July 2019

Ten years have passed, and the annual Texas Criminal Defense Lawyers Association Declaration readings are now a valued tradition throughout the Lone Star State. Perhaps it is time for reflection on how this began, why we do what we do on or before Independence Day each year, what it means and what it does not mean.

The first reading was in Houston on Thursday, July 1, 2010. The Harris County Criminal Lawyers Association was involved in an ongoing struggle with abusive judges. The struggle led to the filing of judicial misconduct complaints against some of the judges.

As an act of protest against tyrannical judges, Robert Fickman organized a reading of the Declaration of Independence at the Harris County Courthouse. Seeking no permission, 15 criminal defense lawyers gathered in front of the courthouse. As an act of protest and disrespect, they turned their backs to the building and read the great document with firm resolve.

They felt electrified and empowered by the reading, and similar readings slowly gained traction across the state. In 2016, readings were organized in all 254 Texas counties in honor of the 240th birthday of the great document. Last year, the readings were highlighted by a poignant reading held at the children’s immigration tent city at Tornillo.

That’s how the Houston readings started, but why do the rest of us continue the Houston tradition, and where do we go from here? The historical context of the Declaration leads us in the right direction.

The Declaration of Independence has been called one of the greatest documents ever written, but it is certainly imperfect.

One paragraph is particularly unfair and offensive to Native Americans. “He has excited domestic Insurrections amongst us, and has endeavoured to bring on the Inhabitants of our Frontiers, the merciless Indian Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions.” Native Americans were totally subjugated to U.S. power about a century later.

The drafters of the Declaration envisioned a new order among the 13 colonies, but they did not include women in their vision. In Colonial America, women were pushed to the sidelines as dependents of men. Married women were under control of their husbands. Following the Revolutionary War, under the laws of the new United States, women were denied property rights, lacked the ability to vote. and could not make or enter into a legal contract. More than a century passed before women were granted the right to vote, and the struggle began for truly equal gender rights.

The Declaration promised life, liberty, and the pursuit of happiness to all, yet that promise did not apply to the thousands held in slavery across the Colonies.

Frederick Douglass eloquently addressed this dichotomy in his famous speech of July 5, 1852 (refusing to speak on July 4), dedicating the new Corinthian Hall in Rochester, NY:

What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? And am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us?

I say it with a sad sense of the disparity between us. I am not included within the pale of glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought light and healing to you, has brought stripes and death to me. This Fourth July is yours, not mine. You may rejoice, I must mourn.

What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy —a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.

This year, TCDLA Declaration reading founder Robert Fickman also reflected on the Declaration’s shortcomings in his introductory remarks to the Houston reading:

In 1963, Dr. Martin Luther King observed, when the architects of our Republic wrote the Declaration, they were signing a promissory note to which all Americans were to fall heir. This note was a promise that all men would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness. Dr. King eloquently observed “It is obvious today that America has defaulted on this promissory note.”

Now, in 2019, insofar as minorities and the poor are concerned, America continues to be in default. On a daily basis, in these courts, minorities and the poor continue to find their liberty stolen.

As defense lawyers, it is our duty to fight those who would deny others their liberty. So, we read the Declaration as a reminder that as a nation, our work is unfinished.

Let us work together toward that day when the promises of the Declaration are a reality and not a dream. Let us work toward that day, when all Americans have the Declaration’s guaranteed unalienable rights to life, liberty and the pursuit of happiness.

When reading the Declaration and celebrating our independence from Britain, we should keep in mind Frederick Douglass’ hard truths and Dr. Martin Luther King’s admonitions. We must not forget our founding forefathers’ shortsightedness and the shortcomings of the Declaration. Instead, these issues should be confronted head-on and directly.

In future readings, we will encourage organizers to stress that the Declaration freed not one slave, offered not one woman the right to vote, and recognized the human rights of not one Native American. Yet the Declaration spawned the US Constitution, the Bill of Rights and the American rule of law that eventually began to address these shortcomings.

