Litigation
can be lengthy and when there is a laundry list of discovery that involves social
media and meta-data it can either help or hurt a litigant. 2019 numbers reflect
4.99 billion active social media accounts. The average person has over seven social
media accounts and every 6.4 seconds there is a new social media user. Facebook
alone has 2,375 billion users [1]. Messaging, texting and joining social apps
is the new norm of communication, but it has its downfalls. Social media is a
game changer in the courtroom. “The information on these web sites
could assist a lawyer in practically any type of litigation-whether in terms of
developing basic facts or preparing material for impeachment” [2]. This post
discusses a murder case and how discovery that involves technology, primarily
social media, can impact the litigation process for trial.
The State of Utah vs. Ayoola Adisa
Ajayi
31-year-old Ayoola Adisa Ajayi is
facing felony charges of aggravated murder, aggravated kidnapping, desecration
of a human body and obstruction of justice. He is scheduled for a preliminary
hearing in March of 2020 where a judge will decide if there is enough evidence
for the case to go to trial for the murder of 23-year-old Mackenzie Lueck.
Background: In June 2019, Lueck, a University
of Utah student went missing. Police say Ayoola Ajayi met Lueck at a park in
North Salt Lake in the early morning hours and took her to his home. The charges state, her last text to him
(Ajayi) was at 2:58 a.m., one minute before her Lyft driver dropped her off at
Hatch Park in North Salt Lake. Charges
also state, Lueck's cellphone was powered off at 2:59 a.m. and never came back
on. Forensic evidence collected by police placed Ajayi's cellphone back at his
Salt Lake City residence at 3:07 a.m., about the time it would take to drive to
his house from the park [6].
Lueck’s disappearance made national
news, and two weeks later investigators found her charred remains in a shallow
grave in Logan Canyon. Prosecutors say Ajayi, the defendant, set fire to her
body. An autopsy revealed Lueck died from blunt force trauma to the left side
of her skull. At this point, it has still not been released how Ajayi and Lueck
met [3]. However, both had online profiles to various social media accounts
including Seeking Arrangements and Tinder, online dating applications. Days
after her disappearance a mattress was also listed for sale on the App Let Go.
Discovery:
In a response to request for discovery, the list is eight pages long [4] and
includes cell phone records, bank records, and 28 search warrants. Some of the
search warrants are for social media apps such as Lyft, Tinder, Seeking Arrangements,
Air B&B, Snapchat, Let Go, Comcast and Google. The response also includes surveillance
video from six different locations such as Smiths Marketplace and Salt Lake
International Airport, more than 3,000 photos, interviews with 11 different people,
and four witness names are listed in the document (although redacted for
privacy)[4] [5].
Discovery is the
principal fact-gathering method in the formal litigation process [7]. While our
class is primarily focused on civil litigation, we have learned a lot about
discovery and ESI. In our reading assignments you will begin to learn more
about criminal cases. You will learn a defendant who has been charged by
information has no right to a grand jury review, while a defendant who has been
charged by a grand jury has no right to a preliminary hearing [8]. As discussed
above, Ayoola Ajayi, is scheduled for a preliminary hearing in March of 2020. A
preliminary hearing is described as a mini-trial in which a judge or magistrate
determines whether there is probable cause to believe that a defendant
committed a crime and thus should be bound over for trial [8]. In this case, Ajayi
may choose to waive his preliminary hearing or the state will present evidence.
Based on our reading, the pretrial and trial process in criminal and civil
cases are identical. However, discovery in criminal cases are often more
limited than required in the civil system [9].
Questions:
1. Do you think
the judge will limit evidence in this case and require pretrial discovery
conferences to determine the admissibility of evidence in this case?
2. Do you think,
in cases like this, discovery proves most beneficial, but at the same time can
re-victimize even if the person is dead? And is there a way around it or does
the outcome of conviction far outweigh the issue of victimization?
5. https://localtvkstu.files.wordpress.com/2019/07/initial-discovery-documents-ayoola-ajayi.pdf
(this link no longer works, I will email the document to everybody)
7. Thomas A. Mauet & David Marcus, Pretrial 195 (9th
ed. 2015)
8. Wayne McCormack & Louisa M.A. Heiny Judicial
Process 15 (2017)
9. Wayne
McCormack & Louisa M.A. Heiny Judicial Process 16 (2017)
I don't think the judge would limit the discovery period on this case. This case was pretty public and I think based on the how much of this case was solved and required ESI to essentially solve the murder most of the ESI will be open to discovery to establish the full fact pattern and relationship between them.
ReplyDeleteI agree some of discovery can re-victimize, while Lueck was killed her family and friends are still alive and this would bring details and they would still have to essentially re-live her death in more graphic detail.But in order to give a fair trial to the accused as they are presumed innocent i don't really see a way around it.
