If You See Something, Say Something

Upon reading the  Hinky Meter post explaining the details of why the testimony of the prosecution’s witness, Sgt. Kevin Stenger, that Casey Anthony visited a page on a website about chloroform 84 times was false, I was clueless.

When hearing of this discrepancy I and most others were left with the impression that CacheBack was wrong and NetAnalysis was correct. Furthermore, that the discrepancy came out at trial seemed to me to be a public-relations nightmare for the Cacheback product. As it turns out, both programs produced erroneous results. But worse, OCSO appears to have known about the discrepancy and did not follow-up with the authors of either CacheBack or NetAnalysis.

The developer of NetAnalysis posted a blog entry on July 11 describing the discrepancy and poked a finger in the eye of CacheBack (not mentioning the product by name) by essentially saying “our product works and their’s does not”. It is true that NetAnalysis v1.50 (released March 23, 2010) corrected problems the earlier version of the tool had with the Firefox 2 history file, but the version used on the Anthony case was older – v1.37.

Huh?  I get that it’s wrong, but I’ve no idea why, or frankly, what they’re talking about.  No doubt some of the nerds who stumble upon SJ will have a burning desire to explain this, but don’t bother.  It doesn’t matter now.

What I did think was, “did anyone think to call Jose Baez and tell him?”

John Bradley, the designer of NetAnalysis, is  in the news about how his review showed that Casey Anthony didn’t do what the Orange County Sheriff’s office says she did.

The Orange County Sheriff’s Office had used the software to validate its finding that Ms. Anthony had searched for information about chloroform 84 times, a conclusion that Mr. Bradley says turned out to be wrong. Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office in late June through e-mail and by telephone to tell them of his new findings. Mr. Bradley said he conducted a second analysis after discovering discrepancies that were never brought to his attention by prosecutors or the police.

Mr. Bradley’s findings were not presented to the jury and the record was never corrected, he said. Prosecutors are required to reveal all information that is exculpatory to the defense.

“I gave the police everything they needed to present a new report,” Mr. Bradley said. “I did the work myself and copied out the entire database in a spreadsheet to make sure there was no issue of accessibility to the data.”

In the course of a prosecution, evidence that can appear one way to the uninitiated, yet completely differently to the sophisticated, finds it’s way to the jury.  It happens large and small, from the assumptions that ordinary people have about how a physical item exists or a digital act happens, and the bunch of lawyers in the room don’t have the slightest clue that they are completely wrong.

In this case, Bradley gave the cops and prosector’s the heads-up.  Had they now made the active choice to deprive the defense of this Brady/Giglio material, the defense might have known as well.  But Brady is the joke of criminal law, and any lawyer who sits still waiting for the prosecution to honor its duty to disclose evidence that impeaches the testimony of its witnesses is a fool.  That it came out at all, even after the acquittal, is a matter of some amazement.

No, the thought that came into my Luddite head wasn’t about which means of determining how many times Casey Anthony accessed this page of a website that was critically important to the prosecution.  What hammered me was this:

Mr. Bradley said he immediately alerted a prosecutor, Linda Drane Burdick, and Sgt. Kevin Stenger of the Sheriff’s Office . . .

John Bradley made a decision.  Jose Baez’s name was in all the papers.  His phone number is right there on his website.  He’s easy enough to find.  Yet John Bradley made the choice of calling the prosecution but not the defense.  That’s what first came to my mind. 

No doubt the prosecution remains fair and honest, the protectors of truth and justice in our society and the people to whom fine, upstanding, honest citizens turn with their information about false testimony.  The defense represents the bad, evil, horrible people.  If you something to say that will clear up this falsity, call the good guys.  Don’t call the bad guys.  Don’t tell the people protecting the forces of evil in the world that the good guys are wrong, their testimony false.

And so now, after the verdict, John Bradley has publicly disclosed his revelation.  Isn’t he wonderful?  He’s the purveyor of truth.  Except he decided not to tell Jose Baez at the point when something could have been done about it.

13 comments on “If You See Something, Say Something

  1. Legal Baby

    Not directly relevant to the point your trying to make but it get’s worse.

    After Mr. Bradley contacted Ms. Drane-Burdick, the Assistant State Attorney leading the prosecution, who called back Sgt. Stenger during rebuttal. The opportunity to retract the erroneous “84 searches” testimony was not taken.

