Client freed after 3 decades in prison

In July 2014, client Victor Rosario was freed after spending 32 years behind bars for a 1982 arson fire that killed eight people. A Middlesex Superior Court judge overturned Victor Rosario's one arson and eight murder convictions based on advances in arson forensics as well as major errors in the handling of the investigation, including interviews done with witnesses and Rosario himself.

Lawyer liable for Ponzi scheme of client?

A MA Superior Court judge has ruled that the law firm Holland & Knight could not be sued by investors for failing to ensure that one of their clients followed their legal advice (the client ignored his lawyers and proceeded to defraud the investors in a Ponzi scheme--not exactly in keeping with counsel’s advice).

Holding here in essence: lawyers are not mothers and will not be held liable for failing to scold and nag until the job is done well.

MA high court: high court rules warrant needed for cell phone search

In an interesting cell phone data privacy case, the Supreme Judicial Court of Massachusetts held that law enforcement must obtain a warrant before using a suspect's cell phone data to track his movements via GPS. SJC held a warrantless search violated Article 14 of the Massachusetts Constitution, which bars unreasonable searches and seizures.

The plaintiff in the case, Shabazz Augustine, was a suspect in a 2004 homicide of his girlfriend. Police obtained his cell phone records from Sprint that showed what towers were used as he traveled in Boston. Police relied on a federal law that only requires “information to be relevant to an investigation” in order to get the data, as opposed to requesting a search warrant (and having a judge find probable cause regarding the target’s involvement in the case).

Practically speaking, the case is somewhat dated: police in most criminal cases now request warrants for such data anyway.

Did JPMorgan Chase know Madoff ran Ponzi scheme?


A lawsuit filed in federal court in Manhattan last week on behalf of shareholders alleges Chief Executive Jamie Dimon and 12 other current / former executives and directors were aware of the Bernie Madoff Ponzi scheme:

“The lawsuit said JPMorgan examined reports that Madoff was required to produce on the late Norman Levy, a former client of JPMorgan and Madoff, and that the reports gave the impression that Madoff was not investing Levy's money or lending him money on margin. Shipley and Lipp would meet Madoff for lunch from the 1990s through the 2000s, frequently along with Levy, and raise their concerns, the complaint said. But in the end, the bank was "petrified" of losing business from Levy, "an extremely important, preferred top-tier client" of its private banking unit, the complaint added.”

Google: we will invade your privacy

In a blunt admission in a brief filed recently in federal court, lawyers for Google said people have no expectation of privacy when they send messages to a Gmail account.

Google’s brief said: “Just as a sender of a letter to a business colleague cannot be surprised that the recipient’s assistant opens the letter, people who use web-based email today cannot be surprised if their emails are processed by the recipient’s [email provider] in the course of delivery. Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’

A highly redacted version of the complaint was filed publicly.
 http://www.consumerwatchdog.org/resources/googlemotion061313.pdf

Privacy and NSA's three hop query

President Obama continues to talk reform after pervasive and ongoing criticism of the bulk surveillance of U.S. citizens revealed by Edward Snowden. One of the more interesting points is the creation of a public advocate who would defend a citizens’s right to privacy in the court. Yet the administration’s defense of the current system, where supposedly limited information is seized--the widely discussed “three hop query”--ignores a basic tenet of investigative research: data trees allow the identification of millions of people in a 2-3 hop query.

Facebook leaked data all over internet--including non-users

Security researchers who revealed Facebook's shadow profiles vulnerability are claiming that Facebook leaked massive amounts of data, including private phone numbers and other personal data--despite what Facebook told its users.

Facebook had announced the fix of a bug that inadvertently exposed the private information of over six million Facebook users. In addition, Facebook apparently is collected non-user phone numbers and email addresses and then matched the data to people. Here is the technical explanation of how data gets merged over several sets of databases, and unique links are discovered.

Knowing the information industry, I expect that this data will be for sale very shortly.

Predatory publishers list

A list of questionable, scholarly, open-access publishers, also known as “predatory publishers” is listed here. www.scholarlyoa.com is run by Mr. Jeffrey Beall, a librarian at Auraria Library, University of Colorado Denver.

