Posts Tagged ‘Law’
Okay, I am on the “war path”; by now this is no secret! But everything we do should have some kind of a benefit to others; so here is my “pearl of wisdom post” for the year. I hope this post benefits those that have betrayed me and tried to damage my business as well as it does anyone else reading.
Of course if you have ever worked hard, sacrificed, and stayed the course to build something, a business, a company, an organization, a savings account, to own a house, or buy a vehicle, or get a college degree, or just whatever you have worked hard and sacrificed for; then you understand the title of this post. One can only own something when they earn the right to own it. Anyone can steal from someone else, but whatever they steal they will only possess, and never own!
Hopefully this post will help Bonni Arnold to understand one key and critical philosophy in life, that nobody has ever taken the time to explain to her; the difference between owning something and possessing something. This is why Bonni Arnold is a THIEF, not just because of her convictions on Case Net, but because nobody ever taught her the difference between owning something and possessing something. Just type in this case number: 01CR169012 on Case Net: and you’ll get a good idea about Bonni Arnold’s philosophy in life
Here is a picture of Bonni Arnold:
Careful with this one! This lady has tried all of her life to game the legal system, and has had some success! However, she ran into a few people that are going to try to put a stop to it, and hopefully will with some work, effort, and a little luck; and I am only one of those people!
Bonni has never tried to earn anything in her life, she has never held a job for over a year, and has been fired from most of the places she has worked! She would rather fake an injury and try to sue someone in court for a living than to work and earn a living! This is one of the many reasons she is so despicable! Right now as I write this Bonni Arnold has filed a Personal Injury Suit in court in which she claims she can not work a regular job due to someone rear ending her. Here is the kicker; she worked a regular job when she was working for me, she worked a regular job in construction doing manual labor, all after she was rear ended! Fortunately the attorney that is representing the poor guy who’s insurance company is being sued by Bonni seems to be one sharp lady, that is not going to let Bonni Arnold get away with gaming the system. The Attorney is Ann Hagan and she has a lot of experience, and is doing everything she can to prevent Bonni Arnold from “gaming the system”; if you recognize Bonni Arnold and you know something that might help Ann Hagan to keep Bonni Arnold from getting over on the system, please click Ann Hagan’s name above where it is linked and give her a call.
So, here is the lesson for Bonni Arnold and anyone else that does not understand that the easy way out is seldom the best way out. Bonni Arnold, you can’t do what I do! You can’t run a company like I can! You may think you can, but you can’t! You didn’t earn it! You don’t understand what it means to sacrifice for something that is bigger than yourself, because you are too selfish to understand that! You believe that stealing from someone gets you the same thing they had, it doesn’t! You can’t have any pride in what you possess, when you steal it. You did not starve, struggle, and work your ass off to own a company like mine! Six months of working for my company does not even entitle you to be anything other than a laborer, much less own a Private Investigation Agency! A REAL Private Investigator takes years and years learning his or her craft, cultivating contacts, and patiently builds a decent agency over years of time, not months! You have never really owned anything, because you have never taken the time to earn anything. Having a sexual affair with Danieal H. Miller for financial loans and job titles in his company does not make you an Investigator, it makes you a whore! Those sexually explicit text messages that you used to brag about that you got on my phone (YEAH, my phone) from Danieal H. Miller, did you really think that I did not get copies of those? Really? You should know me a little better than that. What about those pictures of your bare ass that you up-loaded onto my phone and my SkyDrive account, you don’t think I saved them somewhere else other than SkyDrive? Remember, I called you and told you that you were uploading those pictures to my SkyDrive account? You are not nowhere as bright as you seem to think you are. Whoever gave you the idea that you could file for an order of protection against me to try to extort $3,061.75 from me REALLY advised you poorly! Yeah, I have a copy of that pile of crap attempt to settle letter, look below:
So, you, “Sleazy” Miller and Brad “Crazy” Crowell REALLY thought you could pull that crap off? On me? REALLY? Nobody told you that I don’t scare or intimidate, you have to put me in front of a Judge and let the Judge decide; but you won’t extort money from me using the legal system! And you thought that after the Judge ruled this would be over with? Ohh HELL no! Every LEGAL means at my disposal to rectifying this situation, I am going to use. And I am in this for the long haul. I am going to file lawsuits, complaints to the OCDC, and blog about this for YEARS to come! I just was not the one to try to victimize, and tell your attorney that too! I don’t victimize well!