    To be fair to Mr. Bradley,  Baez was aware of the discrepancy certainly by the start of the State’s rebuttal argument, but she, adding insult to injury, gave Mr. Baez the brush off and refused to disassociate herself from the erroneous evidence in front of the jury.

    As for the reason Mr. Bradley came out publically with his statements? Reading around it seems that bloggers and forum members of the nerd variety were discrediting his software and he felt the need to set the record straight.

    Since I am a law student and from the UK, I have one question for you US criminal defense attorneys. Is this sort of conduct normal (i.e. knowingly misleading the jury) on the part of prosecutors?

  2. ExPat ExLawyer

    Though I agree Bradley should have reported this to the defense, I would cut him a little bit of slack as he probably believed as most laymen do that the prosecution searches for truth and justice, and he was “their” witness and he probably didn’t know that they would do zilch with his detailed and thorough revelations until after it was too late. Hopefully, this will be a lesson for future witnesses, expert and otherwise.

    Fortunately, the defense did not sit on its hands and wait for Brady material and instead had its own witness. Fortunately, the jury didn’t believe a thing about the prosecution chloroform testimony.

    The public as a whole needs to learn just how common the prosecution practice is because prosecutors rarely face the discipline required by law.

    We all know this, but much of the public does not and think all prosecutors risk the disbarment meted out to Nyfong, when at most they will get a public reproval after they are apppointed to the bench, as in the Tim Masters case in Colorado. I think there is some cause for optimism, as the comments in even the Orlando Sentinel on this were largely anti-prosecution.

    I get the sneaking suspicion the prosecution team is holding out the threat of witness tampering against the defense as a preemptive strike to prevent a misconduct complaint against them.

    What are your thoughts, Scott, on how the defense should handle this revelation at this juncture?

  3. SHG

    The prosecution has a bunch of duties, ranging from disclosure of information that tends to show the defendant is innocent (or that tends to impeach a prosecution witness) to correcting knowingly false testimony by its own witness.  Does it happen all the time?  We only know when we find out. 

    But the point is that if our system relies on the good faith satisfaction of prosecutorial duties, while the citizenry sits on the couch thinking “that’s wrong” and doing nothing, we’re sunk.  If the prosecutor is disinclined to be honest, and the people who know better won’t disclose what they know to the defense, the entire system hinges exclusively on whether a prosecutor decides to fulfill this duty (against the interest of obtaining a conviction of a person they believe to be guilty).  Would you bet your life on that happening?

  4. ExPat ExLawyer

    In my experience, it happens more often than not because there are rarely disciplinary consequences to prosecutors. Hey, how hard is it for Americans to get bar tickets in the UK? Sounds like prosecutorial misconduct’s not real common across the pond. Had I practiced there maybe I wouldn’t have burned out from hearing nothing but lies 12 hours a day.

  5. ExPat ExLawyer


    The AP is now reporting that Bradley (through his lawyer) did not mean to “insinuate” there was any prosecutorial misconduct. No report of his backing off his statements, though. Looks like the prosecutors are not giving him any slack for being right, that’s for sure.

  6. SHG

    In my experience, it happens more often than not  . . .

    And this means what to whom?  Not every silly question needs to be answered.

  7. A Voice of Sanity

    “Would you bet your life on that happening?”

    Scott Peterson and his lawyers did.

    [Ed. Note: Balance of comment deleted as irrelevant and too stupid to waste bandwidth.]

  8. A Voice of Sanity

    I can’t shake the feeling that Ashton deliberately helped the defense in this case for his own reasons. ISTR that there were jurors empaneled who understood computers and would ask why anyone would look up chloroform 84 times when a push of a button would print a hard copy.

    84 times? That makes no sense.

  9. SHG

    And yet this had absolutely nothing whatsoever to do with Scott Peterson. Have you been holding this anger inside you all this time?

  10. RonP

    This is business as usual in the 9th Circuit. Ashton and Drane-Burdick had every reason to believe they could bluff this through. Judge Perry did everything he could to help them and OCSO is especially skilled cooking up evidence to suit the SAO’s needs. The publicity of this trial was a double-edged sword for the defense. With it they faced a Herculean feat to empanel an unbiased jury but they also benefited by interested software bloggers who were all over the ridiculous 84 searches for chloroform. Go back at look and watch the video before Drane-Burdick began the state’s third closing. Baez brought the matter to the attention of the judge and he said, I paraphrase, “We’ll deal with that later perhaps.” Drane-Burdick looked positively insulted at the suggestion. Kangaroo Court is the expression that comes to mind.

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