Numerous “expert” witnesses have taken left hooks and straight jabs to their reputations for publishing in these kinds of journals, which often have no peer review, no identifiable editor, etc. They do, however, often feature clever use of the word “International.”

The write investment: author wins millions from advisor

Mystery author Patricia Cornwell won $50.9m from financial advisor Anchin, Block & Anchin LLP. We have investigated these cases before for financial services clientele, usually focusing on claims of negligent trading and breach of fiduciary duty (and whether the client is getting trading tips elsewhere and acting on them). These cases often stem from the discrepancy between the signed documents that spell out a client’s investment goals, and trading done in later years that might diverge from that plan. A wise advisor should make sure they amply document the client’s goals, and consent to trades.

Use of lies and deception during interrogations

The Reid Interview folks offer some thoughts on using deception during interrogations. The article cites case law such as Frazier v. Cupp, 394 U.S. 731 (1969) (which holds the use of deception must be considered within the totality of circumstances when deciding the admissibility of a confession) and Cayward v. Fl., 552 So 2nd 971 (1989) (which compares and contrasts manufacturing evidence and false verbal assertions).

Some recent research of how innocent people may confess to crimes they did not commit makes this an area worth close monitoring, and points to the ed

Federal prosecutors and abuse of power

The news is filled with frantic claims of abuses by federal prosecutor Carmen Ortiz in the Aaron Swartz case. Some more measured claims are made by retired judge Nancy Gertner.

Now, many privacy and security experts are demanding that Congress rein in prosecutors from overcharging defendants under new federal statutes that allow them to inject steroids into minor charges and blow them into major felonies. But the inquiries into the federal justice system should not stop there.

In December 2012, USA TODAY reexamined some of the conclusions of a 1990’s PBS Frontline investigation that shone a spotlight into the dark corners of the snitch system, where federal agents offer deals to prisoners in exchange for information. Both inquiries show that the government regularly pays witnesses to testify--a concept that instinctively seems immoral and wrong to most people. Paying for information is a blatant perversion of justice and leads to lazy and careless work by federal law enforcement.

~ Our office has defended cases where a few hours of research completely debunked the information provided by another inmate--claims that seemingly were accepted by federal agents without any vetting.

~ The rewards paid to informants can include cash, airfare and new housing. Sometimes, the amount paid for information can approach $250,000 or more.

This system of paying witnesses for false information is a cancer in our democracy. Let us now eradicate it.

MA high court: no privacy in recent call list

The Massachusetts Supreme Judicial Court ruled that police do not need a warrant to search the cell phone call history of a person arrested in connection with a crime. The court ruled that police have long been allowed under the Constitution to search for evidence of a crime on the person and their belongings when the person is in custody.

“The limited search of the recent call list on the defendant’s cellular telephone was permissible under both the Fourth Amendment and [Article 14]’’ of the state’s Declaration of Rights...” The list of calls made from a cell phone therefore has no expectation of privacy in that setting.

The court specifically left open the question of whether, if the phone seized had capabilities of storing text messages, emails, browser histories and photographs, those data troves are also searchable without a warrant: “We do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device.’’

Other state courts have gone the other way on this question and a Supreme Court ruling will be needed to clarify the growing murk. The Mass. case is COMMONWEALTH vs. Demetrius A. PHIFER. SJC-11242 and full text is found here

Body language and lie detection

Here at the office, the staff has become quite adept at looking into people’s eyes and telling when they are lying. Not the sort of thing that makes you popular at parties, and poker games tend to devolve into bloodbaths, but lie detection comes in handy in the detective business.

The Center for Nonverbal Studies Gestures in Spokane WA has compiled a dictionary of Signs & Body Language Cues to get you started. Final exam will be reading the face of Bill Belichick.

Subpoena to Google, Yahoo and others

As we field more calls on electronic discovery, recall that federal law prohibits electronic communication services from disclosing “contents of a communication” [18 USC 2702] which most courts deem to be the text of the email or text message. Facebook, Myspace, Twitter and Linkedln as well as email providers such as Gmail, Yahoo and Hotmail all fall in the this category.