What would make any of you two DIPSTICK attorneys that tried to help Bonni Arnold with her attempt to extort money from me, want to try to help her extort money from someone like me, anyway? You have to know that as a Private Investigator in Columbia, MO. for over twelve years, I know a few things that people like you really don’t like me knowing. Brad, didn’t I call you and ask you about that Public Defender that you were having an affair with, while you were still married to your wife? Did you think that was a coincidence? You remember, right before you were admitted to Mid-MO. for blowing a hole though your house with a shotgun, from the inside of the house? I know you managed to keep that quiet, but did you think I did not know? What? Danny Miller; Arlie Nole and I are still good friends; you defended him and took care of his legal problems for years, do you really think that I don’t know a few things that you would not want known? What about that Judge you flew to the Mustang Ranch in NV., to get some bond reductions so that Arlie Nole could post bond for some people that were under no-bonds? Bet you never thought that would come back to “bite you in that old, white wrinkly ass”, did you?
You two attorneys HAVE to had known that when this was over with I was going to respond to your efforts, didn’t you? Bonni Arnold was never a threat to me, she was always too stupid to be a threat, but you two “DIRTY, DIPSTICKS” made her a threat by taking up her cause, when you KNEW it was BULLSHIT! Both of you knew you should not have represented her to begin with, not just because it was not allowed due to our previous relationships (and that is why both of you got kicked from this case), but also because you both KNEW it was inappropriate, and unethical for Bonni Arnold to try to use an ex-parte and an application for a Full Order of Protection to try to collect money that she is not even owed! If any reader here ever wants any proof of how inappropriate and unethical it is to try to use an ex-parte temporary order of protection to collect money, refer back to this earlier blog post: A Good Referral To An EXCELLENT Attorney Who Did A Spectacular Job For Me! and read the quoted case law, and if that is not enough think about this; after I got Danieal H. Miller and Brad Crowell “kicked” from the case (Actually My Attorney Gretchen Yancey did this, she is an ASS-KICKER, I can’t say enough good things about her), the only other attorney that Bonni could find to take this case was from Unionville, MO (135 miles away from Columbia, MO.) and went to law school with Danieal H. Miller. She could not find a local attorney or even an attorney in Jefferson City, MO. to touch this pile of crap after the two “dirtiest” attorneys in Columbia, MO. got kicked from it. So, if you ever ask yourself why I am also including you two “Used Car Dealer’s Of An Attorney” in this, it is because you both tried to help Bonni Arnold damage me and my company, Danieal H. Miller because he is an old pervert that knew Bonni Arnold would exchange sex for legal services, and Brad Crowell because Danny Miller had him at a disadvantage due to him having office space with Danny Miller and assisting him on some of his cases. You both knew better, and you both have an entire page on this blog devoted to each of you, and Danny Miller your secretary, Jo and her “unusual accounting practices” are going to get a page too, because she was so happy to try to be a witness against me…. And tell Stephanie I have my ears open for “dirt” on her too. You people had to know there would be a day of reckoning after the crap you tried to pull in court. You just had to know this day would come, right?
Here is a piece of advice for you two DUMMIES! “You don’t piss off the keeper of the secrets by trying to publically humiliate him, you either KILL the keeper of the secrets or you leave him alone”.
Bonni Arnold, I also know that your boyfriend is with you because it is cheaper to be with you than for him to have to pay the child support you took him to court for in 2004. And he may act like he supports you, but ask Webster if this is turning out like he was so confident that it would…..
