Pictures Within Pictures

When you look through the defendant’s Facebook feed, with his posts stupidly set to public, you see the frozen mind of a teenager.  What if you never got tired of graffiti, dip, and naked women?  What if you thought that posing with your shirt off was cool for the rest of your life?  And he had the loneliness of a teenager too.  His Facebook isn’t full of photos birthday parties, expensive food, or nights out with the boys.  It was one man wandering alone through cargo containers, on post-industrial street corners, and through railyards.  I found myself wondering who his audience was.  They weren’t in the pictures.

The pictures did show the defendant burning things.  Plenty of things in lots of different places.  His case was pending for years before we found the pictures.  I wasn’t there to see his face when he first heard that we had them.  Did he wince?  Did he kick himself for being so stupid?  Or had he seen this coming from far away, only to feel relief that it finally, inevitable happened?

By the time I met the defendant, the case had been through several lawyers on both the defense and the prosecution side.  The defendant (or rather his wealthy parents) had the habit of firing lawyers at a rapid clip.  On our side, the case was so old that people had been transferred on to new assignments; several rotations worth of prosecutors.  But when the case came to me, my number was called, and I tried it.

Defendant was accused of arson, and the defense was mistaken identity.  The defendant had even engaged an expert on mistaken identify.  She had been paid to opine that the witnesses who saw the defendant at the scene were mistaken.  The case had been pending for so long that the expert had written her report and rendered her opinion before we discovered the Facebook evidence.  The court granted an 1101(b) motion to admit the evidence.  We had a witness to another fire in the neighborhood testify that he saw the defendant light a fire and then film it on his phone.  That man took a picture of the defendant, who was, in turn, taking a picture of the fire he had lit.  And on the defendant’s Facebook, we found that very same picture.

The mistaken identity expert didn’t seem to know any of this.  When she got up and testified, I confronted her with the photo of the prior fire.  She had to admit that it was the defendant.  She had to admit that this type of evidence made it more likely, not less likely, that this was not a case of mistaken identity.

One day I’ll be so old that I won’t know where to look for this kind of evidence.  I suspect that Instagram has a ton of evidence, but I haven’t been able to figure it out.  In another case, two people met on a website called MocoSpace.  That’s when I first began to suspect that I might be a little out of the loop.  Backpage was already closed by the time I figured out that it was a gold mine of trafficking evidence.  But at least in this case, Facebook evidence did the trick.  I just need to make sure to keep looking for it.

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