BlackBerry Black Hole

Here, There and Nowhere…

Ace reporter Mike Scarcella with the Blog of Legal Times posts this item late Thursday: the missing BlackBerry – first mentioned in item #6, Tab A, of the prosecution’s response to the defendant’s joint motion to compel discovery – is truly missing.

Worse, there’s now question as to who ever had it.  Last week Assistant U.S. Attorney Glenn Kirshner told Judge Weisberg that Robert Wone’s BlackBerry was taken into custody by the District of Columbia MPD and handed over to the Secret Service to be “imaged.”  

At Kathy Wone’s request, the MPD then asked for the BlackBerry to be returned, and Kathy says she then later returned it to Radio Free Asia.  (RFA has yet to comment on the matter.)

Specifically Kirschner told the court in a filing:

“After it was believed to be imaged, the BlackBerry was retrieved from the U.S. Secret Service and returned to Mr. Wone’s widow…”

Except, at least according to the defense team, that’s flat out not true.   In this motion to compel, the defense has “…learned (last Thursday) that the Secret Service will maintain that they never received Mr. Wone’s BlackBerry to in fact image.”  Wha?

Since it’s unlikely Kirschner would intentionally tell the court an untruth, it suggests the problem lies with the MPD.  Either they were mistaken about the handling of the BlackBerry, or worse, someone just misled to the prosecutor to hide sloppy work. 

Neither instills confidence about the police efforts in this case or their ability to follow through on what would appear to be Evidence Gathering: 101.

It’s still unclear whether the jury will hear any of this, as the entire BlackBerry affair may not be allowed in the trial.  But if it is allowed, it provides the defense a massive opening to raise doubts not only about this piece of evidence, but evidence in the case as a whole.

And that is exactly the sort of evidentiary black hole the prosecution probably does not want to fall into.

-posted by Doug

And thanks to TK for first cluing us in on Mike’s piece yesterday. 

24 comments for “BlackBerry Black Hole

  1. CDinDC
    05/08/2009 at 10:12 AM

    I find it incredibly odd that the police department and/or secret service would release evidence AT ALL…to ANYONE. Seems like that blackberry should have gone to the dreaded storage facility. Isn’t that strange? I certainly don’t know MPD protocol when it comes to evidence, but I find it…….bizaar.

    Kinda like if Joe Price said can I borrow my computer? I have some items that I’d like to erase, uhh, I mean send to my mom from my hard drive. Sure, Joe, we’ll send it right over.

    As Doug says, “wha?”

    • Craig
      05/08/2009 at 10:18 AM

      I think that’s due to the woefully inadequate resources of the MPD, their SOP is to farm out investigative and forensics work to federal agencies like the FBI and USSS.

      WTF is up with that? It’s not like DC is some backwater town like Mayberry. Or is it?

      • CDinDC
        05/08/2009 at 11:02 AM

        We could rename the defendants Goober, Emmett and Opie. Although, I’m partial to Larry, Curly and Moe (Moe, of course, being Joe.)

        Cathy Lanier could be Barney Fife.

      • Michael
        05/08/2009 at 11:19 AM

        I have often said that DC, and mind you, it is my chosen residence, is not much different than most capital cities of developing countries. Having lived and visited many of them, unfortunately the similarities, more often than not, out weigh the differences.

        • CDinDC
          05/08/2009 at 11:36 AM

          DC is a step-child of the US Government. Statehood, anybody?

          • N.M.
            05/08/2009 at 9:34 PM

            Statehood – ha. Maybe when the city gets it act together. Until then – no thank you.

            That said, I don’t blame Cathy Lanier for the problems with the ME and the evidence facilities and so on. This problem was created and entrenched long before she got here, and leadership – strong leadership – is needed from the mayor’s office and the council reaching out to Congress etc. to get this situation under control.

            I don’t hold out much hope for that, though – the FBI crime lab is still a disaster.