Just a piece of advice Bonni Arnold; it is not too late for you. Find something you want in life and EARN it, don’t try to steal it! You’ll change your life for the better if you follow that single piece of advice…
Back in August of 2010 I did a series of articles on a young man named David Riley. You can reference these articles easy enough just by going to the tag cloud on the right hand side of the screen and clicking the name “David Riley” or just by clicking this link: David Riley. David Riley is a young man that went to a store one night to buy some beer, after he had already been drinking, he purchased his beer and he walked out to his car with his designated driver. On the way to his car he kicked a bottle across the parking lot, and drew the attention of what he would soon discover would be an undercover Police Officer. David Riley said some things to the Police Officer that were not very nice, and in return the Police Officer drew his firearm and proceeded to beat David Riley senseless, along with a few other Police Officers that responded to the undercover Police Officer’s calls for back up; all in full view of the store video camera. David Riley was then taken to the hospital where he was verbally humiliated by security staff and the Police. David Riley was then taken from the hospital to the jail after he received medical care, and charged with resisting arrest and some other “cover my ass charges” by the Police. David Riley then bonded out of jail, in horrible physical condition from the beating that he had just suffered. From there this incident basically ruined his life. He was coerced by a Prosecutor (actually I’d personally call it blackmailed by a Prosecutor) to plea to his charges and accept a conviction. He suffered some mental health issues, which in turn caused him to lose his auto dealership and his family. All and all, it was a fine years work of ruining a man’s life by the CPD and the Boone County Prosecutor’s Office; so that the CPD could keep it’s butt covered and looking like they’d never do anything improper.
When this incident first occurred, I got the call from the Defense Attorney the next day to start an investigation on this case. I knew where to start, at the scene of the incident. RMRI, Inc. wrote up a Notice To Preserve Documents and served it on the store that this incident took place at; and RMRI, Inc. actually received a copy of the video tape before the CPD did. RMRI, Inc. measured out the place where the incident occurred, how far the undercover Police Officer was from David Riley when the verbal exchange took place. RMRI, Inc. interviewed all of the store clerks that were working that night. RMRI, Inc. also requested any property that was taken from David Riley by the CPD the night of the arrest, on behalf of David Riley. Interesting enough the CPD returned a pocket knife that David Riley was carrying that night. Interesting because the CPD tried to claim that David Riley was trying to rob the undercover Police Officer; wouldn’t they have kept the knife as evidence if this had really occurred? As I conducted this investigation it became apparent to me that David Riley was a victim of Police Brutality. But let’s be fair and forthright here; David Riley was no angel. David Riley had some very serious criminal convictions in his background, be probably used alcohol a little too much. Sometimes he could be disagreeable and hard to deal with. But we should all understand that none of this precludes him from being a victim of Police Brutality. So, I took a special interest in this case. I have always felt very strongly about Police Abuse and Police Brutality issues. I don’t think that any citizen should have to suffer a beating at the hands of the Police, who are supposed to be protecting and serving the citizenry. Yes, there are times when the Police must get physical and quell a physical threat, but that is called self defense or defense of the public. So, in this particular case; I did all I could to make my community aware of what had happened to David Riley. I spoke at a City Council Meeting, I spoke at a Police Officer’s Review Board Meeting, I spoke to the media and I blogged about it.
Here is an article where the Columbia Tribune wrote about me trying to bring some awareness to this issue: Investigator Stirs Up Closed Case.
Well, I had some people that believed I was right and some people that thought I was using the media to get some attention for myself. I can understand how some people might feel that way, often times when a person is trying to bring some attention to an issue that they are involved in; it is hard to distinguish who they are trying to get attention for. I told the CPD spokeswoman at the time, that this case would wind up costing the city some money. The CPD spokeswoman responded as if the CPD did everything right, and there was no way that David Riley could ever be on solid ground to sue the CPD.
And there is a twist…….