Although the amount of information is extensive, based on the initial discovery document Felicia provided, it seems to me the categories of information (cellphone/electronic data, lab reports, photos, video recordings, social media, etc.) are necessary and important to the case and will be required for the prosecutor to prove the defendant is guilty beyond a reasonable doubt. In my opinion the judge will not limit the evidence if it is necessary to the prosecution or defense's case. At the end of the day, even monsters have a constitutional right to a public trial and to confront the evidence against them.
ReplyDeleteIt is heartbreaking that MacKenzie's family will have to live through a trial and that very private details of their daughter's life will become public. In the State of Utah, per the Right of Crime Victims Act, victims have the right “to be treated with fairness, respect, and dignity, and to be free from harassment and abuse throughout the criminal justice process.”(1) Per Utah code abuse means "treating the crime victim in a manner so as to injure, damage, or disparage." The code outlines the legislature's intent that all victims be "protected by law in a manner no less vigorous than protections afforded criminal defendants."(2) I am unsure what the teeth of this law are, but hopefully the judicial process does as much to protect the victim as it does to protect defendant's constitutional right to due process. The real danger may be the court of public opinion. I hope that our community will show empathy and be wary of blaming the victim (3).
Sources:
1. https://attorneygeneral.utah.gov/resources/victim-rights/
2. Utah Code Title 77, Utah Code of Criminal Procedure; Chapter 38, Rights of Crime Victims Act
3. https://www.theatlantic.com/science/archive/2016/10/the-psychology-of-victim-blaming/502661/
I think it is important for all of those documents to be included in the initial discovery. Not only are they needed for the Prosecutor to prove his case beyond a shadow of a doubt, but they re-direct the focus of victimization of MacKenzie's family and bring to light the dark side of social apps (Snapchat, Tinder, Seeking Arrangements, Air B&B). The public needs to know. As a parent, I hope my own kids (young adults) heed the warning.
ReplyDeleteI agree that the information is needed as part of discovery if the information wanted is relevant to the case. Part of the discovery process based on the facts that have already been collected is to foresee things that "could" be evidence and to not be destroyed. Once they have access to these documents and/or apps some may not be used or have any relevance in the case. Unfortunately, the family is going to have to "relive" what happened in order to get the justice they are looking for and that the victim deserves. The defense may try to discredit a witness or a victim and that is part of the criminal process. I could see the defense trying to use the dating apps she was on (if there are more than one) to discredit her character and make it look like she was promiscuous. But, there are also rules to follow to protect the victims like mentioned in Shelby's post. Jordana brought up a good point in regards to the dark side of the social apps. Although we are in the era of technology and I only see this progressing more if there are enough cases that bring this to light it could change the direction. That would probably take a while but at the same time, if it was not for all of this technology this crime may have been a lot harder to solve.
ReplyDeleteWhile discovery can be extensive, at some point there has there has to be bookends as to what is allowed and the breadth of information requested. However, in this case it seems the items called for are pertinent to the case and pretrial hearing. I read a little about this case as it was unfolding and I was impressed with the detective work that must have gone into finding Mackenzie Lueck’s remains. I would surmise all the items requested are necessary to substantiate the prosecution's case. Additionally, it seems that the judge assigned to the case must hold a pretrial conference in criminal cases otherwise if a pretrial conference is denied it could be an unconstitutional denial of due process rights. Yes, I think the judge will hold a pretrial discovery conference to determine the admissibility of evidence in the case as it will improve the quality of the trial through prior preparation.
ReplyDeleteBecause of the gravity of the charges and ultimate implications, I believe it is imperative to cast the discovery net wide. While it could be considered a revictimization by the survivor’s family, I assert most family members would rather want extensive discovery in hopes of a more accurate account of what led up to the murder as well as hope for the most stringent sentence for the offender. Part of my thought here is intuitive to how I think the majority of victim families may feel but is also rooted in personal and present experience. My cousin was murdered almost 5 years ago to the date, Nov. 1, 2014. The charges filed by the district attorney against the murder(s) and his prosecution has been protracted because my cousin’s body and the two other bodies were never found as they were burned in a pet crematorium. While our extended family and more specifically my uncle and his family want the prosecution to move forward as quickly as possible, we would rather have the discovery process unearth all the salient details to charge the murder(s) to the full extent possible. Unfortunately, victimization goes beyond the discovery process or even the trial as the injustice of someone taking another’s life goes beyond what any court can do.
I always cringe when I hear about this case. It’s a real reminder of the strange danger concept application in the digital universe. This case was also an insight into how investigative techniques have evolved. I believe metadata is a massive part of the evidence by the prosecution. Metadata is how the police know McKenzie and Ajay met at the park. And its also how they know Ajay was in the area where the shallow grave was found.
