Law Talking Guys Blog

I'm not quite sure which makes me want to reach through the phone and strangle the cell phone customer service rep more: the "I understand your concern sir and am truly sorry for your inconvenience" scripted response to every issue they refuse to solve for you, or the fact that they are NEVER wrong when you tell them your phone is dropping service, or your bill is incorrect, or that you're pretty sure you've never downloaded a Shania Twain ringtone.

The vast majority of the time, any errors in the cell phone provider's data records are, at most, going to cost you the time spent arguing with them on the telephone (and I guess the appurtenant angina medicine required to keep you heart beating) and the money you're going to inevitably pay them once you realize you are fighting a losing battle. For some, however, these records might mean the difference between freedom or spending the rest of your life in prison. Such was the case with our client Charles Anthony Murphy, Jr. who was charged with conspiracy to commit murder, two counts of murder, and one count of attempted murder and who was recently tried in Orange County, California and defended by none other than The Law Talking Guys (criminal law defense attorneys Michael Molfetta and Paul Wasserman).

The primary pieces of evidence against our client were entirely derived from cell phone records. This required us to select smart jurors who were willing to not accept as Gospel cell phone company data that was replete with errors, inconsistencies and omissions. Fortunately, Mike and I picked such jurors and were able to convince five of the twelve that a man should not be convicted of murder using records the were demonstrably erroneous, and thus obtained a mistrial as the jury was hopelessly deadlocked 7-5.

So just how bad could records that the prosecution are relying upon to convict a man of murder be? Well..... pretty bad actually. In our case, the cell phone provider was T-Mobile. To demonstrate that our client was part of a criminal conspiracy to brutally slaughter an innocent family, the prosecution leaned heavily on two sets of records produced by T-Mobile in response to a search warrant: "billing records" for our client's cell phone (i.e. bills sent to him for payment), and supposedly corresponding back-end records that show what goes on "behind the scenes" when a call phone call is placed. These back-end records contained data that purported to show what "switch" a cell phone call utilized on the network (think of a router on your home computer network) and to what cell tower within that switch "family" handled the call. All well and good if the records prove to be accurate and complete.

This is where years spent as a computer and electronics geek (and being terrorized by jocks like Molfetta when I was a kid because of it) paid off. If there is one thing working with computers all these years has taught me, it's that data integrity can often be verified by cross-checking databases that contain the same information. Thus, if I were to look at an entry on the billing record, there should, of course, be a corresponding entry on the "back-end" records that show what tower and what switch connected to the cell phone dialing or receiving the call, what the time and date were for the call, and what the duration of the call was.

Unbelievably, there were a large number of call data entries where the information didn't match between the two records; one of the most striking examples being a call our client made where he was billed for 36 minutes of connection time when the back-end records showed the exact same call lasting for a little over 17 minutes.

More disturbingly, there were voluminous examples where calls billed to the client appeared on the billing records but NOT on the back-end records, and vice-versa. This missing data was particularly troubling as the prosecution was relying on existing data to prove our client was at a certain place at a certain time due to the cell tower location history. This, of course, begged the question of how reliable the data the prosecution actually had was, but also what call data we were missing that supported the fact that our client was not in the area the prosecution claimed he was at time when NO call data appeared in the records.

Time will tell if Mr. Murphy will be re-tried. However, the important lesson we learned in this trial AND admitted to by the T-Mobile expert on cross-examination: cell phone records are NOT designed and maintained with forensic evidence use in mind. They are first and foremost designed for one thing and one thing only: making a profit for their shareholders. Relying upon them as if they are the equivalent of DNA evidence is a dangerous practice indeed.

Every once in a while a criminal trial comes along that brings into question a lot more than the guilt or innocence of the accused. In those cases that have such emotional undertones the trial lawyer must choose wisely when declaring a strategy. If you choose wrong your jury will make their decision bases on their visceral reaction to the "hot topic" which underlies the case itself. Thus the question of proof beyond a reasonable doubt is out of the window and what the trial has effectively become is a political debate.

At the risk of allowing my pessimistic view of the political process to seep through, the last thing I want something as important as a criminal trial to become is a political debate. I mean let's face it, if the laws of perjury applied to those shin digs the jails would be full of guys wearing bright smiles and red ties.

Recently in Santa Ana, California a case forged its way into the conscience of this ultra conservative, pro law enforcement community when several students were criminally charged for disrupting a speech.

