Defense attorney taps into the NSA’s surveillance of telephone metadata in hopes of finding exculpatory evidence

Among the documents leaked by Edward J. Snowden to the Guardian in June 2013 was an April 2013 order by the FISA Court directing Verizon to provide the National Security Agency (NSA) records of “telephony metadata” for all foreign calls between the U.S. and other countries and all domestic calls within the U.S, including local calls. After the Verizon Order was published, the Wall Street Journal reported that since 2006 AT&T, Sprint, and Verizon have been providing metadata to the NSA every three months which is being stored by the NSA in a large database. The metadata provided to the NSA includes the telephone numbers on both ends of the call, the locations where the call was made and received, the duration of the call, and the time of the call. The collection of metadata is indiscriminate, meaning that it is collected from all U.S. citizens making phone calls, not just those suspected of terrorism or other criminal activity. Although the conversation itself is not recorded, the compilation of records detailing who Americans are calling, for how long they speak, and from where they are speaking can reveal information that may be relevant in criminal cases.

According to this article by NBC News, a defense attorney in Florida is attempting to gain access to the telephone records compiled by the NSA in an effort to prove his client’s innocence in a murder trial. The defendant, Terrance Brown, claims that the NSA records can prove his innocence by showing that he was not at the scene of the crime when the murder took place. Brown’s cell phone provider, MetroPCS, was unable to produce the records during discovery because they had already deleted the records from their database.

Click here to read the order by District Court Judge Robin Rosenbaum requiring the federal government to respond to Brown’s discovery request for the NSA records. In response, the government filed a motion stating that the telephone metadata is classified and whether or not the government has the phone records is also classified. Specifically, the motion states that the government does not have the cell site information sought by Brown. The government also cites the Classified Information Procedures Act (CIPA) which allows the government to speak with the judge in camera and ex parte regarding classified information to explain what data it does or does not have.

According to the NBC News article, experts say that the “novel legal argument” used by Brown’s attorney could encourage other defense attorneys to pursue the records held by the NSA database during discovery. Before June 2013, attorneys were unaware that these NSA records existed, but according to Mark Rasch, former head of the Department of Justice Computer Crimes Unit, “now lawyers know, and they will ask for it.” Rasch notes that “you can’t hold massive amounts of personal data with impunity” and there are responsibilities that come with storing data which could open the NSA up to discovery.

In most cases, the cell phone provider is the best source for getting telephone records as it is not clear what records the NSA has collected or whether courts will order that the NSA provide this information through discovery in criminal cases. However, cell phone providers delete data after a certain period of time. In cases where the cell phone provider does not have the requested data and defense attorneys believe that cell phone data can provide exculpatory information, attorneys may consider seeking discovery from the NSA.

Substitute Analyst cases update

The NC Supreme Court decided several cases in June that dealt with the admissibility of testimony by substitute forensic analysts. The lead case in this series is State v. Ortiz-Zape, a case in which a forensic chemist testified for the state regarding the results that a non-testifying analyst produced using the gas chromatograph mass spectrometer (GCMS). The Court held that allowing the testimony of the substitute analyst did not violate the defendant’s Confrontation Clause rights where the expert’s testimony was an “independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field.” Ortiz-Zape, slip op. at 13 (quotations and citations omitted). The NC Supreme Court reasoned that the defendant’s right to cross examine the expert giving the opinion, not its underlying factual basis, is guaranteed by the Confrontation Clause.

Defenders, however, should continue to make objections to the testimony of substitute analysts at trial to preserve the issue, as the U.S. Supreme Court will be the final word on this issue.

It’s important to read the further analysis of this line of cases that is provided by Jessie Smith in her North Carolina Criminal Law blog post here.  She also explains the requirements for laying a proper foundation for substitute analyst testimony and discusses impermissible “surrogate” testimony.

While the NC Supreme Court in Ortiz-Zape discusses machine-generated raw data as being “truly machine-generated,” it has been shown that the results can be manipulated. Take a look at the video on Justin McShane’s blog for one example of why it is important to be able to cross-examine the analyst who performed the testing.

 

Evening at the School of Government, Part III: Firearms 101

We are excited to announce “Firearms 101,” the third program in our Evenings at the School of Government series. This series, cosponsored by the UNC School of Government and NC Office of Indigent Defense Services, consists of free presentations on forensic evidence and other criminal law topics that are designed to enhance the knowledge of criminal law practitioners. Available for CLE credit, these programs will occur after business hours at the School of Government in Chapel Hill. A social hour at a local venue will follow each presentation so that participants may continue their discussions with the speakers.