In the last two weeks David Riley was offered a settlement of he received $55,000.00 by the City of Columbia, MO. to NOT go to Federal Court with his case, which he accepted. We don’t know what the amount of the actual settlement was, but you can bet it was more than $55,000.00, because that amount is what David Riley personally received, he also had to have money for his hospital bills, and of course his attorney had to get paid for his hard work. Here is the Columbia Tribune Article on the settlement: City Settles With Man Who Was Beaten During 2009 Arrest
All I can say is good for David Riley. I am glad that he got some money to try to get his life back on track with. I also hope that the City of Columbia, MO. realizes that the undercover Officer that beat David Riley that night and his cohort, just cost the City of Columbia a significant amount of money.
I also want to make something else clear. When this incident occurred, Chief Burton had only been Chief of the CPD for a few months. While technically speaking, Chief Burton was in charge, he was so new that he was having to rely on his staff to see how the CPD was structured, what the policies were at the CPD, what their strengths and weaknesses were, and just to get a feel for how the CPD functioned overall. We don’t see these incidents in Columbia, MO. anymore. Chief Ken Burton has made tremendous strides to try to prevent these types of incidents from occurring. Chief Burton has terminated the employment of Officers that have behaved this way in the past, at great personal sacrifice to himself. We now have a wonderful Chief of Police at the CPD that cares about the citizenry here in Columbia, MO., and is tough enough to make the hard decisions in his job. Chief Burton has bought these types incidents way down. And, I think it is fair that we don’t put the responsibility of this on him ; he was not at the CPD long enough when this incident occurred to really implement any change that would have prevented this.
We have all seen the news here in Missouri and I think we all know who “Baby Lisa” is by now; but for those that don’t below are some news links for you to read:
Now after reading the articles and becoming familiar with this case, one can see that it is a case that has captured a lot of people’s attention. This case is getting quite a bit of publicity and it is certainly considered a high-profile case. This is also a prime case for a good Private Investigator to join in on and work on behalf of the family. This is a good case for a Private Investigator. And we actually have a person that is working this case for the family in what the media has characterized as a Private Investigator. Mr. Bill Stanton is in Kansas City and working this case. Mr. Stanton is from New York, New York, with a background in Law Enforcement and Private Security. While Mr. Stanton was working in the Private Security Sector he did a lot of work for the various News Media Agencies and undoubtedly garnered some contacts in the media that may be very useful in the Baby Lisa Irwin Case. Mr. Stanton seems to be a good fit for a case like this, in which the media can be utilized to help recover Baby Lisa Irwin. So, it sounds like we have a decent person, well suited for this type of work on the case.
But…. Some people just can’t leave the best possible situation alone. And some people don’t like to see others get spotlight that they think they are so richly entitled to… There has been several complaints here in Missouri about Mr. Stanton working this case simply because he is not licensed as a Private Investigator here in Missouri. One person in particular has been very verbal about this case, Private Investigator Ron Rugen from Kansas City, MO. I personally know Mr. Rugen, and I can tell you that Mr. Rugen is an EXCELLENT Process Server. He can deliver a subpoena to a person tha tis a party to a legal case like nobody’s business! Mr. Rugen has apparently had some problems with Mr. Stanton working this case involving Baby Lisa Irwin, and has been quite vocal about it. Now, Mr. Rugen contends that he is legally obligated to report Mr. Stanton to our Private Investigator Licensing Board here in Missouri if Mr. Stanton does not have a Private Investigator’s License. Mr. Rugen is effectively saying that he has no choice but to report Mr. Stanton because he suspects that Mr. Stanton is practicing as a Private Investigator without a license. Let’s examine this for a minute. First let me give you a frame of reference for the rules and statutes here in Missouri that regulates the Private Investigation Business. Below is a link to the rules and statutes that regulate the Private Investigation Business here in Missouri.:
The rules for reporting unlicensed activity fall under 20 CSR 2234-7.010 Code of Conduct. Now lets examine the rules for reporting unlicensed activity:
If you will look on page three (3) of the Code of Conduct you will see this if you read carefully:
(C) Aiding Unlicensed Practice.