Freedom, self-reliance, patriotism and protest are concepts all Americans embrace. The Declaration embodies and represents these concepts. Criminal defense lawyers everywhere understand how these themes evolved from the Declaration to the Constitution to the Bill of Rights and beyond.

In our daily work, we often speak of these themes, in jury selection, final summation and in other legal settings. We hope our listeners will understand and accept our reverence for such concepts and apply them accordingly in making decisions. But we all know it is not so. Judges, juries and prosecutors often carelessly and casually cast aside the rule of law in making decisions, as do politicians and lawmakers, and we are the ones who must attempt to pick up the pieces on behalf of our clients.

Organizers of future Declaration readings should reach out to those slighted by the Founders—African-Americans, women, Native Americans—and invite them to participate. Organizers should also explain to their audiences the reasons the Declaration is not a perfect document and how we should all strive to overcome those imperfections.

So, why do we read? Because John Adams told us to kick up our heels on July the 4th! Our readings are a part of an American tradition Adams foresaw in 1776:

I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance by solemn acts of devotion to God Almighty; it ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires and illuminations from one end of this continent to the other, from this time forward forever more.

Why do we read? It is to call public awareness to the meaning of Independence Day, to celebrate its historical significance, to celebrate the principles we as criminal defense lawyers use every day in courthouses across the land, and to call attention to the value of public protest then and public protest now. It is to encourage our listeners to employ our heritage and the rule of law in their lives.

Why do we read? The readings are probably the best public relations tool for our great organization and its many affiliates and individual members. By reading the Declaration, we are educating the public that we, the criminal defense bar, are our Founders’ heirs. We alone fight to secure the liberty referenced in the Declaration. We are the living part of the continuum. We are the point of the spear, fighting daily to maintain the individual rights our Founders fought for.

And, we read because it is such great fun! It is an opportunity for us to feel good about ourselves and what we do for living, to show off in front of our families and our local folks, to get our picture in the paper.

With firm resolve, we will do it again next year.

My client, John, walked out of Bell County district court with his “freedom papers”—his words, not mine. John’s road to freedom spanned some 13 years. Back in 2006, John was arrested for possessing cocaine during a raid on a drug house outside Fort Hood. He was another homeless, jobless Army veteran with an incipient addiction. He’d meritoriously served 3 combat tours in Kuwait, Iraq, and Afghanistan. He was never evaluated for PTSD. He’d never been arrested before 2006.

Back then, he couldn’t make bond and wanted to get out of jail, so he pled guilty and agreed to be placed on probation. The judge put him on deferred adjudication probation for 6 years. Six years. Probation is no cakewalk. He had to report once a month to the probation office. He had to pay fees, fines, and court costs adding up to a couple of hundred dollars a month. He had to work off 300 hours of community service, complete (and pay for) an outpatient treatment program, attend 12-step meetings, finish several other classes, observe a curfew, and find a job, a place to live, and a ride. He didn’t have a clue how to access his VA benefits.

It was a setup for failure for John but a better option than going to prison. He got out and he tried, but six years can seem like an eternity when you’re that far behind. Within six months he gave up, started using again, left Texas, and roamed from state to state. Meanwhile, the county filed a motion to revoke his probation, and an arrest warrant was issued. But Texas wasn’t really looking for him, and John was living in California.

Fast-forward to 2019. John’s caregiver, Susan, called my office in a panic. She told me that the VA stopped his benefits because he was a “fugitive from justice”—they’d found the arrest warrant. Over the years, VA rated John 100% disabled, but this was their opportunity to cut him off. They stopped his disability check. The VA refused to authorize future payments for his medication and counseling for severe, chronic PTSD with dissociative features, anxiety, and anger issues. He wasn’t a danger to others, but he was a danger to himself without the meds and treatment.

John and Susan had no idea that Texas issued an arrest warrant. Susan didn’t know he’d been on probation in Texas. John had forgotten about it. They tried to work with the VA, but how do you reason with a bureaucratic monolith?

