Ken Strutin

New York Law Journal

September 29, 2010
Rick Kopstein / New York Law Journal

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

While there seems to be an unending supply of negative and inculpatory postings in social networking profiles, there is also the potential for uncovering a humanizing portrait for the defense to present at sentencing.

Day-in-the-life videos are a staple of tort practice to support damage claims and in criminal prosecutions to showcase a victim’s life and character. The multimedia diaries and correspondence that comprise Facebook and MySpace profiles have similar potential for the defense. Since many of the accused entering the criminal justice system will be accompanied by social media, defense counsel might need to review their social space, along with medical and school records and other background information.

A preliminary audit of a client’s online profile serves two purposes: (1) to identify evidence that might show up in a probation department pre-sentence report[FOOTNOTE 1]; and (2) to provide an instrument for marshalling positive information about the client. Still, social media is a two-headed coin and the first toss is usually tails.

In State v. Huertas, 2009 Wash. App. LEXIS 1886, at 30 n.10, 31 n.11 (Wash. Ct. App. July 27, 2009), a teen girl had been convicted of controlled substance homicide for failing to get medical attention for her friend with whom she had shared drugs. Among the probation and treatment reports the sentencing court considered were “printouts of postings from myspace.com.”

The judge was disturbed by defendant’s failure to accept full responsibility for her actions. And recorded within Huertas’ online profile were communications to the victim’s family highlighting an unwillingness to accept blame and minimizing her role.

Her attorney was wary of the court’s reliance on MySpace evidence, pointing out that not all the postings were attributable to his client. “[Defense Attorney] Fricke dismissed the bulk of the online postings, saying they were not directly written by Huertas but by people she knew. Huertas couldn’t be held responsible for the actions of others, he said.”[FOOTNOTE 2]

Overall, the court made a finding of “manifest injustice disposition,” committing her to a juvenile institution until she reached 21 in lieu of the standard range of 0-30 days in detention.

This case is typical of the kinds of personal disclosures in social networking that can lead to sentence enhancement and undermine expressions of contrition.[FOOTNOTE 3] The problem is that a defendant’s postings are usually impulsive, the product of or encouraged by exchanges with friends, and produced under a vague notion of online privacy. Once the damage is done, a concerted effort to present a complete picture might be the best option to ameliorate its impact.[FOOTNOTE 4]

PLEAS FOR LENIENCY

The defense pre-sentence report is a staple of post-conviction advocacy.[FOOTNOTE 5] And in the 21st century, it must take account of social media. Letters of recommendation and support are very important in painting a positive picture of the client for the sentencing judge. And a social networking medium, the heart of which is communication, can serve a useful function in gathering support from untapped sources.

Facebook recently announced the beginnings of an “Ask Question” service that permits users to poll its 500 million members for advice; and crowdsourcing, e.g., asking consumers for feedback and suggestions, has gained a place among law firm and business marketing efforts.[FOOTNOTE 6]

Along this continuum of popular involvement, the traditional practice of seeking public support and combing through local communities for character references can have a cyberspace parallel.

For example, an erstwhile Pennsylvania county official convicted of federal corruption charges transformed Facebook into a sentencing advocacy tool. After pleading guilty, former Luzerne County Commissioner Greg Skrepenak sent a message to his 1,725 Facebook friends informing them that he had accepted responsibility for his actions and asked for their support. He invited them to send character references to his counsel or the judge in the hopes of earning leniency.[FOOTNOTE 7] He received a two-year prison sentence below federal guidelines.[FOOTNOTE 8]

In another case, the rap star Remy Ma (Remy Smith), who was convicted for her involvement in a shooting outside a New York nightclub, implored her fans through a MySpace petition to write letters of support to the sentencing judge.[FOOTNOTE 9] Her solicitation emphasized her contributions as an artist: “Please write letters about how Remy and her music has positively affected you, influenced you, inspired you, etc. In hopes that the judge will be lenient in Remy’s upcoming sentencing. Thank you all for your support.”

The judge sentenced her to eight years in prison, which was less than the 13 years sought by the prosecution.[FOOTNOTE 10]

After Paris Hilton had been convicted of violating her probation for an earlier alcohol-related driving offense, she was sentenced to 45 days in jail. Before beginning her sentence, a clemency petition, created by an admirer, had been linked to a blog posted on her MySpace page.[FOOTNOTE 11]

The signature drive made an earnest plea for suspending her jail term. It extolled her contributions to American culture while contrasting the nature of her offense with other more serious cases in which the defendants did not receive jail time.[FOOTNOTE 12] Finally, it focused on her contrition:

This petition is to ask Governor Arnold Schwarzenegger to pardon Paris Hilton for her mistake. Please allow her to return to her career and life. Everyone makes mistakes. She didn’t hurt or kill anyone, and she has learned her lesson. She is sincere, apologetic, and full of regret for her actions as she explained tearfully to the Judge handling her case in court yesterday. She is distraught and understandably afraid.

Hilton’s petition collected nearly 12,000 signatures. However, the clemency plea also inspired a counterpetition urging the governor to affirm the sentence.[FOOTNOTE 13] Later, her jail time had been cut short in favor of home confinement due to medical reasons.