1. Private investigators shall neither permit nor suffer any person with whom they are associated to practice the profession without being properly licensed.
2. Private investigators shall promptly report to the board any person who appears to be unlawfully practicing the profession without a license.
A. Private investigators may consult with the person who appears to be unlawfully practicing the profession without a license regarding the circumstances, and if reasonably satisfied that no violation has occurred, choose not to notify the board.
B. Private investigators need not investigate the conduct of the person who appears to be unlawfully practicing the profession without a license in such circumstances. Reporting the conduct to the board discharges the private investigator’s duty under this section.
C. An anonymous complaint to the board does not comply with the provisions of this section.
D. No action will be taken by the board against a private investigator who has made a report pursuant to the provisions of this section unless malice is shown to be the motive for an untruthful report.
I highlit the part of the code for reporting unlicensed activity to the Missouri Board of Private Investigator Examiners. As we can very plainly see there is no hard and fast rule that absolutely requires one to report suspicions of unlicensed activity to the Missouri Board of Private Investigator Examiners. As a matter of fact, there is a specific provision in the rules that allow a Licensed Private Investigator to make an inquiry with the person that he or she believes is practicing without a license in an effort to determine whether there is cause to make a complaint, or if making a complaint would amount to no more than a baseless allegation. So, the statement that one must report all suspicious activity to the Missouri Board of Private Investigator Examiners is not completely accurate. In cases where there is some question as to whether or not a person is operating illegally as a Private Investigator in Missouri by not being licensed, the licensed Private Investigator that is aware of these suspicions has the option to first consult with the person they suspect of conducing unlicensed activity to see if this is in fact really occurring.
Now with regard to Mr. Bill Stanton, there is no doubt that he is not licensed here in the state of Missouri as a Private Investigator. A simple check of the Occupational Licensing database will reveal that Mr. Bill Stanton does not hold a Private Investigator’s license in Missouri. Anyone can check this Occupational Licensing Database, it is available to the public and can be found at this link: Missouri Occupational Licensing Database. So, it is simple to come to the conclusion that Mr. Bill Stanton is not a Missouri Licensed Private Investigator. However, before making a complaint with the Missouri Board of Private Investigator Examiners, what we have to determine is whether or not the activity that Mr. Stanton is conducting can be defined as conducting the business of a Private Investigator without a license. Media reports and media assigned titles do not rise to the level of cause to believe that Mr. Stanton is conducting Private Investigator business without a license. I think that the most appropriate approach to this situation would be to first contact Mr. Stanton and ask what types of his activities he is conducting, in what capacity he is working for the family in, and to go over the rules and statutes with him in order to give him and understanding of where the line is in what activities he can legally conduct and can’t legally conduct.
I must admit that I am a little disappointed in Mr. Rugen’s lack of understanding of our rules governing Private Investigators here in Missouri. I also have to wonder why Mr. Rugen has inserted himself into this case to begin with? Was Mr. Rugen contacted by the family to assist in locating Baby Lisa Irwin? Was Mr. Rugen contacted by Law Enforcement to consult to them with some special skill that he has in trying to locate Baby Lisa Irwin? While Mr. Rugen is an EXCELLENT Process Server; I am not aware of any special skills that he has that would enable him to offer some unique assistance to Law Enforcement in a Missing Child Case. I wonder (and I hope I am wrong), but I wonder if Mr. Rugen is just not trying to use this case to get himself some media attention? I really hope that this is not the case because I think that it would take a pretty selfish person to put their “need” for attention before that of a baby child’s need for as much media focus as possible to try to bring her safely home. I took the time to choose one of the better and most appropriate pictures I have of Mr. Rugen for this blog, which accurately portrays him.