Susan worked with me to obtain his DD214, military awards, commendations, character letters, VA disability rating letter, and letters from psychiatrists and providers describing his mental health diagnosis as well as treatment and medications.

I initiated contact with the District Attorney’s office to try to get the warrant removed and the probation discharged, but as the prosecutor would later tell the judge, “Ms. Harrell has her job to do and I have mine.”

I gave the prosecutor the lengthy packet documenting John’s service, awards, disability rating, and severity of his mental health issues. The prosecutor verified that John had not—not—been arrested again during his 13-year absence from Texas. But the prosecutor pointed out that John did not complete any of the probation requirements and was classified as an “absconder.” He said his hands were tied and he didn’t feel good about it.

My client was now between a rock and a hard place. Stay in California with an open warrant and no VA benefits or return to Texas, go to jail, and leave his fate to the judge.

My client chose to return to Texas. So, Susan drove John back and he turned himself at the county jail on a Sunday. They brought what was left of his five different medications. The jail was administering them once a day, though he was supposed to get his anxiety meds four times a day. Still, John was holding it together.

Four days after his return, we held his probation revocation hearing. My client would break under the stress of testifying, so I called Susan to testify. She’s a lovely woman. She’d gone to Goodwill when she got to town to buy an outfit for court. She brought it by the office seeking our approval the day before the hearing. She looked sharp.

It’s important to understand that Bell County is home to Fort Hood, the largest military installation in the U.S. Our soldiers have been serving in armed conflicts since 2001. Rather than engendering sympathy, our judges and prosecutors have become inured to the “PTSD defense.” Sympathy has been replaced by skepticism and frustration. I had to prove to the judge that John wasn’t “playing the PTSD card” as an excuse.

Susan took the stand. She told the court that she and John were adopted into the same family in California but were years apart in age—about 15 years. John was born to a drug-addicted mother whose parental rights had been terminated. She described her brother as a good kid, even a happy kid, who was eager to join the Army. She said that after John got out of the Army he wandered for a while, and they lost touch. But finally, John made his way back to California, and she knew right away he was in trouble. She got him into VA for evaluation, diagnosis, and treatment. Susan even completed the National Caregiver Veteran Training Program offered by VA so she could better assist John. He’s been living with Susan for 4 years.

She said treatment and medication made a huge difference for John, though he still has outbursts from time to time. She explained to the court that on one occasion family and friends were gathered for a backyard barbecue and something triggered John’s PTSD. He started yelling and turning over tables. They called the police, who took him to the hospital to get help. Susan testified that John has not used drugs or alcohol while he’s been with her, and that he goes to all his VA appointments and takes his meds.

Susan testified through her tears that “the Army broke him.” Susan is an army veteran, too. Susan is very proud of her military career as a cook and her service to her country. But she testified that “the Army broke him.” The packed courtroom sat silently through her testimony.

I simply asked the judge for mercy. A lot to ask. In my remarks to the judge, I couldn’t help commenting—out loud—that California must be a liberal state because when their wounded vets act out, the local police take them to the hospital not jail.

I asked the judge to dismiss the probation revocation and release my client from jail that day. I made the obvious arguments, but of course it had to be said. It benefits no one to keep John in jail for any length of time and would grievously set back his mental health recovery. I gave the same packet to the judge that I’d given to the prosecutor documenting John’s meritorious military service and severe mental health issues.

The judge struggled with his decision He did not want to appear to be rewarding “bad behavior” since there were plenty of other defendants in the courtroom, many of them veterans. After all, my client possessed cocaine then fled the state while on probation. He did do that; he violated the law. John had been dealing with his undiagnosed PTSD by using cocaine. After he stopped using and got the help he deserved and earned through his military service, he turned himself in on the warrant and was prepared to face the consequences.

