Electronic Evidence Helps Prosecutors Know the Answers to Questions before they were Asked

The Background
You remember the story; Detroit’s former “Hip Hop” mayor, Kwame Kilpatrick was convicted of lying under oath and obstruction of justice in 2008 in a scandal involving city corruption and an alleged affair with a senior staff member. Though he had denied all wrong doing, highly inconvenient text messages were discovered, and before you knew it, the fat lady was singing. The scandal cost an already financially troubled city of Detroit millions. When it appeared the mayor may have had to remove his diamond stud-earring and go off to prison, Kilpatrick avoided prison by pleading guilty and agreeing to repay the city $1 Million in restitution. He was placed on probation.

The Allegations
Now, however, the former rising star is in hot water again, and it is again electronic evidence, no doubt, that was his undoing. It seems that Kilpatrick has violated the conditions of his probation by failing to re-pay the city. When called into court recently, Kilpatrick “couldn’t remember” how much his wife earned in income and he asserted that he is only able to pay the city $6 per month in restitution, despite the fact that he is earning a six figure salary as a software salesperson. There is little doubt that prosecutors with Electronically Stored Information (ESI) in hand knew these answers were false – even before they asked the questions in open court.

The Results
Judges can sometimes have the uncanny ability to sense when they are being lied to, and Judge David Groner of Wayne County is no exception. The Judge ruled that Kilpatrick’s answers to questions in court were “not true” and “amounted to perjury”. The judge also accused Kilpatrick of hiding assets. Kilpatrick was led out of the courtroom in handcuffs, ordered to go to prison, and reminded he must still pay the $1 Million in restitution.

One would do well to remember the old investigator’s axiom:
“Never ask a question of a defendant to which you do not already know the answer”

The Take-Aways

  1. Digital Evidence is crucial: Critical Electronically Stored Information (ESI) can often provide the answers before you ask the questions. Go after this electronic evidence, and use it in advance of depositions or court appearances. Want to observe a shocked and unprepared defendant? Hand him a copy of an email he thought he deleted.
  2. Text Messages are everywhere! Texting has now surpassed E-Mail messages in volume. Remember this critical ESI when conducting investigations.
  3. ESI can help investigators and attorneys “follow the money” Especially in cases in which asset hiding is suspected, ESI becomes an important tool in reconstructing the financial path taken by those assets.