I will follow up with a case analysis on this case from a member of my staff that has over 22 years of Law Enforcement Experience with 12 of those years being a Detective with a Regional Major Case Squad, tomorrow night. I think the public needs a close look at what is happening with this case, and I’d like to try to help focus the public on trying to find Baby Lisa Irwin.
As always, thank you for your time. Stay tuned!
Ricky B. Gurley.
Last week the Missouri Lawyer’s Media did an article on a discovery issue that Prosecutors, Defense Attorneys, and Investigators have been wrestling with for a while now. In this article I was quoted by the reporter that interviewed me for this article. I wanted to take some time and elaborate a little further on my position in regards to this issue. First I’d like to present to you a copy of the article. I snipped the full article, but cropped out the other articles that were mentioned in this Trade Journal. Below is the entire article:
First of all I should state that I know some of the members of our Local Internet Crimes Task Force, and the ones that I know are good and honest people. I do trust the members of our local Internet Crimes Task Force and I don’t think they would ever do anything intentional that might send an innocent person to prison. I should caution anyone reading this that attempting to gain access to the hard drive of the investigating agency’s computer should not be the first course of action by the defense, a Digital Forensic’s Expert should first read the reports written by the Investigating Officer’s to try to determine if there is any cause to try to gain access to the investigating agency’s hard drive; often times there is no cause to do so. I should also state that I am not an attorney but I think it is also fair to state that most of the attorneys mentioned in this article are not Digital Forensics Experts either; and certainly not Merilee Crockett as evidenced by some of her statements in this article. The first quote from Merilee Crockett that I noticed was this:
A lot of people believe that once something is on a hard drive it is there forever. That’s a myth. There are no layers. It’s either there or it is not.
Well in essence that is true, but it is also over-simplistic. What is important to remember here in these types of cases is that we are dealing with Digital Evidence, and there is nothing simple about Digital Evidence. When someone tries to over-simplify how data on a computer is stored, over-written, or deleted there are a lot of key issues that get lost in the translation from complex to simple. First of all let me explain data deletion. When a file is “deleted” as the layman may believe, the file is not actually deleted initially, instead it is simply no longer linked to a “file tree” on the computer. The file is still on the computer for the time being until another file is saved and the space where that old file is at is reallocated for the new file, and then the old file gets overwritten. So often Digital Forensics Experts will say something like this to a layman as an example:
Nothing is ever deleted from a computer, it is overwritten. Think of the data on a computer as layers of information, and think of computer forensic software as a tool that can lift these layers of data to expose what you thought was once “deleted”.
Now one must understand that this quote is usually being made from a Digital Forensics Expert trying to explain data storage and deletion to a layman. This too is also an over-simplification of how data is stored, overwritten, and deleted. The difference is that what Merilee Crockett is saying here is for the purpose of trying to give an excuse as to why the defense should be hampered in discovery by limiting what can be key and important information that the defense needs, while all the Digital Forensics Expert is trying to do is give a layman an idea of what to expect in a Computer Forensic Examination. What may be the most accurate way to explain what happens is through this illustration listed below that was provided to me by a well known, and world renowned Digital Forensics Examiners and close associate of mine; Brian Ingram
How many computer novices and laymen do you think would completely understand that illustration above? There is one thing that is clear, if there is a file that occupies a portion of a cluster on a hard drive, then there is room for data from another file on the portion of that cluster that is not occupied, that portion of the cluster that is not occupied is called “File Slack“; and it is not only possible but also likely that a completely different file may occupy this same cluster in the unused portion of this cluster or the “File Slack”. This is a completely accurate illustration of the example that Digital Experts are trying to give laymen when they explain how data is overwritten and they use an example involving “layers of data”. And if you look at the example carefully, and read closely you will see that Merilee Crockett did actually simplify this issue to the point that some key issues on how data is recovered from a hard drive are lost in her “translation” of how data is stored, over-written, and deleted from a hard drive.