A group of young Muslim students at the University of California Irvine, during a speech by an Isreali official, stood up and loudly protested the speaker and his message. It was reported that the disruption was such that the speaker was unable to continue over the clamor. Ultimately they were all charged with misdemeanors for disrupting the peace. Immediately their lawyers dusted off their constitutional law note books from law school and stood up on their pulpit and clamored for the reinstatement of their client's first amendment rights. It seemed the obvious course of action.

In that instant the case went from a criminal trial where in the prosecutor must prove beyond a reasonable doubt what each kid did, when he did it, and why; to a debate over what constitutes 'free speech".

They were convicted.

The law governing the conduct of jurors and the wording of each specific charge in the Penal Code is covered by a two volume set of books known as Calcrim. In it the elements of each crime are laid out as well as all applicable laws and theories that jurors are to use during their deliberations.

Of particular note is the instruction which specifically prohibits jurors from allowing themselves or their deliberations to be influenced by passion or prejudice. I ask you, what issue is more central to our existence as Americans, and therefore capable for igniting a juror's passion, than the concept of 'free speech"? I am exercising that right at this very moment and frankly I am fired up. It is the very premise that our country was created upon. It is our most basic fundamental freedom. Hence it is ranked NUMERO UNO on our list of constitutional amendments.

Aristotle wrote about the concept of the "Tabula Rosa" or blank slate. In short he suggested that we are all born without any built in mental content and that we develop mental content based on experience and perception. John Locke later trumpeted the same concept when he wrote An Essay Concerning Human Understanding. The idea behind the aforementioned jury instruction (asking jurors to suspend passion and prejudice) undoubtedly can be traced back to Aristotle's concept.

In a perfect world the juror enters into his or her duty with a Tabula Rosa, a blank slate. Even the dilettante lawyer whose mock trial professor's voice is still ringing in his ears knows that expecting a truly open minded juror to actually show up at trial is begging for a legal whooping.

Jurors sit in the jury box for the first time and they have a look of wonderment about them... until the charges are read out loud. Then after their premeditated speeches designed to free them of their duty falls on deaf ears that look turns towards either disgust and or resignation. In that moment, their "slate" which is full of preconceived notions about the system, crime, politics, and everything else, is entirely and unquestionably in play. The only way to neutralize that is to stay away from those hot button topics that will further ignite those passions and prejudices.

In the case of the students above it may seem like "Monday Morning Quarterbacking" to suggest that the lawyers chose the wrong course, and it is. However such a critique is not necessarily wrong. In fact that's the point, it is always right. It just is frowned upon as an all too easy form of criticism...because it occurs on Monday...the day after the big game. Sometimes the lawyer has only one course of action, one play to call as it were. In this case there were several options available and the lawyers chose the wrong one...period.

Stay away from having your jury make decisions from the gut. Keep their focus on the unwieldy prose that is the reasonable doubt instruction and away from those beliefs that they presume to be self evident. let them, during their deliberations, bring up "free speech". They will, it is a basic tenet that we all know and believe in. Never assume that jurors are dumb, the old adage that a jury is 12 people who are too dumb to get out of jury duty is simply wrong.

At the end of the day we all have our own strong feelings about what those truths and rights actually mean. There is nothing that a single jury instruction read during the course of a mind numbing part of the trial, known as the instructing the jury, can do to get us to truly have that blank slate. We all may have been born with it but once it is gone it is gone for good. So be subtle about manipulating the jurors passions and prejudices, don't bludgeon them with what you think those feelings should be. Whatever you do NEVER actually expect them to have that tabula rosa... that ship sailed long before they ever swore to apply the laws and reach a just verdict.

Like most professions, the criminal justice system converses in a vernacular that is generally known only to those in the business. Strangely, even with paid consultants, Hollywood has historically missed the mark on re-creating accurate cop lingo in the myriad of police procedural programming it seems to pump out annually. My ears bleed every time a California T.V. cop uses the term "perp" to describe a criminal. No self-respecting Golden State law enforcement officer uses that word. "Suspect", "S-1" (suspects in police reports are often referred to in shorthand as S-1, S-2, etc.), even "crook" is how we roll down here in The O.C. In fact, the only thing more grating than California cops on television misquoting real cops, are middle-aged white guys living in suburbia using phrases like "roll" and "The O.C."

