I am not a lawyer,
but have been accused of being pretty good for never having taken a Bar Exam.
As a Private Investigator, I did a lot of criminal defense investigative work.
Rarely, I even assisted in the representation of an innocent defendant. Most
were guilty, but most were also severely overcharged by the prosecutor, so the
trick was to get leverage to get the prosecution to reduce the charges
consistent with what the defendant actually did. One of the ways you could
prove a client didn't do it, in those rare cases, was providing him with an
alibi.
Those of you living
under rocks should know that an alibi is based on the concept that a person
cannot be in two places at once. If you can prove you were somewhere else you
are pretty much not guilty, at least in theory. I had a case that a guy could
prove he was 600 miles away and a jury still convicted him, just sayin'.
We now know that the
United States Government, The NSA, has data that can track cell phones and
determine where they were at any given point in time. Using triangulation of
cell towers the cell phone "checks in" or "registers" with,
the location can be determined. They can also apparently track the cell phones
through the Wi-Fi hotspots the phone registers on. Some of these tracks can
give you a location within a hundred feet or so. If you are really interested,
check out the following article at the Washington Post.
You see where I am
going with this, right? All you defense attorneys, read further or not if you
have already figured this out.
John N'erduwell is
charged with a murder that occurred in a specific location on a specific date
at a specific time. He tells his criminal defense attorney, Lawyer J. Noble
Daggett, Esq., that he wasn't there, he didn't do it and he is not guilty by
virtue of his alibi. Lawyer Daggett asks all the necessary questions: Where
were you? What were you doing? Who were you with? If there are witnesses to the
event and they can testify he was at Joe's Bar and Grill when the victim was
killed elsewhere, N’erduwell stands a chance. However, rarely are the witnesses
Priests, Nuns, Eagle Scouts or otherwise reputable people.
Unfortunately, N’erduwell
hangs out with the kind of people your mother warned you about. They are
convicted felons and drug dealers. There is also his mother (who does not
believe her son would ever do anything like this and would lie to save him -the
prosecutor's closing argument) and his baby-momma (ditto mom). These are generally not
credible witnesses, but now, there is an even better way and it will serve
multiple purposes.
Lawyer Daggett
subpoenas the NSA for the tracking data on N’erduwell's cell phone. He argues,
as he will probably have to, that N’erduwell is entitled to this material
because it is exculpatory (proves he is not guilty) and, under the law, N’erduwell
is entitled and has a legal Right to this material. I think Lawyer Daggett can
argue that if this material is not provided, the prosecution must dismiss the
charges against N’erduwell. Can't convict a man if the government has
information likely to prove the defendant not guilty and refuse to disclose it,
right? In fact, there are Court Decisions that require it, Brady vs. Maryland being the primary case. When I was a cop they
taught me the following, directly out of the police academy training manual:
Duty to Disclose: The landmark
decision of Brady v Maryland (1963) places an affirmative constitutional
duty on a prosecutor to disclose exculpatory evidence to a defendant. This duty
has been extended to police agencies through case law, requiring law
enforcement agencies to notify the prosecutor of any potential exculpatory
information.
Exculpatory
Evidence/Brady Material: Evidence in the government’s possession that is favorable
to the accused and that is material to either guilt or punishment, including
evidence that may impact the credibility of a witness.
So Lawyer Daggett has
a right to get the NSA's material under Brady. It is kinda hard to argue
it is not in the possession of the government if the NSA has it, and you don't
know if it will prove the defendant's innocence if no one has looked at it,
right? Okay, there are several problems I can think of off the top of my head,
but they are not insurmountable.
The information could
be "Classified" as "Top Secret" or something, but if it is
secret, do we possible send an innocent man to prison or execute him without
looking at this information? It is apparently known to the Washington Post and
I know they have it, so is it really a secret? We even know how they get the
information, so intelligence "sources and methods" arguments are
tough to make. Do we take the word of the government, who said they didn't have
it to begin with, or the government who said there are WMD's in Iraq? It will,
no doubt, be exceedingly difficult to get the data, but if Layer Daggett
doesn't get it, it makes for grounds for a very interesting appeal, right? Come
on, all you lawyers...right?
Another downside risk
that must be impressed on N’erduwell is that if the government actually coughs
up the data and it places him at the scene of the crime, it will be another
prosecution nail in his coffin, pardon the pun. If the prosecutor actually
manages to lay hands on the data and it places N’erduwell at the crime scene,
trust me you will see it in Court, I promise, because you will have really,
really pissed off the prosecutor, and the Justice Department, the NSA, the CIA
and a bunch of alphabet soup operations we don't even know about. Hell, you
might even get nebulized back to the 6th grade by MIB.
The prosecutor is
going to argue that the track is not that of N'erduwell, it is merely the track
of the cell phone and there is no guarantee that it is N’erduwell’s. The
argument here is:
1. The phone is in
N’erduwell’s name,
2. Prove N’erduwell paid
the bill each month, debit or credit card or (LOL) with a check,
3. Bring in witnesses
that know N’erduwell ALWAYS has his cell phone on him,
4. Bring in witnesses
that spoke to N’erduwell on the day of the offense.
5. Get his cell phone
records and find out who he spoke to, or use the cell phone call log and
contact list to determine who he spoke to. You can also find out by reverse
tracking the phone numbers, if necessary, or you can ask the NSA…LOL
All of this information
can establish that N'erduwell spoke to people from that number before the murder and
spoke to people from that number after the murder, maybe even during the
murder. By inference, it is probably his cell phone.
Now, Lawyer Daggett
wannabes, if they say you can't have the data, the existence of which has been
published in the Washington Post, you might just have that case that gets you
before the Supremes. You will also have a name for yourself, although possibly
as a nutball and likely a HUGE pain in the A**! You also might have the
practice you always wanted with ginormous retainers. Remember that investigator
that found out Mark Furman used the "N-word on tape after he testified he had
never uttered the word? All he did was answer a phone, get a subpoena and serve
it. His office is now a box seat at a baseball park because he makes so much
money. His attorney team didn't do so bad either. O.J., not so much.
Well, I am just
thinking here, but I would welcome input from all you licensed, Bar-card
carrying lawyer types as to why I am wrong. Any of you lawyers who use the
material, do me a favor and just give me a footnote mention, or send a few
bucks my way....LOL
See you in Court!
© 2013 William A.
Miller
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