In the end, the judge did dismiss the probation revocation and dismissed the underlying felony drug charge. John was released from jail that day and did not have a felony drug conviction on his record. Susan drove John back to California to get his VA benefits and care reinstated.

Susan kept hugging me with tears in her eyes before she left the courthouse. John uttered a huge sigh of relief and thanks before they led him out of the courtroom.

While they live on a modest budget, they made a point of sending chocolate and cake to the office as thanks. God knows they needn’t have done it. My associates, assistants, and I sure did appreciate it and the affection that came with it, though.

The 86th Legislature adjourned sine die on May 27th, 2019. Since the Governor, Lieutenant Governor, and Speaker of the House have indicated the Legislature passed every “critical” bill during the regular session, it is not anticipated Governor Abbott will call a special session. Although the primary focus of the 86th Legislature was school finance and property tax reform, legislators found time to pass a number of criminal justice reforms.

In the area of criminal justice, numerous bills related to human trafficking were filed. The Legislature increased penalties and created some new offenses under the guise of fighting trafficking. A bill giving the Attorney General concurrent jurisdiction with local District Attorneys on trafficking cases did not pass. Numerous attempts to change the Texas Rules of Evidence on sexual assault and trafficking cases failed.

While there were many more bills altering the Penal Code and Code of Criminal Procedure, the following 25 bills are the ones most likely to have an effect on the day-to-day practice of criminal law beginning September 1, 2019:

1.   SB 2136: Expands the “nature of the relationship” evidence by the defense. This amendment to CCP Article 38.471, which formerly applied to just cases of domestic violence, now applies to all offenses and still applies to both parties. In cases where a defendant is arrested for actions in response to something that happened earlier (but often precluded from admitting this evidence), this statutory change allows for the types of defenses where the nature of the relationship is critical to understanding what prompted the behavior. A good example of this would be a battered woman’s defense in a murder prosecution. The statute broadly states that “each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.”

2.   SB 346: Changes the allocation of court cost revenue to fund indigent defense. Less of the money paid by defendants will go to breath alcohol testing, law enforcement management, and retirement, Texas Commission on Law Enforcement, and crime victims’ compensation, leaving approximately 20% of all court cost revenue going to the fair defense account.

3.   HB 2048: Repeals the Driver Responsibility Program. This bill eliminates the DRP as of 9/1/2019, meaning any unpaid surcharges on the effective date will no longer be an obligation, and every driver with a suspension on the effective date will have it lifted. It is estimated a million Texas drivers will have surcharge suspensions lifted on their license then, and no reinstatement fee will be required to be paid by the driver. As written, the bill provides for what is basically a new “fine” for DWI-type convictions on or after September 1; however, no insurance tickets and DWLI are included in this new “fine.” There is no provision for a driver’s license suspension going forward in any circumstance, and the bill provides for an indigency determination to be made by the sentencing judge. There are obvious questions regarding the constitutionality as well as the application and collection of this new “fine” structure.

4.   HB 1279: Clarifies and corrects the references to the effect of parole in jury charges. The current charge is factually incorrect in that it indicates a sentence may be reduced by parole—as opposed to the bill correctly stating that the term of imprisonment may be reduced. This bill eliminates all references to good conduct time.

5.   HB 3106: Sexual Assault “investigations” must be entered into the Violent Criminal Apprehension FBI database, listing the suspect’s name, DOB, specific offense, description of manner in which committed, and any other information required by the FBI for inclusion.

6.   HB 1399: Mandatory DNA sample from defendants now applies post-arrest instead of post-indictment.

7.   HB 8: Starting in 2021, DNA evidence from sexual assault cases must be analyzed in 90 days.

8.   HB 8: The Statute of Limitations is eliminated for sexual assault cases where biological matter is collected and the material has not yet been subject to forensic testing or where there is no DNA match.

9.   HB 2758: Indecency with a child by exposure to a child under 14 is added to the list of offenses for which the defendant is not eligible for probation from a judge or a jury. (Indecency by contact was previously on this list.) Human trafficking, continuous human trafficking, aggravated promotion of prostitution, and compelling prostitution are added to this list and are not eligible for deferred adjudication.