There is a reason that I gave the example of how an over-simplified interpretation of an issue such as what we are addressing here can be harmful. Prosecutors typically want to try to limit as much as they can with regard to discovery in a criminal case; but I should also say that there are a few Prosecutors that also believe in “Open Discovery” and Full Disclosure. There is nothing wrong with that, the defense also does the same thing. This is a good example of attorneys doing their jobs. But when a Prosecutor tries to limit evidence that can be exculpatory to the defendant; they start to breach a more sinister area resulting in a denial of justice to the defendant. As any good attorney knows this at the very least may border on what is known as a “Brady Violation”.
One of the key points that the prosecution tries to make when arguing against the defense looking at the hard drive from the Law Enforcement Agency that conducted the forensic examination on a defendant’s hard drive is that the hard drive from the Law Enforcement Agency’s computer will contain sensitive case information from other cases. If you read what Merilee Crockett has to say in this article, she proposes the same argument:
The hard drive contains chats from ongoing investigations. It has names of potential suspects never charged with crimes. It has the photos and names of underage personas used by undercover investigators, which a disgruntled defendant could easily post online. Defense attorneys can’t prevent that from happening. They have an ethical obligation to give the client everything they can
That sounds like a good argument; doesn’t it? I’d say that if I did not know what I know about Digital Forensics, encryption, and how to safely store data I’d agree with that as a good reason NOT to have to hand over the hard drive from the Law Enforcement Agency’s computer. But the problem with this argument is that the whole issue of exposing such sensitive case information to Defense Investigators is that there are a number of remedies that can be applied here. A digital image can be transferred to a hard drive and check-summed to show that it is a true bit image of the original hard drive from the defendant and all of the notes and other such pertinent information that is gathered in the course of the investigation of the specific case in question can also be transferred to that same hard drive; thereby consolidating the case information generated from the Law Enforcement investigation onto one hard drive for the Defense Investigator and keeping all of the other non-pertinent sensitive case information protected. Encryption could also be used on the hard drive belonging to the Law Enforcement Agency to limit what is viewed to only the pertinent data that applies to the case at hand. Under the Adam Walsh Child Protection Safety Act the Defense Investigator has to view the evidence at the Law Enforcement Agency’s facility, so a Law Enforcement Officer can easily sit down and decrypt the section or sections of the hard drive that needs to be examined by the Defense Investigator, thereby protecting all of the non-pertinent sensitive case information on the hard drive in question. The court can also impose orders that limit what the Defense Investigator can discuss with the Defense Attorney and their client to only case related material. There should also be multiple computers that are being used by the Law Enforcement Agency tasked with these types of investigations that have specific purposes; for example the computer that is being used to image and analyze the defendant’s hard drive should be a stand alone computer, not attached to the Internet in any way, that has all wireless adapters turned off this way there is a minimal chance of any evidence corruption issues. The computer that is used to chat with potential offenders should also have that one specific purpose; this way with the use of encryption all chat logs for a specific case can be freely examined by the defense in these types of cases. Are some of these methods labor intensive? Sure, but we are discussing a criminal case in which there is a possibility that a person can be wrongly accused, sent to prison, put on a sex offender registry for the rest of their life, and have their entire life negatively impacted as a result; isn’t doing everything we can to eliminate that possibility worth a little more work? There are ways around this issue; IF the concern here is a level playing field for the defense?
There are always questions in these cases when it comes to best practices in the forensic analysis of the defendant’s computer, evidence preservation and storage, and evidence spoliation issues. Often times these issues are insignificant enough that the chance of them presenting a problem in a case are so unlikely that they don’t warrant any consideration. I am not saying that I don’t trust that Law Enforcement is dong the best they can to make sure that their evidence is correct, but I am saying that it is real easy to make a mistake in cases that involve digital evidence. However when these questions rise to a level of concern to cause a realistic possibility that they could impede a defendant’s right to a fair trial; if the Defense’s expert can clearly articulate the reason for that concern the court should weigh the defendant’s right to a fair trial against the possibility that the investigating agency may have to expose some of it’s sensitive data to the Defense team. In my personal opinion; if you are looking at sending a man to prison for ten (10) years, then his right to a fair trial trumps a risk of exposure of sensitive data from the investigating agency’s computer.
