, new orders of protection.

The police could have avoided even the initial arrest with some good old fashioned leg work. (Does any criminal defense lawyer out there remember when the police actually conducted an investigation before they arrested someone?) A simple trip to the school to check out the iPad; a subpoena or info request to AOL; or an examination of Jill’s electronic devices all would have led to the same conclusion – that Jill was being set up. But with “Cyberbullying” being one of the “crimes of the moment” or the “delicto de jour” as I like to say the police prefer to “shoot first, ask questions never.” All they had was that emails were sent from an AOL account bearing my client’s name. It did not matter to them that anyone can establish an AOL account under any name not previously used. They never explained to me or anyone else why they told Jill’s parents they “were sure” it was Jill when they came to her house to arrest her. Incidentally, I also highly doubt we will ever get an explanation for why the statement notice at arraignment declared that Jill stated in the back of the police car on her way to the hoosegaw “Please don’t tell my Mom. I’ll stop.” She had vehemently denied making that statement when I interviewed her in the pens before arraignment. (Of course the statement never made sense, since she was arrested at her home in front of her mother who obviously knew all about it but then the official arresting officer was in the car and did not know her Mom was inside of course. Maybe he was “just trying to help out” when the DA writing the complaint up informed him that Jill had not confessed after an hour of questioning. I intend to follow up with the DA’s office and AOL about having some basic protocols put into place when these issues come up to allow law enforcement to take a few simple steps to determine if there is any exculpatory or inculpatory evidence -let’s called it Electronic DNA- to add to the equation instead of relying on the mere fact that an email was sent from an account bearing the targeted defendant’s name.

It seems to be the least we can ask to make sure it becomes a little harder to have someone subjected to this nightmare.

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