10.  HB 1343: This bill requires an attorney for the State to file an application for a protective order on certain offenses following conviction or placement on deferred adjudication, unless one has already been filed by the alleged victim.

11.  HB 1325: Establishes the Hemp Farming Act to regulate the commercial production of hemp and clarifies the Legislature’s intent that the state have primary regulatory authority over the production of hemp and hemp products in Texas. Any promulgated rules regarding cultivation of hemp must comply with federal law. Hemp is defined as follows: the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis (Title 5, Agriculture Code, Chapter 121, Section 121.001). Section 481.002 of the Health and Safety Code now states hemp or the THC in hemp is not included under the Section (5) definition of a controlled substance, and Section (26) excludes hemp from the definition of marihuana. This bill is effective as of June 10, 2019.

12.  HB 1342: Eliminates the blanket prohibition on professional licenses due to a past criminal conviction. This bill removes as grounds for disqualification for a professional license a conviction within the past 5 years for an offense not directly related to the licensed occupation. The intent of the legislation is to enhance opportunities for a person to obtain gainful employment following conviction and discharge of the sentence.

13.  HB 1631: Prohibits the use of red light cameras of Texas. This bill is effective as of June 2, 2019.

14.  SB 21: Raises the age to purchase tobacco to 21 except for military personnel. Everyone under 30 must show ID for purchase.

15.  HB 3582: For the last 16 years, the Legislature has been considering a bill to allow Deferred Adjudication for DWI cases. The 86th Legislature passed a version that operates as follows: Deferred is available only for first-time offenders with a BAC of under .15, and this may be non-disclosed upon receiving a discharge and dismissal. For enhancement purposes, a DWI deferred is treated like a conviction similar to assault–family violence cases. The bill provides an ignition interlock device is required on DWI deferred unless the judge waives it following an alcohol/controlled substance evaluation. In comparing HB 3582 and HB 2048 (#3 above), HB 2048 assesses the new “fine” against individuals who have been finally convicted of a DWI offense, which is arguably not the case for a person who opts for a deferred adjudication under HB 3582.

16.  HB 1760: Lowers the age regarding the right to seal records to age 17 (or after one year has elapsed from final discharge) in juvenile cases.

17.  SB 194: A new offense of indecent assault has been created, carrying Class A misdemeanor punishment. Legislative intent is unwanted groping of someone 17 years and older cannot be adequately addressed with the maximum penalty of a Class C misdemeanor. Bill includes language “without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person.” This bill is effective January 1, 2020.

18.  HB 2789: Another new offense creates a Class C misdemeanor when one unlawfully transmits sexually explicit visual material, which is described as “any person engaging in sexual conduct or with the person’s intimate parts exposed; or covered genitals of a male person that are in a discernibly turgid state and not sent at the request of or with the express consent of the recipient.”

19.  SB 20: Creates the new offense of Online Promotion of Prostitution. The penalty is a 3rd-degree felony but can be a 2nd upon prior conviction under this section or if conduct involves a person under the age of 18.

20.  SB 20: Creates the new offense of Aggravated Online Promotion of Prostitution. The penalty is a 2nd-degree felony but can be a 1st upon prior conviction under this section or if conduct involves a person under the age of 18. “Aggravated” in this context refers to the intent to promote the prostitution of five or more persons or facilitating five or more persons to engage in prostitution.

21.  SB 719: Adds Section (9) to Penal Code Section 19.03 and makes it a capital offense to murder an individual 10 years of age or older but younger than 15. However, the death penalty may not be assessed upon conviction.

22.  HB 37: Creates a Mail Theft statute in Penal code section 31.20. A “porch pirate” amendment was added to this bill on the House floor, which states the person appropriates mail from a mailbox or a premises. Note: Consider 18 U.S.C Section 1708 for preemption strategy.

