It’s the new confession, and not only does it come from the defendant’s own hand, but in advance as well as afterward.  Texting, from your fingers to cops’ eyes.  It bought Mark Pickens the death penalty.

Mark Pickens was in Noelle Washington’s apartment minutes before she and two children were heartlessly shot in the head and murdered in 2009.

Pickens knew he was being investigated for raping Washington, despite his insistence he knew nothing about the charges.

Those two pieces of information would have been difficult to prove in court. They also wouldn’t have been enough evidence to convict Pickens of three murders and send him to death row. But when Hamilton County jurors combined that information with a mountain of text messages, a clear picture emerged of Pickens’ guilt.

In this case, everybody was a texter.  Pickens texted. Washington texted.  Texts were flying back and forth, out and back.

Pickens was 19 and a self-described ladies man in 2009 when he got into an argument with sometime girlfriend Washington and then raped her.

Police went May 31, 2009, to Pickens’ apartment and, because he wasn’t there, put a business card in his door asking him to contact them.

The next day, Washington was shot as was her 9-month-old baby, Anthony Jones, Jr. Three-year-old Sha’Railyn Wright was also shot and killed. Sha’Railyn was the daughter of Washington’s best friend, Crystal Lewis.

There was no eyewitness to the murders, no physical proof to tie Pickens to Washington’s apartment.  Sure, he could have done it, but “could have” isn’t good enough.  Except when put together with a running narrative of his movements, thoughts, knowledge as tapped out by his own ladies man fingers.

“It’s extremely difficult to argue statements on that phone because they are on that phone,” [defense attorney Norm] Aubin said.

It’s especially hard for defense attorneys to beat text messages in court, because you can’t confront them like a human witness.

“This doesn’t lie,” [Assistant Hamilton County Prosecutor Katie] Burroughs said of texts. “This isn’t someone summarizing their memory.”

Jurors, Aubin said, love that.

Cops love it. Prosecutors love it.  Defendants and their lawyers, not so much, at least when the texts serve to undermine any possible defense, provide the evidence linking otherwise questionable conduct or conclusively prove a defendant to be lying. 

Technology is everywhere, and conduct such as texting is ubiquitous among certain crowds.  And if not texting, the twitting. Or blogging. Or somehow putting the minutiae of life down in writing so the world can be alerted to every detail of your every day.  Such fun.  How cool to be at the cutting edge of social media.

What we’ve created, however, is a record about ourselves that can be used to establish our whereabouts, mindset, scope of knowledge, intent at any given moment.  We write a constant confession of our lives, whether for good or bad.  And if it happens that the plan is to go murder someone, bad is far more likely.

Text messaging is exploding – there were 5.9 billion text messages each day last year in the United States, said Amy Storey of CTIA-The Wireless Association, an international association for the wireless telecommunications industry.

Some telecoms store texts, even if only for a limited period of time. Others don’t, likely due to the sheer volume.  But they may still be on a phone, whether the defendant’s, victim’s, a friend’s, whoever.

And lest one think this is only a blight upon the defense, it cuts both ways, with the possibility that accuser’s texts can disprove their claims and subsequent testimony.  There is one significant difference, of course, in that they may be impossible to get hold of and preserve before the person deletes them.  The police aren’t likely to go out of their way to do the work for the defense, though they will certainly feel horrible about it later, when it turns out that critical evidence was left unattended.

Yet these short writings can be used in even more interesting ways.  For example, Pickens, who was a serial texter, had a sudden and inexplicable gap in texting on the day that Noelle Washington was murdered.  And the gap came just as the murder occurred.  Aside from that, Pickens texted like a demon.  How odd.

But had Pickens been texting throughout that day, say about the ball game or his exceptionally fine lunch, it might well have established that he wasn’t anywhere near the apartment where the murder occurred, or had his fingers too busy tapping keys to pull triggers.

Tech is not only fun to do, but a marvel when it comes to establishing evidence of what a person is doing, whether good or bad.   Of course, it’s easier to avoid the issue of an unintended text confession by not shooting anyone, but that might be too much to ask.

H/T Badlawyer