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Judge Orders Commonwealth to Turn Over Electronic Communications Between Police in Worcester Murder Case

smart-phone-icon-1236402-139x300In a recent article in the Worcester Telegram, a Superior Court judge ordered the Commonwealth to turn over certain discovery to the defense attorney in a murder case – namely all electronic communications between state police troopers involved in investigating the case.

The defendant is charged with first-degree murder in the stabbing death of a 23 year old man. The Commonwealth claims that the defendant and victim were involved in a drug deal gone bad in Gardner, MA. The defendant is also charged with armed assault with intent to murder and aggravated assault and battery with a dangerous weapon (knife), in relation to the stabbing of a second victim, and is charged with assaulting a third person with a knife. The defendant pled not guilty and, according to his lawyer, he was possibly the victim of an armed robbery and has a strong self-defense claim.

On the day of the Superior Court arraignment, the judge ordered the Commonwealth to produce the discovery in question: the text messages and emails between law enforcement agents involved in investigating the case. The judge told the Commonwealth that if problems arose in obtaining the discovery, the prosecution could request a further hearing on the issue. After the Commonwealth provided the defense attorney with some of the electronic communications, the Commonwealth asked the court for relief from the judge’s order, arguing that “additional discovery of this material constitute[d] a significant burden with no corresponding showing of relevance and materiality.”

The Commonwealth relied on an affidavit written by a state police sergeant which stated that at the time of the investigation, the sergeant and other state police detectives assigned to investigate the case were using Apple iPhone 5 cellphones. These phones were reportedly equipped with multiple applications used on a daily basis, including an email exchange server that runs on an Outlook platform. The affidavit stated that the phones are equipped with encryption that requires detectives to enter a pass code and then use a fingerprint access feature. The affidavit went on to say that the state police had made several attempts to comply with the court’s discovery but were unsuccessful in accessing the data in their phones. The affidavit specified that to access the data, the police officers would have to disable and remove their email exchange service from the phone. According to the affidavit, this is a significant undertaking requiring the phone to be out of service for at least several hours. The affidavit also indicated that in trying to re-establish the email in the phone after the information was extracted, valuable information stored in the phone might be lost. The affidavit stated that it would be a significant burden on the investigative resources of the state police and would potentially require outside consultation and/or software that the state police do not currently use. The affidavit explicitly stated that emails could be preserved, as they do not exist solely on the phone, but that text messages “are the difficulty,” as extraction would require someone to scroll through the phone and this would be an extremely tedious process.

The judge, however, was not sympathetic to the plight of the state police and re-affirmed her earlier order. She stated that the defense attorney had already received some of the text messages and that the content of some of those messages indicated that they related to the investigation itself, including reference to potential witnesses and police interactions with them. Other messages that had already been provided indicated that several witnesses were extremely intoxicated at the scene. The judge stated that some of this information was potentially exculpatory in nature, and that due process requires prosecutors to make timely disclosure to a defendant of all exculpatory material. The judge also stated that “the fact that the police and the prosecutor’s office have expanded their use of technology, and now use cell phones and email to share information in an investigation, does not relieve the Commonwealth of the duty to provide this information to the defendant.” The judge went on to state that “if the Commonwealth is going to provide police agencies with cell phones, it is advisable that both agencies determine how to preserve, copy and provide such communications to the Court and to defendants in future cases.” The judge described the information sought by the defense as “the equivalent of handwritten police notes.” Prosecutors have been ordered to turn over all of the communications requested by the defense attorney by early January.

Obtaining all of the discovery that a defendant is entitled to in a case – particularly where it is exculpatory and potentially undermines the Commonwealth’s allegations – is one of the most important aspects of criminal litigation. Many cases have been successfully defended based on information provided by the Commonwealth during discovery, or investigation done as a result of information contained in discovery materials. If you or a loved one has been charged with a criminal case, it is of the utmost importance that you, like the defendant here, has an experienced attorney who is willing to do whatever is necessary to ensure that the Commonwealth adheres to all of its discovery obligations. Attorney Daniel Cappetta is such an attorney – he always makes sure that he obtains all of the discovery in each of his cases and does everything in his power to make sure that his clients have the best defense possible. Call him for a free consultation today.

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