23.  HB 98: This bill is an attempt to rewrite Penal Code Section 21.16(b), which is commonly known as the “revenge porn” statute. The 12th Court of Appeals struck down this law, and it is pending at the CCA. The new language specifies a person commits a civil or criminal offense if, without consent, an individual intentionally discloses intimate visual material with the intent to harm the depicted individual.

24.  HB 121: Creates a new defense for a person with a CHL who promptly departs a premises prohibiting handguns. The bill is intended to address the situation where a CHL carrier mistakenly carries a handgun onto a premises prohibiting such, but who promptly departs after receiving notice to depart.

25.  HB 2524: Amends Penal Code Section 31.04 to create a presumption of theft of service. However, the bill provides that the term “written rental agreement” does not include an agreement permitting an individual to use personal property for personal or household purposes, which is automatically renewable with each payment and permits the individual to become the owner.

This list of 25 bills is not every bill affecting the Penal Code or Code of Criminal Procedure. TCDLA members will have access to a complete and detailed explanation of every such bill during the summer of 2019. The undersigned TCDLA lobby team would like to thank the TCDLA Legislative Committee, Executive Committee, and every TCDLA member who helped us during this session.

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Digital Forensics can be a difficult boat to master. There are many ropes to learn, several courses to choose from, and without local knowledge, you don’t know what lurks in the unchartered seas ahead. What must one do in these days of digital ubiquity to ensure the safety and success of your client, boat, and yourself? Please listen up.

Where once the Digital Forensics (DF) examiner would process 20 computers per cell phone, those numbers have inverted. Now, to be the best criminal defense attorney you can be means always considering cell phones. They can be critical.

In 2014, 18-year-old Greg Kelley was charged with a child molestation crime, found guilty, and sentenced to 25 years with no parole. Three days after his conviction, his appellate attorney, Keith Hampton, sent us his iPhone. We learned that neither the defense nor the prosecution examined his phone prior to trial, so we decided to examine it that same day. From our initial findings it was clear that Greg’s phone was 180 degrees opposite a pedophile’s phone. His phone was not riddled with the “child love” advertisements and suspicious chats we normally see. There were not hundreds of hours of YouTube videos portraying young children. In fact, we saw the opposite and immediately notified Keith. While no one knew it then, that information became the “kickoff” for Greg’s new trial three years later. In August 2017 the new judge found Greg to be “Actually Innocent.” After 18 months, the Texas Criminal Court of Appeals still must rule to affirm, or perhaps deny, the lower court’s ruling. Meanwhile Greg and his fiancé tell us that they are planning their wedding and trusting in God.

Of course, not all cell phones have an immediate impact. Still, being mindful of the immense amount of data that phones contain, you should preserve that data for future use. Allow your DF expert to create forensic evidence files and store the phone in accordance with NIST-certified procedures. Today’s solid-state memory chips will store their data for at least five years after the batteries have been fully discharged.

Another aspect of cell phone usage needs preservation. They are “Call Detail Records” (CDRs), which provide details such as dates, times, numbers of the called and calling parties, as well as additional critical data. They offer a great amount of important data.

CDRs are a billing and usage record. As such, they usually only note events that cost money. For example, if a Voice Over Internet Protocol (VOIP) call is made over a business system offering free VOIP calls, then that call may not be listed on the CDR. If it is not listed, then that data must be retrieved forensically from the VOIP system.

Each carrier has its own procedure for preserving CDRs, but they all involve transmitting a preservation request to the phone’s carrier. Do it early before the carrier automatically purges that data. Some carriers purge early on, some later, but don’t take a chance. We often send preservation requests in our cases. Furthermore, the admin of a business service VOIP system can provide their own VOIP CDRs if allowed. If the admin is not allowed, then subpoena.

If you have saved or otherwise retained the digital data, your DF expert will also be able to perform a link analysis to tie everyone together. Names, phone numbers, calls, texts, and more will be analyzed and linked, allowing you to visualize relationships that were previously hidden within the background chatter. CDRs can also contribute greatly to creating a link analysis.