Overall, it is not certain how much weight these online signature drives had on the sentencing courts, but they were important as evidence demonstrating popular sentiment in support of mitigation, and potentially sources of character references. Social media has the power to radiate defense efforts in collecting and uncovering favorable information for sentencing.

DAMAGE CONTROL

The damaging evidence that might be found on a defendant’s online profile, and later in a pre-sentence report, are not very different from the negative comments and opinions posted in public forums. And the courts have only begun to grapple with their impact at sentencing.

In People v. Sikat, 2010 Cal. App. Unpub. LEXIS 360 (Cal. App. 4th Dist. Jan. 19, 2010), the defendant had been convicted of 55 counts of child sexual molestation. During sentencing, the judge made reference to readers’ comments to an Orange County Register blog article that “called for the death penalty for child molestation offenses like defendant’s.”[FOOTNOTE 14] On appeal, the defendant claimed that the sentencing judge’s citation of the comments was evidence of bias.

The California Court of Appeals found that the article and readers comments did not introduce anything that would have prejudiced a sentencing judge accustomed to hearing calls for “vengeance from the public.” In other words, “no reasonable observer would conclude anonymous, internet blog comments injected material of any novelty or import into the judge’s consideration.”

Arguments that the blog statements constituted improper ex parte communication or independent investigation were also rejected. And ultimately, the bias claim was held to be unfounded. Nonetheless, the appeals court did “not condone the trial court’s reference to the blog or blog comments during the sentencing hearing.”[FOOTNOTE 15]

It has been observed that: “The use of disputed information to make post-sentencing decisions may be considered an additional penalty imposed upon the inmate without due process of law.”[FOOTNOTE 16] Online comments whether in a public or semi-private forum (such as social networking), have to be scrutinized. The sentencing decision ought to be based on credible, reliable, and authentic evidence. Material derived from online social spaces offered to enhance punishment should be constitutionally suspect.

CONCLUSION

The reason that most of the defense examples of mitigation efforts were drawn from celebrity cases is that public notables have long inhabited a media-driven world. It is only recently that social networking has become the domain of mass microcelebrities and ad hoc communities.

This virtual resource has already proven itself a valuable tool for gathering inculpating and aggravating proof for prosecutions and sentencings. For the savvy defendant, it is becoming an outlet for harvesting mitigation evidence that might lead to leniency.

How deeply must defense attorneys delve into social media in representing their clients at sentencing? The U.S. Supreme Court inTownsend v. Burke, 334 U.S. 736, 741 (1948), cautioned that defendants ought to be guarded from punishments based on false or misleading information. It would seem that this injunction compels counsel to challenge sentencing information drawn from the social centers of cyberspace.

Due process must temper the unchecked use of aggravating social media evidence at sentencing, as well as arraignment and other proceedings. At the same time, these online forums are opening unprecedented opportunities for developing mitigating evidence that can provide courts with a fair picture of the person appearing for sentence.

Ken Strutin is director of legal information services at the New York State Defenders Association.

::::FOOTNOTES::::

See generally Alan Rosenthal, Sentencing Tips for New York Lawyers: Obtain a Copy of the Pre-sentence Report (Center for Community Alternatives).

See “Woman to Be Sentenced as Juvenile in Ecstasy Death; Family ‘Appalled’,” Herald, Aug. 14, 2008.

See “Social Networking Puts the Bite on Defendants,” Law Technology News, July 22, 2008.

See “First Thing Lawyer Tells New Clients: Shut Down Facebook Account,” ABA Journal Law News Now, Feb. 9, 2010.

See generally Anthony J. Colleluori, What to Put in a Pre-Sentence Report, 34 Practical Lawyer (4), 29 (June 1988)(This classic article provides an excellent discussion of pre-sentence report preparation from the defense perspective.)

See Blake Ross, “Searching for Answers? Ask Facebook Questions,” Facebook Blog, July 28, 2010; “Tapping the Wisdom of the Crowd,” N.Y. Times, Aug. 4, 2010.

See “Skrep Reaches Out for Help on Facebook,” The Times Leader, Aug. 4, 2010.

See “Ex-NFL Lineman Gets Prison on Pa. Corruption Rap,” The Associated Press, Aug. 6, 2010.

See “Remy Ma’s Beggin’ for Fan Support,” N.Y. Daily News, March 29, 2008.

See “Remy Ma Sentenced to Eight Years in Prison,” MTV, May 13, 2008. See also People v. Smith, 61 A.D.3d 579 (1st Dept. 2009), lv. granted, 14 N.Y.3d 805 (2010).

See “Paris Hilton Blogs for Forgiveness,” About.com, May 9, 2007.

See Free Paris Hilton Petition; see also “Hilton Will Do More Time Than Most, Analysis Finds,” Los Angeles Times, June 14, 2007.

See Jail Paris Hilton; “How Sick Are You of Paris Hilton?,” PC World, May 9, 2007.