A criminal subpoena may get you even the content of messages (and we get this material either from the electronic communication service providers -- or from the prosecutor) . However in a civil case, you can subpoena only basic information such as the name of the user of the account and other identifiers.

A court in Connecticut also explored a new avenue: divorcing parties may be ordered to exchange Facebook and dating site login and passwords.

Crime fiction Telegraph Hill is released

Delighted to announce my crime novel, Telegraph Hill, was selected to be one of the featured books in the launch of www.libboo.com, a new eBook publishing venture.
Book reviews are here.

If you enjoy noir crime novels in the vein of Dennis Lehane, James Lee Burke, and Raymond Chandler, feel free to stop by and take advantage of special pricing-- all for less than a mocha coffee, or 2 beers at your local dive bar. You can also preview it with a free download.

Subpoenas and court orders to Facebook

We continue to get questions on what records can be obtained by subpoena or court order to Facebook. Generally, only a criminal case subpoena or court order will result in Facebook complying. In that case, we have seen all kinds of data turned over: photos, wall posts, photos uploaded to a page, lists of Facebook friends. Perhaps most intriguing and helpful is login and IP address data--which can be linked to physical addresses in some other private databases that we (and most PIs) subscribe.

Note that while these subpoena’s are most often sent by law enforcement, a defendant is entitled to the same data (just not in expedited fashion like an on-going investigation might require).

According to Facebook’s Law Enforcement and Third-Party Matters (not easily found on the site, in Facebook’s typical sloppy manner): “Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”

Massachusetts medical malpractice

The state of Massachusetts recently passed a health care bill that has an intriguing medical malpractice angle: the disclosure, apology and offer clause, which prompts health care providers to give information to patients about medical errors in a timely manner and offers a timeframe for an apology and offer of damages. An apology has been shown to be an incredibly important part to a process that too often lacks any emotional depth. One intriguing section in the bill might be an area for future litigation: a doctor's (or hospital’s) apology is inadmissible in future court proceedings unless the doctor says something later that contradicts the apology.

Wrongful convictions and Chicago Police-

Good piece on National Registry of Exonerations report that shows Cook County, Illinois leads the nation in documented wrongful convictions. The great majority of those cases -- 67 since 1986 -- were handled by the Chicago Police Department.

As the article notes, “That’s a number to be ashamed of. There are 67 cases in which the Chicago Police collected "evidence" of serious wrongdoing against a person who turned out to be innocent....More shocking still is this fact: the Chicago Police Department has never conducted an investigation, filed disciplinary charges or imposed discipline on a single police officer for negligence or any other form of wrongdoing in a single one of these cases. (Chief) Gerry McCarthy and his predecessors just don't care.”

Misguided CORI reform

Massachusetts today unveiled its new iCORI system for criminal background data. According to the Boston Globe, some community groups want to cut off access to this data, citing problems with investigators who go to courthouses and obtain original records with additional information about the crimes.

These groups are attacking the very procedures recommended under federal law and by industry experts to avoid mistakes in background checks. In effect they want to ban users of iCORi who search out original documents. In effect, they want to forced employers to act on a dry sparse records for fear that, say details about, say a habitual offender who seems to prey on women, should come to light.

Forensic experts: a pervasive lack of national standards

This article sums up the problem with the lack of national standards for forensic experts. While organizations like American College of Forensic Examiners International Inc. purport to test forensic experts, according to the article many of these “colleges” award certificates after testers take brief online examinations--sometimes written by people with no background in the field: According to the article:

“Other former employees said it was routine for low-level staffers to write exams for ACFEI and its related organizations based on textbooks in subject areas in which they had no expertise.

Tania Miller worked for six months as chief association officer for the American Psychotherapy Association, an ACFEI sister group, beginning in fall 2010. A few weeks into her job, she said, she was asked to author an exam to certify forensic counselors. Miller's background was in marketing and graphic design. She said she declined to write the exam. ACFEI did not respond to questions about Miller.”