At this program, veteran defense attorney David Waters and private investigator Michael Grissom will instruct participants on firearm mechanics and functionality, projectile trajectory, and basic information about the firearm/toolmark comparison.  Using examples and images from their own cases, they will describe common issues related to forensic firearm analysis, and how defense counsel can address these through motions practice and cross-examination. They will also discuss raising challenges to a witness’s qualification as an expert and the merits of hiring a private firearms expert in a particular case.

Participants: This program is geared toward attorneys who may confront issues regarding firearms in their cases.

Location, Dates, & Times: The program will be held on Thursday, August 22 at the School of Government on the UNC-Chapel Hill campus. Sign-in is from 5:15pm to 5:30pm, at which time the program will begin. The 1.50 hour program ends at 7:00pm. Following the presentation, we welcome you to join the presenters for an informal happy hour at W XYZ bar, located in the lobby of the Aloft Hotel on Highway 54 in Chapel Hill. Directions to the Aloft Hotel can be found here.

RSVP: Registration is not required, but we ask that you RSVP via email by August 15 to Brooke Bailey, at bailey@sog.unc.edu.

Fee: Free. (Because no registration fee will be charged by the School of Government, each lawyer is responsible for paying the NC State Bar for earned CLE credits at $3.00 per hour.)

CLE Credit & Certification: This program offers 1.5 hours of general CLE credit and qualifies for NC State Bar criminal law specialization credit.

Materials: Materials for this program are forthcoming and will be available under the Course Materials category on the program website (http://www.sog.unc.edu/node/3666). Those who RSVP for this event will receive a confirmation email on August 19 with a link to the program materials. Please note that the materials will not be provided in hard-copy form at the program. We strongly recommend that you either bring a laptop and access the materials electronically or print and bring them with you to the program.

Directions and Parking: Directions to the School of Government may be found on our website’s visitor information page. Parking will be available in the lot adjacent to the School of Government. You will not need a parking code to enter the lot or a parking pass. (The gate opens at 5:00pm.) You will enter the building via the side entrance by the parking lot.

Additional Information: We look forward to seeing you next month.  If you have any questions or would like additional information, please contact Brooke Bailey (919.966.4227 / bailey@sog.unc.edu) or Defender Educator Alyson Grine (agrine@sog.unc.edu / 919.966.4248).

Where’s my lab report?

North Carolina defense attorneys no longer have to rely on the District Attorney’s office to find out information regarding the status of a test being performed by the State Crime Lab. Defense attorneys can now contact Joy Strickland, Assistant Attorney General at 919-662-4509 ext. 4400 or jstrickland@ncdoj.gov if they have questions about the status of a lab analysis. Ms. Strickland can inform attorneys whether their case has been assigned to an analyst, if it is still awaiting assignment, or if it is in another part of the lab for processing. Defense attorneys can also check with Ms. Strickland that they have received all lab reports from all sections of the lab. Ms. Strickland responds to attorneys across the state regarding lab analysis, so please use discretion in determining which cases to contact her about.  Before releasing information about the case, Ms. Strickland will need to verify that you are the attorney of record in the case. You can email her a copy of your appointment letter or another court document indicating that you are attorney of record.

This is a valuable resource available to defense attorneys because there have been cases where the State Crime Lab completed analysis and sent the lab report to the DA’s office and it was not turned over to the defense attorney in a timely manner due to clerical errors at the DA’s office. Click here to read about a case where a man was kept in jail for months awaiting lab results before it was determined that the State Crime Lab had sent the lab results to the DA’s office four months previously, but the DA’s office did not realize the reports had been received. The lab results exonerated the client of the rape charge he was facing. Assistant District Attorney Paul Jackson blamed his office’s delay on “unintentional human error.” A similar situation occurred in a Durham case where the District Attorney’s Office claimed it had not received lab results in a case whereas the State Crime Lab said it sent the results almost six months previously.

At most DA’s offices, staffers download the test results from the State Crime Lab’s Forensic Advantage program and pass the results on to prosecutors for disclosure in discovery. Unfortunately for defense attorneys and their clients, this process has resulted in delayed justice. To avoid a similar situation in your cases, it is recommended that you check with Joy Strickland regarding the status of lab reports instead of relying solely on information from the DA’s office.