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"Come to the Cut"

A friend of mine, Joni Mueller, sent me a link yesterday, asking if I’d seen the article. The title was “Exclusion of MySpace Evidence in Gang Related [sic] Murder Trial.” The article discusses an evidentiary ruling in the unpublished case of People v. Wiliams (2010) 2010 WL 611444, 2010 Cal.App.Unpub. LEXIS 1251. [Note: Since there are two versions of the unpublished opinion and since I’m feeling lazy today, I personally will not use citations in discussing the case; the only time citations show up are when I’m quoting the original article using them.]

The article’s focus on the evidentiary ruling is puzzling.

I’m not at all sure why the author of the blog article chose the case he did to discuss the issue he appeared to want to discuss. Frankly, I found the dissent — on an entirely different issue — to be much more interesting. But the fact that the opinion is an unpublished opinion makes it pretty much valueless in California anyway. As with all unpublished cases, California’s Rules of Court make the case uncitable; it does not count as precedent. And the argument on this issue was unremarkable, to say the least.

The only thing I can figure is that there aren’t any published California criminal cases involving the use of social networking evidence and the author wanted to reference such a case, rather than any of my articles on the topic.

I myself would not bother to write about this unpublished case if it were not for the fact that the author of the article, who is licensed as an attorney in the State of California, but who may not actually practice criminal law decided to do so, made a couple of mistakes and I thought I would both fix those and springboard off his post to talk about how social networking doesget used in actual criminal cases in California.

(Side note: I do not know “Joshua Gilliland, Esq.,” who “is the blogger for ‘Bow Tie Law.'” I form my opinion that he may not actually practice criminal law on a few relatively minor details. First, the State Bar website shows that he is a member, but he lists his address as being with “D4 Discovery.” The “About” page for his website mentions nothing about actual lawyering, but only discusses his creating and teaching CLE courses, especially regarding e-discovery. And the article itself contains a few — again, fairly minor — errors that I don’t think a practicing attorney would make. My pointing this out is not intended to disparage Mr. Gilliland. Not everyone with a law license wants to, or should be required to, practice law. Even if my assessment is correct, if Mr. Gilliland does a good job teaching e-discovery and doesn’t do criminal trials, I see nothing at all wrong with that. Besides, much of what he said, he got right.)

One thing Gilliland got right were the facts, so I won’t rehash it all here. Basically, the defendant was tried and convicted for murder after a confrontation with rival gang members in which a gang member was shot. Apparently, one of his defenses was that the person shot was the aggressor and part of the evidence he wanted to have admitted to support his theory came from the MySpace page of the dead gang member’s sister (who was also present for the incident and testified about the shooting).

Gilliland seems to make a big deal of the fact the opinion is not clear if the evidence — a videotape — was a videotape of the MySpace page (i.e., someone videotaping the page while viewing it), or was a video that was embedded in, or part of, the page itself. I don’t know why that matters. He afterward mentions that the prosecution objected on “foundational” and “relevancy” grounds. His comments about this ambiguity made me wonder if that’s what he thought created a foundational issue. The court, however, was not unclear about that: the foundational objection was because the prosecutor claimed you could not tell who was in the video just by viewing it.

Gilliland, however, completely missed the point when he stated,

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (no evidence is admissible except relevant evidence). Williams, at *24.

Gilliland’s mistake is that Evidence Code section 352 deals with evidence that typically is relevant, but where the probative value is outweighed by concerns of undue prejudice, confusion or consumption of time. It is Evidence Code section 350 that states no evidence is admissible except relevant evidence.

But this mistake — one of the things that made me think Gilliland doesn’t do many trials — probably occurred because of another ambiguity in the opinion. (I have argued elsewhere that sloppy opinion-writing is one of the things that make unpublished opinions problematic.) The opinion itself states:

[T]he court ruled that it would be excluded under Evidence Code section 352. The court ruled that if the page had shown an actual crime of violence, the evidence would have been admitted, but that “this is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

The appellate opinion then went on to argue that the evidence was repetitive, as there was already significant other (presumably relevant) evidence making the same point. In other words, it was a 352 issue. And besides, the court noted, the defendant-appellant’s claim that his constitutional due process rights were violated by not admitting the evidence was wrong: the videotape “clearly involved a minor point” and exclusion of this minor piece of evidence did not rise to the level of a constitutional violation.

So much for those relatively minor quibbles. As you can see, the issue of “e-discovery” had almost no role to play here; nor was the attempted use of MySpace evidence all that significant.

