It’s No Secret: The Destruction of Electronic Data By Law Enforcement Is A Frequent Problem For Criminal Defendants
By Timothy E. Zerillo, Board of Directors, National Association of Criminal Defense Lawyers
Recent reporting by NBC News has indicated that the United States Secret Service destroyed electronic communications following the January 6th capital insurrection, despite requests to hold the data from various sources¹. The Secret Service was notified, in writing, to preserve their agents’ cell phone data. They destroyed the data anyway.
While this might seem outrageous to the public, it is downright commonplace for criminal defense attorneys and those they represent. In fact, the wholesale destruction of communications evidence on agents’ cell phones and elsewhere is something that criminal defendants and their lawyers face with shocking regularity.
Years ago, I was at a social affair with a member of the Department of Justice. He told me privately that criminal defense lawyers really needed to get access to agents’ texts, instant messaging, and social media messages with confidential sources. I have heeded that warning and try to get such messages every chance I get. However, most of the time, after fighting the good fight, the information has been destroyed. When I have gotten the information, it is often a treasure trove of defense impeachment of law enforcement witnesses, confidential sources, and the like. Which is precisely why law enforcement seeks to destroy such information.
For those of you who are blissfully uninitiated to the criminal legal system, this may sound like a problem merely in need of a remedy. That remedy, such as sanctions or the dismissal of the case, is rarely found in the courts, however.
Boiled down to its simplest form, to win a case for destruction of evidence without showing bad faith on the part of law enforcement is very difficult. Under Arizona v. Youngblood, 488 U.S. 51 (1988), bad faith on the part of law enforcement in the destruction of evidence may exist when the police intentionally destroy evidence they know may be potentially useful to the defense. 488 US 51, at 58. Of course, in the case of text messages on personal cell phones, for example, a law enforcement officer merely may say that he or she routinely purges the phone, and courts will often not find bad faith.
There is a wrinkle for the defense if the evidence is exculpatory (meaning, in essence, that it is favorable evidence to the defendant and material to the defense). The United States Supreme Court has held that “[t]he Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.” Arizona v. Youngblood, 488 U.S. 51, 57 (1988); see also Brady v. Maryland 373 U.S. 83 (1963); California v. Trombetta, 467 U.S. 479 (1984). The Court in Illinois v Fisher further explained:
We have held that when the State suppresses or fails to disclose material exculpatory evidence, the good faith or bad faith of the prosecution is irrelevant: a due process violation occurs whenever such evidence is withheld.
Illinois v. Fisher, 540 U.S. 544, 547 (2004).
Much of the evidence on these cell phones is likely impeachment evidence, meaning evidence the defense can use to undermine a witness. The defense lawyer will likely argue that impeachment evidence is exculpatory evidence (see Kyles v. Whitely, 514 U.S. 419, 434 (1995)), and thereby the bad faith of law enforcement does not need to be established. However, in many cases, with many courts, that will not get you over the hurdle. In part, this is because the defense does not know what has been destroyed.
This is particularly true when it comes to text messages and other instant message forms. They can easily be deleted without a trace. On the witness stand, these witnesses often seem to forget about what was discussed in the messages.
The Secret Service claims there’s nothing to see here, in response to Congressional inquiries as to their electronic messages. They claim that their agents do not text each other with any frequency.
While we think of the Secret Service first as the protector to the President, they are really a law enforcement agency. For example, they investigate all counterfeiting related crimes in the United States. To suggest that these particular agents behave differently than all other federal law enforcement agents is absurd. In the bigger picture, their destruction of electronic data and blatant recalcitrance in response to congressional preservation requests is a result of the same attitude that criminal defendants face every day in courts across the country. So, be disgusted, but do not be surprised.
Notes
About the Author
Tim Zerillo is a criminal defense lawyer in Portland, Maine. He serves on the Board of Directors of the National Association of Criminal Defense Lawyers and is a Past President of the Maine Association of Criminal Defense Lawyers. Tim is the author of the book Defending Specific Crimes, published by James Publishing.