There are two different messaging formats that interact via your phone carrier on your cellular phone. One format is the familiar Short Message Service (SMS), and the other is the Multimedia Messaging Service (MMS)—both in use since the 1980s. Another, newer format is the Over The Top (OTT) messaging applications.

OTT messages travel via the internet. If someone does not pay their bill, and thus loses cellular service, he can still send messages by utilizing OTT apps and a wifi connection. OTT apps include “WhatsApp,” “WeChat,” “Viber,” “Telegram,” “BBM,” and many more.

OTT message content and metadata does not appear on CDRs and must be acquired from the phone or the specific application’s own servers. Some OTT apps allow for retention of the message content on the device, but many OTT apps retain the message content only on the OTT app’s servers.

Additionally, for most OTT apps, users may decide to retain the message content by saving the message to their own phones. If the user elects to do so, then we can recover those messages as well. If the user’s OTT message content is retained on the OTT app’s servers, then recovery requires a subpoena.

We recently closed a case involving a young man accused of sending violent and threatening text messages to his former girlfriend. In her effort to obtain a TRO, the ex-girlfriend contacted law enforcement. She then swore out an affidavit for the arrest of her ex-boyfriend. During that process she showed the LEO her cell phone with the violent texts. They all indicated the ex-boyfriend’s number as the sender. The TRO was issued and, due to the threats of violence, the judge required our client to wear a GPS device. When we began this case, he had been wearing it, and bearing the associated expenses and embarrassment, for two years.

Our investigation almost immediately proved that the ex-boyfriend could not have sent the SMS text messages. His phone had its carrier’s cellular capabilities “disconnected” about six months before the threats began because he could not pay his bill. He did send her three messages via an OTT app, but these messages were telling her to stay away from him. The image shown above is from DF software by Magnet Forensics. It is an industry standard product and NIST certified.

When the ex-girlfriend was confronted with our evidence, she admitted to using a spoofing app to send herself the threatening text messages from another phone. Our client, after more than two years, got his GPS bracelet removed the following week. His attorney was successful in getting all the charges dismissed.

Ours is a science relying heavily on the foundation of the scientific method. Any DF expert you choose must be well-qualified, certified, and licensed in Texas. Some of the leading forensic software tools are produced by companies like Magnet, Cellebrite, Access Data, EnCase, FTK, Blacklight, Autopsy, Oxygen, and others. Make sure that your expert is certified on the tools they use.

Also, be sure that your expert is using hardware and software tools certified by the National Institute of Standards and Technology (NIST). NIST tests and certifies write blockers, disc duplicators, and multiple packages of DF software tools. If not, you might have trouble on your doorstep. Everyone should remember one of the original computer science acronyms— “GIGO.” It stands for “Garbage In, Garbage Out,” and while it is not as prevalent as it once was, it remains just as relevant.

There is one DF software tool all defense attorneys must be familiar with. It is the most commonly used DF tool for LEOs and agencies worldwide. It is called “Cellebrite.” While Cellebrite is not best at recovering all data, especially the new chat and message apps that continue to enter the cell phone market, it is undoubtedly best for recovering the most deleted data. If your DF expert can combine Cellebrite with Magnet’s Axiom, or IEF software, then you will have truly done your complete DF due diligence.

I’ve seen Cellebrite work against my own efforts, and it’s difficult to underestimate the dangers of being uninformed—enough so that we happily spent $15,000 to acquire it. If your DF expert does not own Cellebrite, then consider bringing in a consultant who can provide your expert with a Cellebrite report. It may raise the cost, but when your client is innocent, it is a bargain.

We hope this helps you as you begin to navigate through some of DF’s unknown waters and dangerous shoals. As all seas evolve over time, so does this ocean we call digital forensics. We will post additional articles this year to help keep keep your boat righteously sailing in tropical winds with following seas. We would love to have your questions. Please send them to .