ReplyDeleteQuite frankly, I don't think the judge will limit the evidence in this case and require a pre-trial discovery conference. If he does, the prosecution may have a tough time proving the case. As I mentioned before, metadata is what puts Ajay at the scene of the crime. It appears that he may have sanitized the crime scene. Therefore the evidence collected at his house may not be sufficient without having a way to tie him to the meeting and at the shallow grave.
I believe discovery would be somewhat beneficial, but I don't think any new evidence will come to light. Since this is a criminal prosecution, Most of the evidence gathering happens before charges are filed. However, if discovery happens, It will only serve to re-victimize McKenzie. This may be the direction the defense may take. They may attempt to paint her as having multiple partners who may have done this to her for various reasons and try to cast reasonable doubt on Ajay's accusations. Unfortunately, I don't say a way around it. This could be a messy trail.
The first question isn’t as easy to answer as it may seem. The short answer is no. The long answer is it depends on the actions of the parties.
ReplyDeleteIt’s been my experience that discovery in a criminal case works very differently than in a civil case. Prosecutors and defense attorneys view discovery as a process that takes place after the accused is charged with a crime, and it is generally one-sided.
The police and the prosecutor (collectively prosecution) conduct a criminal investigation. During that investigation, they can ask the suspect for admissions (confession), but the suspect (generally)[1] doesn’t have to cooperate and won’t suffer any sanctions for not making admissions one would in a civil case.[2] At the end of a criminal investigation, the prosecutor may charge that person with a crime.[3]
Once the prosecutor charges someone, and if the defendant or the defendant’s attorney asks, the prosecutor must turn over a copy of all of the evidence (discovery) that the prosecutor will use to prosecute the accused including: a list of the witnesses they will call, their addresses and phone numbers, and a CV for an expert witness; all reports, video, audio, witness statements etc., and any exculpatory evidence.[4]
Prosecutors can ask for reverse discovery, but in the more than a thousand times I requested (usually eight-plus page requests), received, and processed discovery, the prosecutor asked for reverse discovery less than one-quarter of the time.[5]
I have never experienced a judge limiting discovery, as is done in civil cases. It’s been my experience that unless the rules of evidence, criminal procedure, or case law disallow certain evidence, e.g., prior bad acts,[6] a judge will generally allow it until the defense objects by a motion in limine (motion to suppress) or during a hearing, or the prosecutor objects to a specific discovery request.[7] When this happens, there is generally a hearing, at which time the judge will decide to allow or disallow contested evidence into the trial or force one side or the other to produce certain evidence.
In your example, I believe the prosecutor can decline to provide any of those items requested by the defense that the prosecutor does not have or will not use in court.[8] Unless the prosecution can show a reason why it should not disclose evidence that it has and will use, the judge will allow the request and compel the production.
Regarding the second part of this question, I’ve never seen a pre-trial order in a criminal case similar to the one in the Dickson v. Gleason case. A pre-trial conference in a criminal case is generally used to determine: 1) if a plea negotiation is possible. If so, they set the matter for a second pre-trial hearing. If a plea agreement is probable, the court sets a change-of-plea or disposition hearing; 2) if there are any motions to suppress evidence, dismiss, disqualify, etc. If there are, the court schedules a hearing; and 3) set the matter for trial. The judge usually determines the admissibility of evidence at an evidentiary hearing.
Discovery in a criminal case is essential. It is the only way a defendant can mount a meaningful defense. However, yes, it can and often does, re-victimize a victim. If the victim is dead, friends and loved ones may be re-victimized. I’ve spent a significant amount of time on both sides of this issue. In one sexual assault case, I sat through several suppression hearings, a competency hearing, and a two-day trial, all of which the victim also attended. She had to testify at some of the hearings and the trial. Each time she was visibly affected – re-traumatized. I’ve also seen the value of complete discovery for a defendant who was, in fact, not guilty. I don’t know the answer to this question; however, the readings from Professor Marshall’s class regarding restorative justice are interesting and very applicable to your question. Maybe there is a way to serve justice and the needs of victims.
1. Utah R. Crim. Proc. 16(h), the prosecutor can compel a criminal defendant to do certain things like appear in a line-up, give a blood sample, provide a handwriting sample, etc.
ReplyDelete2. U.S. Const. amend. V; Utah R. Civ. Proc. 37(c).
3. The investigation may, and often does continue after the subject is charged.
4. Utah R. Crim. Proc.
5. Utah R. Crim Proc. 16(c).
6. Utah R. Evid. 404.
7. Utah R. Crim. Proc. 12.
8. State v. Knight, 734 P.2d 913 (Utah 1987).