            I would love to see a nationwide movement of crime victims and others get together to push for across the board improvements in all crime labs, starting with the feds and then down through the major jurisdictions. New regs, tighter rules, more funding for facilities, equipment, staff, salary increases, training, and timelines for everything.

            Yep. That’s what I’d like to see.

            • Craig
              05/09/2009 at 11:33 AM

              DC residents against Statehood. Great idea for a blog. Where do I sign up?

              Maybe after the dust settles, Eric Holder can honcho the audit and turn-around of the nation’s crime labs: REWIRE – The Robert E. Wone Improvements to the Recovery of Evidence Act.

              • 05/10/2009 at 11:21 PM

                Errr…. statehood. A conversation stopper, Craig.

              • N.M.
                05/11/2009 at 4:57 PM

                I think “REWIRE” is a wonderful idea.

                It be a great thing that the Wones’ lawyer friends could work on .

                Especially Eric Holder.

    • Lance
      05/08/2009 at 4:49 PM

      Well, I think the thing about the BlackBerry is that there was no relevant physical evidence to be had from it, so there was no need to keep the physical device; all they needed was the software, so once they copied that, returning the device to its owner (i.e. RFA) wouldn’t be a problem.

      Actually, the same would be true of Joe’s computer–there’d be no need to keep the physical object, only the data from it. Once they have the data, he can erase anything he likes. It would just be a mistake to give him the computer before getting that data, just as it would be a mistake to give anyone the BlackBerry without getting the data off…er. Yeah.

      • CDinDC
        05/08/2009 at 5:16 PM

        or fingerprints.

        • CDinDC
          05/08/2009 at 5:21 PM

          And, before anyone says, well sure Joe could have touched it, but more importantly, to the defense, perhaps he DIDN’T touch it. So it’s not just soft data that is relevant. The blackberry itself is.

          But as Nelly said, whatever. That blackberry isn’t gonna save their arses.

          All their are trying to do is prove it was impossible for the defendants to do this in that time frame. But as I already said, if it’s possible for an intruder to do it, it’s certainly possible for the defendants to do it. And as Grisham pointed out, they can make all the noise they want while doing it.

        • Lance
          05/08/2009 at 5:25 PM

          Oh, well, yeah. Or fingerprints. At this point we’re way outside anything I know about police procedure; I don’t know if the police would need to keep an item that’s been fingerprinted, or only keep a record of the fingerprinting results.

          • N.M.
            05/08/2009 at 9:36 PM

            Am I the only one who thinks its totally gross that RFA ‘recycled’ the blackberry out to a new employee? That just seems… wrong.

  2. Nelly
    05/08/2009 at 1:42 PM

    To the defense attorneys burning through their retainers: Yeah, whatever. As if that Blackberry and the mesgs, that most likely were planted by Joe et al., would have exonerated them. Would there have been a mesg on it also saying, “Crikey, an unknown intruder has just entered my room with a knife from Dylan’s culinary set!” And, if so, would that be credible and powerful enough to exonerate the defendants of all the charges? I don’t think so.

    • CDinDC
      05/08/2009 at 1:49 PM

      Nelly says: ““Crikey, an unknown intruder has just entered my room with a knife from Dylan’s culinary set!” ………. would that be credible and powerful enough to exonerate the defendants of all the charges?”

      Hmm….I think only if he had also typed “and the intruder said he will clean up after himself.” Scott free, in that case. ;>

    • Lance
      05/08/2009 at 4:59 PM

      But the thing about it is that the information might have been useful or it might have been useless, but that’s up to the defense–and then a jury–to decide. I mean, imagine the prosecution throwing away the knife retrieved from the scene and saying, “Well, you could have tried to make arguments about it, but since it could have been planted there, there’s not any point.”

