NOt guilty by reason of text message - sample armed robbery case from Queens
One of the most interesting things about being a criminal defense lawyer is that you never know what sort of interesting rabbit hole a case may take you down. It is so very easy after some years in this business to begin to see the similarities in cases and to assume that the next case will be just like the last. It is harder, but far more interesting to look for the differences, because in the differences you will find not only new and interesting ideas, but you just might find an unexpected pathway to success.
When my client on this case, who I will call Kevin Jones for purposes of this case review, came to me, he came after he had already been indicted for Robbery in the First Degree. Given that he was indicted, and given that the case was in Queens County, that meant that negotiations were all but over and that he faced the choice of accepting the five year mandatory minimum from the Judge up front, or going to trial and risking up to 25 years.
Kevin came to me insisting that he was utterly innocent of the armed robbery with which he was charged. According to the Government, Kevin approached a teenage boy and his friend at gunpoint on the street, and took the boy's phone after a bit of a scuffle.
Kevin, who had been arrested before for minor marijuana offenses and a DWI, had been identified in a photograph by the complaining witness the day after the robbery. The police department employed a special computer program to present the victim a series of photographs of people who had been arrested before who met certain broad criteria in the description. Kevin's photograph was in the system from one of his prior arrests, and the victim identified Kevin as the person who had robbed him.
On the strength of this, the police visited Kevin one morning a few weeks later. At about 6am, Kevin found himself rousted out of bed by a squad of NYPD who were quite insistent on arresting him. The next thing he knew, Kevin was in the Precinct and he was put in a lineup. Although of course, Kevin couldn't see through the one way glass, what was happening was that the victim was on the other side viewing the lineup. The victim identified Kevin once again in the lineup. The friend of the victim, who was with the victim just the same, was unable to make an identification.
Kevin is not informed of exactly what happens and is simply arrested for Robbery in the First Degree on the strength of the one positive identification in the lineup. The fact that the second witness was unable to make an identification did not trouble the police sufficiently to cause them to reconsider bringing the case.
Certainly Kevin did not ever admit to participating in the robbery. In fact he absolutely denied it from the moment he was eventually made aware of the charges.
Somehow nothing of note had happened in the case for a few months and Kevin ended up indicted and in my office.
Within a few minutes of getting the story of his case out, I asked Kevin whether he had a cell phone that he carries with him all the time. He said that he did. I then asked him whether any efforts had been made up to this point to use his cell phone to get an idea regarding his whereabouts on this robbery that happened weeks before Kevin got arrested. (There was a significant lag time between Kevin being identified in the photograph to the police finding Kevin in his house.)
And so we found our first rabbit hole to explore. Cell phone geolocation is a fascinating business. We got in touch with an expert who guided us through the process of subpoenaing the correct information from the cell phone carrier. When we got the information, we presented it to the expert for review.
In the movies, the expert would then call me back with a clear map proving that the client could not have been anywhere near the location of the crime. Life rarely works so simply. The results indicated that the cell phone was in the general vicinity of the crime in a very broad sense, but this was not terribly significant one way or another because Kevin lived in the general area.
So all of this effort and expense that had gone into trying to pinpoint Kevin's location seemed to be for naught.
But there were also text messages. Kevin also had a series of text messages to an ex girlfriend that included a few messages from virtually the exact time that the robbery occurred.
Now, if you noticed from above that I mentioned that Kevin' cell phone was off or out of power for a time, you might be wondering how he could be sending text messages. Well it turned out that Kevin used iMessage and that iMessage follows him to whatever device he is using. He can send and receive messages through iMessage whether he is using his cell phone or computer or even iPad.
The critical message came at nearly exactly the reported time of the robbery. It was from Kevin's ex girlfriend. It read, "WYD" [short for What are You Doing?]. Kevin responded, "Watching the game." [basketball playoffs were on that night]. We believe that at this point Kevin was at home watching television while using his computer to text through iMessage.
We had a forensic analysis performed on the phone and the computer that indicated that neither had been tampered with to create the illusion of this text message or the time at which it was sent. Another rabbit hole, but an interesting one. We presented this evidence to the Government, making the items available to them for their own analysis, and they came to the same conclusion -- nothing was not tampered with.
This meant that the messages were sent and they were sent when they indicated (at the time that the robbery was occurring).
Although the Government did consider the possibility of dismissing the case based on this evidence, they chose to insist that the case be tried. The position of the District Attorney's Office was that they had a complaining witness who was confident in his identification and they were not going to second guess that.
The text messages of course COULD have been sent between Kevin's girlfriend and a third party whose job it was to create this exculpatory text message. Therefore, left with this theoretical hole in the defense, the District Attorney's Office decided to persist in the prosecution.
Of course there was virtually no evidence to suggest that there was some third party accomplice. Further, the trouble to mastermind a false alibi in this way required a level of sophistication and forethought that was simply outlandish to think was going to happen in an opportunistic crime like a street robbery. Such machinations are worthy of an Ocean's 11 type heist involving a millions of dollars worth of diamonds, but don't seem terribly likely as the backdrop to a spontaneous street level robbery of a cell phone.
Thus, we went to trial and the centerpiece of our defense was naturally the text message thread discussed above. I did not envy the prosecutor having to try to make a very difficult case, but still was as concerned as ever before the verdict. I learned a long time ago that there is no such thing as a "gimmie" in this business.
But in the end the verdict was "not guilty" and that is the important thing.