This situation highlights why competent lawyers always conduct a full background examination of any expert, testing credentials, no matter how old.

Client acquitted in Mattapan case

Acquittal in murder case: After 15 months of intensive defense investigation, a jury found our client not guilty on all charges in the murders of four people, including a two-year-old boy and his mother, during a robbery in September 2010. The Boston Globe and Boston Herald reported on the intense pressure facing families of both the victims and accused during the 6 week trial.

The defense investigation focused on the role of Kimani Washington, a career criminal whose story about participating in the armed robbery but leaving the scene before the murders, never made sense to most court observers. Eyewitness accounts described a silver/gray SUV with blue license plate driven by a bald headed man racing from the scene -- a match to Kimani and a Ford Edge he stole from a victim. Moreover, Kimani’s story changed repeatedly. Evidence showed he held a grudge against his cousin Edward Washington and had slashed his face with a cane--a stark contrast to his description of their relationship as “beautiful”. Defense lawyers Jack Cunha and Helen Holcomb were able to use the evidence to thoroughly impeach Kimani at trial. They also pointed to mistakes such as the Boston Police arresting Kimani just a few hours after the murders, holding keys to a silver SUV--but incredibly, failing to test him for gunpowder residue. Photos of the SUV were taken by some of the police-controlled security cameras dotting Mattapan, but they were not preserved by police.

Kimani later fled to New Hampshire where he was arrested. This case illustrated most graphically the problem with rewarding a cooperating witness of Kimani’s ilk with a deal that cut decades off a prison sentence for murder, if he had faced a jury.

Reduce your Massachusetts alimony payments


Massachusetts reputation as the only state where alimony never ends is over as of March 1, 2012. The Massachusetts Alimony Reform Act has addressed the issue of changing financial circumstances, and places time limits on payments.

Judges can now reduce or terminate alimony to your ex-spouse if he / she is living with another person and receiving financial support from that person.

Cohabiting is defined as keeping a common household with another person for a continuous period of at least 3 months. The law does not limit co-habitation to sexual relationships. Reinstatement of alimony is possible if cohabitation ends however.

If you need evidence to prove that your ex-spouse is living with someone, supporting them financially, paying rent and groceries, then we can help. Ensure that you pay only your fair share. Call us for further details.

Court conducts own review of video evidence

In an unusual appellate decision, a Massachusetts court evaluated how much weight can be given to inconclusive and sporadic surveillance video of a claimant. In Maher v Massachusetts General Hospital Long Term Disability Plan, the 1st Circuit Court of Appeals weighed the video evidence in comparison to the number of days of surveillance to find for a disability claimant.

Video evidence showed the claimant employee driving, walking, jogging, lifting a child, and even flying a kite. Unusual for an appellate decision, the judges delved into the fact investigation, noting: “On 10 of the 19 days of surveillance, plaintiff Maher engaged in no activity.” The court found that “In over 90 minutes of surveillance, the most damning evidence the MGH Plan can identify is 15 minutes during which Maher carried a bucket or pot and 30 minutes during which Maher played with her 3 year old son in the park.”

The plan administrator viewed the evidence as showing what doctors had previously concluded: the claimant was not totally disabled. But the court was not convinced: “ Thus most of the surveillance, far from contradicting Maher's disability, seems to confirm her lifestyle as generally housebound with occasional, limited activity.”

Interestingly, the court did not reinstate disability benefits, but instead returned the case to the administrator for further evaluation. Defendant’s attorney noted that three different review boards had found the video evidence did not show the employee met the definition of disability.

Facebook downgrades privacy policy

Background checks are getting easier everyday. Without getting customer consent, and following a decision by the Federal Trade Commission finding that the company had engaged in "unfair and deceptive" trade practices, Facebook announced today that it would make old posts available--even if archived. The FTC had found many instances where Facebook made profile information that a user chose to restrict to “Only Friends” or “Friends of Friends” accessible to any Platform Applications that the user’s Friends had used. More here.

Restyled federal rules of evidence

Seeking to avoid the new Coke marketing fiasco of the 1980s, the feds are rolling out the clarification in terms as a “restyled” FRE. Not new, just better. Enjoy a sip from the folks at Federal Evidence Review.

