Folks, Here’s a 1, 2, 3 post.
1 – Part of the discovery motion filed Aug. 25 in NC Superior Court by attorneys representing three Duke students whom Duke’s President, Richard H. Brodhead, wants to see put on trial for gang-rape and other felonies.
2 – A JinC reader’s comment on that part of the discovery motion.
3 – Some expert commentary by two friends regarding 1 and 2.
1 - From the motion:
On May 26, 2006, Durham Police Department Major S. Mihalch sent a memo to DPD personnel involved in the investigation of these cases directing them "to print and produce to Major L. Russ all email messages sent to or received by you from March 13, 2006 to the present which relate in any way to: the disturbance reported as occurring at 610 N. Buchanan Blvd. on or about March 13, 2006, and the rape reported at 3457 Hillsborough Road on or about the same date." The memo gave its recipients a response deadline of June 5, 2006, and went on to threaten disciplinary action for noncompliance. The memo also required anyone who did not provide copies of e-mails to certify they had not, in fact, sent or received any such e-mails.2 – The JinC Anonymous reader’s comment:
This is a layup question John!3 – Even a tech dummy like me knows Anon’s comments put important questions “out there.”
If Mihalch wanted to find any emails exchanged within DPD he only had to go to the person in the IT department that backups up their email system each day.
This person may be referred to as the "custodian" of the data files. Mihalch would ask the custodian to retrieve all the email sent or received within the specified period by any employee. (If you recall, Duke's email custodian was ordered to produce relevant emails in this fashion).
This is expressly permitted since virtually all organizations have email policies that state emails exchanged on the org's email system aren't subject to privacy rules. To cull the list of emails down to those of interest, you could search the contents for such key words as "rape, 'ho, Duke, lacrosse, hooligan, frame, hoax, hide, lie, stonewall, Nifong, Blinco's, etc".
If the email was exchanged solely to and from an independent mail service such as Hotmail, DPD would be entirely dependent upon the integrity of their employees to produce copies of such emails. Most likely, incriminating emails would be deleted.
Deleted emails from a service like Hotmail can be retrieved with a court order for a very short period. After that you are out of luck.
What are the odds that one of the purposes of Mihalch's directive was to "remind" the key players at DPD that they should delete any incriminating emails from their personal accounts?
Shouldn't the defense ask for a Court Order directing the DPD custodian to turn over copies of the emails rather than depend on what may be produced voluntarily?
But I don’t know enough to make an informed comment on what Anon. said.
So I called a friend who’s an expert in tech areas relevant to Anon’s comment.
He read 1 and 2.
He then said something very close to this:
Anon. is right in almost every respect.My tech friend ended with: “Get the word out there. You never know who knows what and how it could help.”
A “Hey, folks, send me everything by next week” corporate email is often really a “For God’s sake, everyone, check and delete as necessary” message that doesn’t fool anyone. Courts now recognize such emails and “frown on them.”
My friend cautioned he wasn’t saying “For God’s sake, everyone…” was the message intended by DPD Major S. Mihalch, but he said Mihalch's email raises lots of questions.
He noted that what Anon. was suggesting in the Duke lacrosse case has happened in many other cases where an organization doesn’t want the courts and public to know what it did. Enron was one of many example cases he cited where a “For God’s sake…” email had been used.
He cited others and added: “Your readers can tell you about many more Enron-like cases.”
He said Anon. “had it right” when he said Mihalch had only to contact his own IT people if all he wanted were relevant emails.
“Ask yourself, John, why Mihalch didn’t do that.”
He also said most attorneys litigating in areas where email deletion was a possibility “were on to that, and I’m sure those kids’ attorneys are.”
He had one difference with Anon.
My friend said he was “almost 100% sure” any deleted emails could be retrieved."Google, Yahoo, they all save emails. It may take a court order and some ‘digging,” but almost any ‘deleted’ email can be retrieved.”
I did further checking with a second friend who, while not as expert in tech matters as my first friend, has considerable experience working with law enforcement agencies.
After reading 1 and 2, my second friend didn’t contradict anything Anon reader and my first friend said, but he cautioned we should allow that perhaps Major Mihalch is, like me, a tech dummy; and his email may represent what he thought was the best way to make a good faith effort to gather the case emails.
Thank you to both friends
And thank you, Anon reader
Folks, JinC Regulars know I’m out of my depth on this one but many of you are not.
Your comments are welcome and will, I’m sure, be read by people who are tech and/or legal knowledgeable.
What’s more, many of you are in touch with bloggers and others who can knowledgeably pursue this matter. You’ll alert and inform them.
Justice will continue to be a struggle but day-by-day we make progress.