There are a number of questions that the Defense Investigator should be trying to answer when looking over the discovery material from the prosecution.
(1) Was the computer that was used to conduct the Digital Forensic Examination attached to the Internet?
(2) What digital forensic software was used to conduct the examination with?
(3) Was there a virus scanner used by the investigating agency to see if the defendant’s hard drive may have a virus, Trojan, or some other type of malware that could have caused any content to be downloaded to the defendant’s computer without the defendant’s knowledge? If so, what virus scanner was used, what version, was it updated, and are there any known vulnerabilities associated with the virus scanner?
(4) Are there any anti-forensic tools on the investigating agency’s computer? If there are; why are they there?
These are only a small sampling of the questions that the Defense Investigator should be asking and trying to answer by reading the discovery material. If enough of these questions are answered in such a way that they give the Defense Investigator clear concerns that may need to be further examined, then it may be necessary to ask for the hard drive from the investigating agency’s computer. The Defense Investigator should be able clearly articulate these concerns to the court and explain the impact that they may have on the evidence. If the court finds that the Defense Investigator gave a reasonable accounting to the court of his or her concerns, and the court is convinced that these concerns are realistic; then perhaps it is not such a bad thing that the Defense Investigator is given what he or she needs to further explore these concerns instead of having to be forced to trust a detective that may not even know if he or she made a mistake in how they gathered and handled the case evidence?
I have noted that Merilee Crockett has compared handing over the hard drive from the investigating agency’s computer in cases that involve digital evidence to handing over a breathalyzer machine. One difference to note in these two examples is that with regard to digital evidence, usually the defense gets a copy of a detailed report from the investigating agency that outlines their computer examination in fair detail. With breathalyzer tests, there is less detail, and less tools and procedures for the Law Enforcement Officer to detail in his or her report, thus short of a fishing expedition there usually is not enough information to articulate a need to examine the breathalyzer machine source code. In People v. Cialino, 831 N.Y.S.2nd 680, 681 (Crim. Ct. 2007) the court did not deny access to the breathalyzer source code because it was not significant to the case; the court denied access to the breathalyzer because the defense could not clearly articulate why access to the breathalyzer source code was significant to the case; this can be seen in the language the court used when the court first called the defendant’s request a “fishing expedition” but then went on to say “it is incumbent on the defendant to show that a software change has altered the reliability and accuracy of the machine” and the court said that the defendant had not provided a reasonable basis that changes in the software of the Intoxilyzer 5000 had caused it to become unreliable. So the court left the door open for the examination of the source code of the breathalyzer machine in question, but it required a clear articulation as to why it would be reasonable for the defense should be permitted to examine the source code. In cases involving digital evidence that is gathered from imaging a hard drive, the investigative agency’s digital forensic analysis report will usually allow the Defense Investigator more information on the software used, processes used, and evidence interpretations made by the Detective to form any questions that might be pertinent to the case and research these questions to see if there may be good cause and NOT just a “fishing expedition” to ask for the hard drive from the investigating agency’s computer.
In summary; I am not saying that in every case the defense should have access to the investigating agency’s computer hard drive. What I am saying is that the courts should try to be open to seriously considering any request by the defense to examine the investigating agency’s hard drive if the defense can clearly articulate a need to do so. In my mind the whole issue comes down to a balancing act; the court should balance the defendant’s right to a fair trial against the need for Law Enforcement to keep sensitive case information confidential; once a clear articulation is made by the defense that demonstrates that there are reasonable issues that need to be explored by the defense in order to defend the defendant against any evidence corruption issues that may negatively impact the defendant’s right to a fair trial.
Ricky B. Gurley