2010 Cal. App. Unpub. LEXIS 360, at 30-31.

Id. at 35. Cf. Matthew Mastromauro, “Pretrial Prejudice 2.0: How YouTube Generated News Coverage Is Set to Complicate the Concepts of Pretrial Prejudice Doctrine and Endanger Sixth Amendment Fair Trial Rights,” 10 J. High Tech. L. 289, 341 (2010)(“YouTube is far from the ‘responsible press’ described by Sheppard.”).

See generally Gregory W. Carman & Tamar Harutunian, “Fairness at the Time of Sentencing: The Accuracy of the Pre-sentence Report,” 78 St. John’s L. Rev. 1, 2 (2004).

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Plaintiff must give defendant access to private postings from Facebook and MySpace that could contradict personal injury action claims

Noeleen G. Walder
New York Law Journal

September 24, 2010

A plaintiff must give a defendant access to private postings from two social networking sites that could contradict claims she made in a personal injury action, a Suffolk County, N.Y., judge has ruled.

Acting Justice Jeffrey Arlen Spinner of New York’s Suffolk County Supreme Court held that precluding defendant Steelcase Inc. from accessing Kathleen Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

The judge continued, “In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

In 2003, Romano fell off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained “serious permanent personal injuries” and had to undergo multiple surgeries, she sued Steelcase Inc., the manufacturer of the chair, and the chair’s alleged distributor, Educational & Institutional Cooperative Services Inc.

Among other things, she maintained that she had herniated discs, restricted motion in her neck and back, and “pain and progressive deterioration with consequential loss of enjoyment of life.”

However, Steelcase said in court papers that Romano’s claims were belied by public portions of her Facebook and MySpace profiles, which “reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”

For example, Steelcase said Romano’s public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

Steelcase subsequently served Romano with a notice for discovery requesting “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”

After she refused to provide this information, Steelcase moved by order to show cause to obtain access to Romano’s accounts.
In opposing the motion, Romano insisted that she “possesse[d] a reasonable expectation of privacy in her home computer.”

Romano argued that Steelcase’s claims about her active lifestyle were based on nothing more than “speculation and conjecture” and characterized the discovery request as a “blatant attempt by defendant to intimidate and harass” her.

“Ordering the release of all private messages” on her accounts “would permit this defendant to obtain wholly irrelevant information as well as extremely private information to the extreme prejudice of plaintiff,” Romano contended in court filings.

Facebook also opposed Steelcase’s request, saying that the manufacturer should request the communications directly from Romano rather than from the social networking site.

Producing Romano’s profile without her consent violates the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena,” Facebook argued in court papers.

INJURIES ‘IN CONTROVERSY’

In Romano v. Steelcase Inc., 2006-2233, Spinner disagreed that turning over the documents amounted to a violation of Romano’s privacy.

“Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action… Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff’s injury,” the judge wrote.

He said it was “reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.”

Spinner also rejected Romano’s argument that the release of the information would violate her Fourth Amendment right to privacy.

He noted that MySpace cautions users to remember that their profiles are public forums.

Facebook also warns users that they post content on the site at their “own risk” and that “no security measures are perfect or impenetrable.”

“Please keep in mind that if you disclose personal information in your profile or when posting comments, messages, photos … or other items, this information may become publicly available,” Facebook says in its privacy policy.

“Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites or they would cease to exist,” Spinner wrote.

The judge ordered Romano to deliver to Steelcase an authorization so that the defendant could gain access to her Facebook and MySpace records, “including any records previously deleted or archived by said operators.”

Robert Kelner, who represented Romano, said in an interview that his client is considering an appeal.

“We feel that there is a huge difference between what an individual puts on the electronic media for public consumption and what you put on the media that is designated [as] private,” said Kelner of Kelner & Kelner, a New York Law Journal columnist.

He said what occurred here was equivalent to tearing down curtains blocking the view into an individual’s home.

“This to us is your living room or bedroom electronically,” he said.

But Richard Raysman, a partner at Holland & Knight and a New York Law Journal columnist who is not involved in the case, called the defendant’s discovery request “perfectly valid” provided that it is related to the plaintiff’s injury.

The defense is entitled to obtain a plaintiff’s private information regardless of whether it is in a photo album at home or in cyberspace, which is where most people now store their photos, Raysman said.

James A. Gallagher Jr. of Gallagher & Faller in Garden City, who represented Steelcase, called the decision a “positive step” forward in arriving at the truth.

John T. Ryan & Associates of Riverhead represented Educational & Institutional Cooperative Services.

Aaron Rubin of Orrick, Herrington & Sutcliffe represented Facebook. He did not return a call for comment. MySpace did not take a position on the motion.

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Amy B. Goldsmith’s practice includes litigation, licensing and prosecution of patents, trademarks and copyrights around the world. She protects the global interests of both national and international clients in a variety of industries, including pet products, telecommunications, publishing, medical devices, green tech, and consumer and designer goods such as jewelry, handbags, eyewear, and apparel. She has a specialized background in genetics and is a member of the New York City, New York Women’s Bar Association and American Bar associations. Ms. Goldsmith is a frequent lecturer on intellectual property topics for Lawline.com and at industry associations.

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