Of the all the jargon used in the criminal justice system, my favorite is perhaps "Rolling P.C." The P.C. part of the phrase is shorthand for Probable Cause. The Rolling part refers to vehicles. Put them together, and you have cop shorthand for how cops describe the legal justification for pulling over a suspicious vehicle. For example, that 1987 Ford panel van with a taillight out driven by a guy who looks like the main character from "Silence of the Lambs"? To a proactive cop, that's not a citizen who may be temporarily detained in order to issue a citation for a Vehicle Code 24600 violation. That's Rolling P.C. in a murder van. Although perfectly legal*, no one wants to be a court test-case. Unfortunately, the relatively new prohibitions against texting or talking on your cell phone are so vague and poorly drafted, that I believe they essentially turn us all into Rolling P.C.

To pull you over, a police office must have probable cause to believe you have committed a violation. Yet, the language prohibiting the use of a cell phone for texting or non-"hands-free" talking is far from clear. For talking on a cell, Vehicle Code Section 23123 states in relevant part:

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.

What if your phone is "configured" for "hands-free" operation by being in speakerphone mode, but you, like every other driver, are holding the phone in your hand about two feet away from your face while talking? Is the phone being "used in that manner" because it is in speakerphone mode or does "used in that manner" mean it must be free from your hand? It might seem like a technicality, but in the first instance there might not be probable cause to stop your car; in the second, there is. It becomes even more important, when the officer spots that bag of weed sitting in your center console after you're stopped.

The possibility of becoming Rolling P.C. becomes more profound when analyzing the anti-texting prohibition in V.C. 23123.5:

a) A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.

(b) As used in this section "write, send, or read a text-based communication" means using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.

(c) For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.

It is important to note, that probable cause has been interpreted over the years to mean, essentially, would a reasonable officer, observing the facts, have a reasonable belief that a crime is being committed. On my Droid, to pick a phone number from my contact list, I hold my phone and use my thumb to scroll through and select the correct contact and then select which of the contact's numbers I want to call. Through the back window of my car, a cop observing my actions might reasonably conclude I am texting or reading an email. That's enough to light me up (that one's on me N.B.C.) and pull me over to investigate. What about entering an address into my GPS app on my Droid? What if I send a text utilizing my Bluetooth headset and voice dictation? As written, that too is using a wireless device to "send... a texted based communication".

Currently, there is no case law which interprets how the statutes should be applied. Ultimately, for your own safety, it is probably best to pull over prior to messing with your cell. However, should you find yourself the victim of a Rolling P.C. stop, keep your hands on the wheel, be polite, and calmly explain that your carrier is AT&T. If sympathy doesn't get you off, at least your skilled attorney will be able to argue that the officer's observations were incorrect as there was a factual impossibility that you were doing anything with your phone due to the 100% chance you had no usable signal. Oh.... and tell your kids to avoid murder vans.

* If you've figured out that the police can stop you for some reason when they really want to check you out for something else entirely, you've stumbled upon what is known as a "pretext" stop. Now that you know it, you can pretty much forget complaining about it. California law prohibiting such police conduct was nullified when Californians passed the original Proposition 8 - "The Victim's Bill of Rights" in 1982. Currently, if the police have a real reason for stopping you for a traffic violation, they can do that in hopes of discovering something else much juicier. Ironically, the "old" Proposition 8 allows the police to do to you what the "new" Proposition 8 wishes it could prohibit.

Several weeks ago, I explained the rather twisted hacker practice referred to as "Swatting". A person is deemed to be "Swatted" when someone fakes the victim's Caller ID information and places a call to the victim's local 911 center posing as the victim and claiming something that will pretty much guarantee a police S.W.A.T. response; i.e. claiming you just murdered your spouse and will kill any police that come for you.

The most widely reported previous examples of Swatting involved a gang of phone hackers (a.k.a. "phreakers") who Swatted each other as a means of revenge against other members in their inner circle, and, even more frightening, a Washington State man who utilized Swatting as a way to terrorize a random Orange County, California family. Whelp.... now you can add pissing off the dude you're pwning on your Xbox 360.