As I noted, however, MySpace evidence does have some importance in gang cases, particularly when it comes in through gang experts cops. And speaking of gang cops, I particularly liked the dissenting comment of Justice Mosk in the case:

It is a stretch to assert that defendant Harvey somehow committed or aided and abetted a violation of Penal Code section 415 — a misdemeanor — and that a killing is a natural and probable consequence of that target offense. Are the words, “where are you from?” “offensive words in a public place which are inherently likely to provoke an immediate violent reaction”? (Pen.Code § 415, subd. (3).) Here, it was Williams that shot first. There was no violent reaction from the words. It was only after the victim taunted Williams that the latter started shooting. To leap from this series of events to the killing being a natural and probable consequence of the “where are you from?” statement does not seem to comport with the purpose of the doctrine. If the expert testimony can supply the evidence necessary for the target offense, the natural and probable consequence, and the gang enhancement, we are getting to the point where the expert is providing all the evidence to support the guilty verdicts.

It may well be that Harvey is an aider and abettor, but I question the use of the natural and probable consequence instruction. I would reverse Harvey’s conviction on the basis of the instruction.

The italics there are mine.

I’m confused about Justice Mosk’s point, though. Technically, he is correct that we’re only “getting to the point where the expert is providing all the evidence to support the guilty verdicts.” But under the law in California, gang experts cops can provide all or nearly-all the evidence to support guilty verdicts relating to gang charges or enhancements. (Pen. Code § 186.22(a), (b).) In those cases, they not only provide the evidence, they actually tell the jury that the defendant is guilty. Under California law, it is perfectly acceptable for the expert cop to say, “The defendant is guilty of this crime.” Arguments that this is something for the jury to decide and not for an armed officer in full battle gear to decide for them repeatedly fall on deaf ears.

To be fair — something you don’t necessarily get from the prosecution or judge at trial when these points are argued — the appellate courts have insisted on something more than a mere opinion of the ultimate issue. For example, in cases where the opinion is based merely on the fact that the accused person is a gang member and the gang commits crimes similar to the one the accused person has committed, appellate courts have lately not found that to be sufficient evidence. However, in many of these cases, the problem is that the gang expert cop simply did not talk long enough. If he had spit out some litany of “facts” — which can be based on hearsay — that would provide a more solid basis than just “he’s one of them, they do this,” the courts have upheld convictions based only on evidence provided by the expert cop.

Now I also promised above to discuss how MySpace — or social networking evidence generally — is commonly used in gang cases. I’ve already noted that the refusal of the court to admit the videotape in the unpublished Williams case was not an indication of any problems with the way it was collected, as Gilliland appears to think. The problem was some mix of relevancy and the 352 appraisal.

I also think if the prosecution, instead of the defense, had sought to have the evidence admitted, it would have been. This is not just because the courts typically exhibit a pro-prosecution bias on evidentiary matters. (The San Jose Mercury News has a story on its own review of five-years of criminal jury trial appeals which “establish a pattern of judicial conduct that favored prosecutors,” but I can’t link it because it requires registration, which I refuse to do.) It’s also because prosecutor’s often advance social-networking evidence to show that someone is a gang member. Pictures on MySpace accounts showing accused persons or witnesses “throwing gang signs,” or wearing “gang” uniforms clothing and/or “associating” — either in pictures, or by writing on MySpace “walls” — with people the gang expert cop will identify as gang members are all potential sources of evidence as far as the prosecution is concerned. The courts usually agree. Forget the fact that, to paraphrase Freud, “sometimes a red shirt is just a red shirt.”

When it comes to evidence that someone is a gang member, or to prove something about the gang (like “how violent it is”) you can never have too much. (I’m currently handling an appeal on a case where something like 10,000 pages of discovery was provided regarding the gang my client was allegedly trying to promote or benefit by getting into a fist fight. Several — not just one — gang experts cops, including a Royal Canadian Mounted Police Officer, testified to almost everything in those pages, too. So you see how much 352 means when it’s the prosecutor proffering the evidence.) And, trust me, you don’t need much of a “foundation.” Gang experts cops are allowed to rely on hearsay, so “someone told me it was the defendant in the video” probably provides all the foundation needed.

All in all, Gilliland is at least correct about this one important point: social networking evidence can be important in court.

Oh, my title? As they say, “Meh….” It comes from a quote attributed in Williams to a co-defendant. He was apparently inviting the rival gang members to follow him to an area where no one would be able to see what was about to go down. I liked it for the title because when it comes to social networking, it’s getting harder to find such places.