      Also, of course, once you’ve got a missing BlackBerry with two messages on it, who knows what else might have been on there that would have been relevant. A message that was sent at 5pm saying “Dear Martin, thanks for calming me down this morning, you’re probably right that she’s not stalking me, and anyway she won’t know where to find me tonight, will she”? A message saying “Dear Eleanor, thank you for cloning me, using it to fake my own death and blame those Swann guys will be so worth it, bring it by 1509 tonight around 11”?

      …I mean, no, probably not. But missing evidence is missing evidence, and certainly doesn’t reflect well on the investigators.

  3. Frankie
    05/08/2009 at 2:24 PM

    Regarding the MPD farming out work to federal agencies — Because of the District’s unique role as the nation’s capital, the federal government performs several functions for the District that the city otherwise would perform. For example, the U.S. Attorney, not the D.C. Attorney General or other D.C. entity, prosecutes local criminal offenses for the District, in addition to prosecuting the usual federal offenses that comprise the work of a U.S. Attorney’s office. Whether or not the MPD’s been negligent in investigating this particular murder, I believe MPD’s farming out work to federal agencies is simply consistent with the enhanced role the federal government plays in local D.C. activities.

    • Craig
      05/08/2009 at 3:32 PM

      Thanks for the clarification. It makes sense there’s a special relationship. Inter-agency communication may seem to be lacking.

      • Dupont Dweller
        05/08/2009 at 9:21 PM

        “Farming Out ” to Federal Agencies seems a rather wan way of describing what actually occurred in this case. The FBI had a tent on the Swann street for weeks. That seems to betoken more a central role. If there is blame to go around the FBI must take some of it.

  4. CDinDC
    05/08/2009 at 5:37 PM

    This information was on MPD, Evidence Control Branch website.

    How the MPDC Recovers, Classifies, and Releases Property

    Metropolitan Police Department Officers recover property under many different circumstances. Once the officers obtain possession of the property, they are required to classify and record it on a police department form (Property Record) and log the item in a property tracking system. Except for impounded vehicles and prisoner’s property, all property is then transferred to Evidence Control where it is held until final disposition.

    Special Classifications and Procedures

    The following is a list of the classifications under which property is recovered and special procedures that may affect the release of the property. Title 5, DC Code, mandates these classifications and the procedures for processing the property.

    Evidence: This property is generally held until the conclusion of any pending court action. Subsequently, the prosecuting attorney will initiate a “Property Release” certifying that the property is no longer needed for court and may be returned to the rightful owner.

    Deceased Persons Property: To claim this property, a claimant will be required to produce a copy of the death certificate and documentation to establish next-of-kin relationship, or court- issued documents such as letters of administration.

    Looks like any procedures were completely disregarded regarding the blackberry.

    • N.M.
      05/08/2009 at 9:42 PM

      I’m guessing it was mischaracterized – instead of it being logged as “evidence” it was logged as “deceased persons property.” Thus MPD could have said “we transferred all evidence to the feds” – and they’d have been right, technically. Meanwhile Mrs. Wone could have asked her attorney about retrieving the paperwork, her attorney could have filled out the paperwork, and the MPD would have returned the blackberry because it was logged as “deceased persons property.”

      That makes sense to me… except wouldn’t Mrs. Wone’s attorneys have realized that the evidence shouldn’t be released that way, before the trial, and thus known something had gone wrong?

      I imagine she would have used her attorneys’ assistance to retrieve the blackberry, rather than doing it on her own….


  5. ksu499
    05/13/2009 at 1:58 PM

    If the emails were sent from a Blackberry belonging to RFA, there is a very good chance that the emails are in RFA’s archives. The last two employers I have worked for archive all emails through the corporate system, even those sent via Blackberry if they use the company’s messaging infrastructure.

    • Doug
      05/13/2009 at 5:19 PM

      Trouble is, the emails weren’t sent. They were only drafts that the police investigator says he saw; so no BlackBerry, no record of drafts. Good thinking, though.
      –Doug, co-editor

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