This week in Eugene, Oregon, a S.W.A.T. team responded to a call that a 26 year-old man had just shot his father and was threatening to kill himself. When police arrived with weapons drawn, they detained and handcuffed the man and his girlfriend until they determined that the call was a hoax. Apparently the victim and the unknown suspect engaged in an argument over an online game they were playing together over the Xbox 360 Live network. Unfortunately, instead of launching into a profanity filled, racist diatribe over voice-chat like every other aggrieved Xbox 360 player usually does, the unknown gamer decided to reach out and touch the victim with the long arm(ed) of the law.

Sadly, I wasn't at all surprised to read that this happened. In fact, with services like Spoofcard.com that require no hacking skills at all to fake Caller ID information, I'm surprised that this doesn't happen more often. Ultimately, the most surprising fact about this story is that the 26 year-old Xbox gamer has a non-virtual girlfriend. On second thought, being an avid gamer myself, I probably should shut up before my wife figures me out.

I received my new California Driver's License in the mail recently and if I were still an underage college student looking for alcohol, I'd be pretty pissed off. Have you seen these things?! What happened to the days when an X-Acto knife, a little Wite-Out (look it up hipsters), and a steady hand enabled 1964 to suddenly look like 1961 in the dim lighting of The Red Onion? They've even changed the orientation of the license if you are under 21 to a vertical format instead of a horizontal one to make it easier for meathead doormen to weed out the delinquents without requiring the ability to read! That's just cold.

While the curbing of underage drinking is an admirable goal (assuming you are not an underage drinker) one of the primary objectives of these new counterfeit-resistant documents is to curb the incidents of identity theft. Identity theft often begins with a fake ID that is created using real information about an individual. This ID, often combined with a compromised Social Security Number, is then used to open bank accounts, take out loans or apply for credit cards, all under the name of the unsuspecting victim. This results in a ruined credit report and, in some cases, has even resulted in arrest warrants being issued for the wrong person! That's just cold.

In California, identity theft is proscribed under Penal Code Section 530.5(a) which states:

Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment in the state prison.

FYI - See that little nugget slipped in at the end? The one that states "or by imprisonment in the state prison."? That's the one that makes identity theft in California a felony punishable by up to three years in "The Joint".

But before you go thinking you could do three years in Pelican Bay standing on your head, here come the Feds with 18 USC 1028(a)(7) which prohibits using a fraudulent government document to violate any Federal (felony or misdemeanor) or State (felony only) law. How serious does the Federal judicial system take identity theft for financial gain? Well, if you accumulate more than $1,000 of ill-gotten gains during a one year period, you're looking at up to 15 YEARS in a Federal penitentiary. That's just cold.

This is where I cleverly inform you that if you are ever accused of identity theft, you need top-notch identity theft lawyers to make sure you don't exit prison so far in the future that our robot overlords refuse to issue you health insurance. No pressure though. You can just take all this useful information and go hire someone else who claims to be an expert in identity theft. You could. But you won't. Why? Because that would just be cold.

If you're like me, you have the incredibly unpleasant task of doing tech support for your mother. Don't get me wrong. I love my mother. Readers will remember she is the one who dressed me up as a football playing ghost on Halloween, painted a giant "69" on my chest, and sent me out to the neighbors. How can you NOT love a woman like that?! Yet, frankly, after having to reset her wireless router forty eight times because she keeps forgetting the password, you begin to wish there was some Logan's Run age limit for mothers with computers.

I know, I know. Wireless routers are an absolute bitch. Truth be told, the manufacturers don't make it easy with their alphabet soup of encryption anagrams (WPA, WEP, WPA2) not to mention the confusing compatibility standards of 802.11(b) or (g) or (omfg). Is it any surprise that the majority of wireless router owners do the absolute minimum of just plugging it in with security disabled? After all, if the hot chick in the apartment next door wants to piggyback onto your wireless broadband, what's the harm? Nothing, unless her boyfriend decides to use your router to download kiddie porn.

The three words you don't EVER want to hear coming from outside your front door are "Police! Search Warrant!" Even worse is when the Warrant is for all your computers and electronic devices which are suspected of storing your downloaded cache of child pornography. Unfortunately, the scenario of being wrongfully accused of trafficking in child pornography is not an academic exercise. As recently as this past March, a Buffalo N.Y. man awoke to the sound of Immigration and Customs Enforcement (I.C.E.) agents breaking down his back door to serve a search warrant. An investigator with Homeland Security, utilizing peer-to-peer software, connected to a user who allowed the file sharing of images and videos depicting children engaged in sexual acts. The agent was able to determine the IP address used to share the child pornography and trace it back to the home of the owner of the wireless router. After several days of pouring over the homeowners computer devices, the agents determined that the router owner had not downloaded the images. Sure enough, the homeowner's wireless network was not protected and police subsequently arrested a next door neighbor who they allege leeched off of the open wireless network.