Investigation New England Patriots defensive rankings

Crack research staff here at Nardizzi Inc took a break from murders, frauds, infringing websites and sexual harassers to examine the 2001 Patriot (aka Marshall Faulk-killing) team, which won the Super Bowl over the Rams. That team was ranked:

24th in total yards defense.
6th in scoring defense.

Oddly enough the offense had similar ranks: 6th in scoring, 19th in yards.
Point differential was 99.

This year the Patriot defense is:

32nd in total yards defense.
10th in scoring defense.

Offense is 4th scoring, 2nd yards
Point differential is 90.

Scent of a Super Bowl lingers in the winter air...

* 2011 team however no longer employs one Antwan Harris, who combined in the greatest backyard football play ever, taking a lateral from Troy Brown after Brown blocked a Steeler field goal attempt. Harris ran 49 yards for a touchdown in the 2001 AFC Championship game, sending waves of Steeler fans into an icy depression (and spiking a notable increase in the Pittsburgh crime rate as well).
Courtesy of the research staff...

Doctor complains; federal agency cripples public database

Interesting story about a database run by U.S. Department of Health and Human Services that maintains discipline and medical-malpractice information. Diligent journalists and investigators could reference the database and, via other sources, sometimes identify doctors with long histories of being sued or disciplined for medical malpractice. Neurosurgeon Robert T. Tenny of Overland Park, Kansas was identified in this manner. His complaints led to the database being shut down for a time, only to be relaunched --with users required to promise not to link information in the database with publicly available information, like court files. Congress is now looking at the agency’s role in restricting speech and use of public data.

No right of privacy in IP case

Judge Young in Liberty Media Holdings, LLC v. Swarm Sharing Hash File & Does 1 through 38, held "the constitutional presumption of openness of judicial proceedings" trumps the privacy claims of defendants, who swarmed to illegally download and distribute gay pornography. The film (with the winsome title “Corbin Fisher Amateur College Men Down on the Farm”) was downloaded illegally; the IP addresses of the downloaders was used to track and identify them. Young did leave an opening for defendants: “Nevertheless, should individual defendants be concerned about being publicly 'outed' as discovery proceeds, the Court will entertain those arguments on an individual basis.” 

FBI Stingray can track cell phones

The FBI pursued a man they called “the Hacker.” Using a cellphone-tracking device called Stingray, they focused on a California home and arrested the man. Stingrays can locate a mobile phone even when it’s not being used to make a call.

Oddly enough, a price list for Harris Corporation wireless surveillance products including Stingray was published on the website of the City of Miami. Cost is only $75,100.

Former SEC counsel Becker says ethics officer cleared him

Former Securities and Exchange Commission General Counsel David Becker has been criticized for making decisions on how victims of Madoff’s Ponzi scheme would recover assets because his family once had investment with Madoff’s firm. However, Becker said he disclosed the possible conflict of interest to the SEC chairman as well as the regulator’s ethics officer. Both cleared him to participate in the Madoff matter.

Glik wins; right to record police upheld in 1st Circuit

The Glik case has been resolved resoundingly in favor of the First Amendment right to publicly to record the activities of police officers on public business anywhere in the First Circuit. One quote summarizes the case best: "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"

On the MA wiretap law banning secret recordings, the court wrote: “The presence of probable cause was not even arguable here. ... For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was 'secret' merely because the officer did not have actual knowledge of whether audio was being recorded.”

Beyond Bars: Dennis Maher moves on

In a Boston Globe piece, Dennis Maher has moved beyond the wrongful conviction that took prime years from his freedom. “I got over losing the 19 years of my life,’’ says Maher, 50, in an even tone. “I don’t try and make up for it because I can’t. The best that I can do is just go forward. Don’t hold the anger.’’

In addition to his job at Waste Management, where he started working one month after his release, Maher speaks publicly at conferences and other events involved with wrongful convictions and the importance of access to DNA testing. “It’s part of the healing process,’’ says Maher. “I enjoy it.’’