This homeowner was lucky. Well... maybe lucky is the wrong word. Having Federal Agents scream that you are a pedophile while pointing assault weapons at your head might not be the classic definition of good fortune. However, he was lucky in the sense that the actual pedophile was not very good at covering his tracks. An open wireless network is an invitation to not only access your Internet connection but your home network as well. A skilled hacker could easily use your personal hard drive as a pornographic staging area making you appear as someone who did, in fact, download what the police think you downloaded. Suddenly you're not staring down the barrel of an MP5, but of an indictment under 18 U.S.C. 2252. Better get a good lawyer. (Ahem!).

Remember that nerd you tormented in high-school? You know, the one who set up the A/V equipment and was a whiz-kid with all things computer related? Well, he's no longer content with the smug satisfaction that his skills have made him a superior wage earner. Instead, he's using his skills to terrify you and your family with the mother of all "pranks": Swatting.

Swatting entails utilizing computer software, hardware or networks to fake the Caller ID information your telephone normally transmits to the receiving caller. In the case of swatting, your former nemesis replaces HIS Caller ID information with YOUR Caller ID information and calls your local 911 Center. Posing as you (or someone at your residence), the "fake you" tells the dispatcher that you've just murdered your spouse and are ready to kill any police that try to take you alive. This, of course, has a tendency to trigger an overwhelming police response that, in all likelihood, will include the deployment of the agency's S.W.A.T. Team. The only thing missing is Ashton Kutcher standing over your handcuffed and proned-out body to announce that "You've been Swatted!"

Currently, neither Federal nor California law specifically targets the conduct of swatting. However, successful prosecution has been achieved utilizing current computer fraud statutes as well as tried and true laws from before the days of the InterTubes.

In 2008, 19 year-old Randal Ellis was convicted for swatting a family he picked at random in the suburban city of Lake Forest in Orange County, California. Prosecutors charged Ellis with accessing a computer network in order to deceive (California Penal Code 502(c)(1)) as well as some old-school favorites like assault with a deadly weapon (P.C. 245(a)(2)), false imprisonment (P.C. 236-237(a)) and one you don't get to see too often, assault with a machine gun (P.C. 245(a)(3)). God love agency theory. Ellis pled guilty and was sentenced to three years in state prison.

Earlier this month, a Federal judge ordered Jason Allen Neff transferred from Missouri to Texas to answer to conspiracy charges related to his alleged swatting activity that has already landed his co-conspirators in Federal prison for sentences ranging from three to eleven years. Unlike California, which primarily relies on the "catch-all" P.C. 502, Federal law has an array of statutes aimed specifically at Cybercrime. From the arrest warrant issued, it is likely Neff will face charges of violating 18 U.S.C . 1029(a)(9) which prohibits the modification of "telecommunication identifying information" to obtain "telecommunications services." Whether or not "telecommunication services" does, in fact, encompass 911 services remains to be seen. More likely, this charge relates to other fraudulent activities of the swatting group which are detailed in the arrest warrant. In addition, the warrant details a violation of 18 U.S.C. 1030(a)(5)(A)(ii) which prohibits the reckless damage of a computer system. Here, per 18 U.S.C. 1030(e)(8), "damage" is defined as the "impairment to the integrity of data" of the computer system; i.e. modifying Caller ID information on telecommunications computers owned by the telephone companies. Neff faces a serious amount of time in a Federal prison.

Clearly times have changed. When I was a kid in the early 70's in New York, malcontents acted out in tried and true ways.... like spraying Nair, the hair removal product in a can, on the heads of us happy-go-lucky little Trick-or-Treaters on Halloween. Unfortunately for me, this compelled my mother to demand I wear a football helmet over my ghost costume which had, in her eyes, solved the problem by turning me into a football playing ghost. Of course, being my mother, she was not content with this perversion of my well planned poltergeist costume until she painted a giant "69" on my sheet and sent me off unwittingly to the neighbors to beg for candy. It was only years later before I understood why every adult who saw me pointed and laughed. Christ. I think I would have rather been swatted....