Setting witnesses at ease: one question to avoid

A former cop turned PI introduced himself to a witness during an interview. Case involved a contract dispute in the business session in Suffolk Superior Court. Within 10 second of the introduction, he said: “I’ve been doing this for a while so let’s start from the top: what is your Social Security Number?”

Asking someone a question like that does not make them feel warm and secure. A question like that makes people shut down. It suggests that the questioner is a clueless conversationalist or a creepy stalker. Not sure when the trend began for opening with such questions (“Nice to meet you. How big is your pancreas?”). But stop it. Now.

Chinese reverse mergers a growing problem

The number of lawsuits against Chinese reverse merger companies nearly tripled since 2010, according to a study by Stanford Law School Securities Class Action Clearinghouse and Cornerstone Research. "Securities Class Action Filings: 2011 Mid-Year Assessment," reports that 24 class action lawsuits were filed against Chinese reverse merger companies in 2011. Reverse mergers work as follows: a Chinese business is acquired by an American shell company that is publicly traded. The board then resigns, a Chinese-appointed board takes control and changes the company name. Voila: it now can issue new stock to investors, all without IPO costs and paperwork.

News of the World PI apologizes for phone hack

British private investigator Glenn Mulcaire is at the centre of the News of the World phone-hacking scandal. He issued a public apology and attributed mistakes made at the behest of News as due to "constant demand for results". He released the statement after his "vilification" following the revelation of the hacking of a missing schoolgirl's voicemails.

Federal agents get more leeway to investigate

The FBI: the Vault has a redacted but still interesting fact-filled guide on its website: FBI Domestic Investigations and Operations Guide (DIOG. It is undergoing a significant new change granting more power and less oversight to agents conducting the lowest category of investigations (termed an “assessment”). Assessments allow agents to look into people and organizations without any evidence of criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search databases without making a record.

FBI received Santa Monica tip--in 2008

The Santa Monica Times reporting an intriguing story that a Las Vegas man vacationing in California recognized Whitey Bulger sitting on a park bench at historic Santa Monica Pier, chatting with a kid wearing a Boston T-shirt about city neighborhoods-- in 2008. The man recognized Bulger because he'd just seen the FBI corruption story featured on an episode of "America's Most Wanted."

Steve Katz, the show's co-executive producer, confirmed that the show did get a tip in 2008 that Bulger was in Santa Monica. He added that the information about Bulger being in Santa Monica was turned over to authorities. The FBI couldn’t confirm Thursday whether the agency ever received such a tip.
it.

Massachusetts access to DNA testing

Client Dennis Maher wrote an op-ed in the Herald and testified this week on a Post-conviction DNA Access Bill pending before the Joint Committee on the Judiciary. Maher was exonerated by DNA testing after spending close to 20 years in prison for rapes he did not commit. This firm later investigated on his behalf in a civil action, resulting in a multimillion dollar settlement.

Russian police officer cleared in prison death of lawyer

A senior Russian police officer was cleared of wrongdoing in prison death of lawyer Sergei Magnitsky, a lawyer working for UK hedge fund Hermitage Capital Management. A human rights commission appointed by President Dmitry Medvedev concluded the police had fabricated the charges against Magnitsky.

Wiretaps for suits

The recent insider trading conviction of billionaire Raj Rajaratnam shows that federal prosecutors will increasingly be using wiretaps to build fraud cases involving Wall Street executives. It also signals the growing acceptance by federal judges that, despite the extraordinary cost and invasiveness of such procedures (agents are directed to stop listening when talk turns from business to private--yes, stop the laughter), wiretaps have reached a kind of critical mass of acceptance in the surveillance nation we now inhabit.

In a related matter, Massachusetts law enforcement officials are pushing for a change to antiquated state wiretap laws. An interesting side note is that if the law is changed, it should signal the end to a large number of frivolous wiretapping charges brought against Mass. citizens who are documenting police activity. The Boston Police Dept. is being sued in a major case on that exact issue. The case is Glik v. Cunniffe et al., Civil Action No. 10-10150.
The story and video from the arrest is available here.