The adage that three can keep a secret if two are dead, often attributed to Benjamin Franklin though its origins may go back further, presumes that a secret is often betrayed by those who are in on it. As Lancelot Gobbo, Shylock’s servant in “The Merchant of Venice” said, “The truth will out.”
Experienced police officers know that anything said, written, or done is open to evidentiary disclosure. Presumably, private conversations may not be as private as they once were, a by-product of our modern technological reality. The world of instant communication through texting and instant messaging services, such as WhatsApp, has made it more likely that what police officers place in a message, if relevant to an investigation, may be discoverable in a court proceeding.
The consequences of inappropriate texts
We have all become too comfortable in our digital lives and often forget the permanency of our communications through various digital mediums. The recent events surrounding the Karen Read trial in Massachusetts and the relief from duty of a lead investigator in the case serves as a cautionary tale for other police officers in how they use their cellphones at work.
For those not familiar with the case, Karen Read is accused in the death of Boston police officer John O’Keefe who was found dead in a snowbank by the driveway of another police officer after a party at the officer’s house. A mistrial was recently declared due to a hung jury, and the lead investigator, Trooper Michael Proctor, was suspended from duty after his text messages about Read were disclosed during the trial.
While a defense attorney’s access to personal cellphone text messages generally is not within the normal range of criminal trial discovery material, in this case, the texts of Trooper Proctor became available, and he was made to read those messages while on the witness stand. The messages included derogatory statements about the defendant, Karen Read, and other inappropriate comments not befitting a professional police officer.
What officers communicate within a presumably private conversation can devolve into the snake pit Trooper Proctor found himself in when testifying at trial. Of course, he was the one who filled the pit with venomous barbs before being placed into it. Read’s defense counsel merely took advantage of the gift placed before them.
Legal implications of text message discovery in criminal trials
State and federal criminal discovery laws are liberally applied to allow defendants equal access to evidentiary material possessed by the prosecution. Discovery’s reciprocal requirements make defense materials available to the prosecution. However, this is an overly simplified explanation of a procedural process that is one cornerstone of the Sixth Amendment right to a fair and impartial trial.
Since the beginning of the Read case, there have been two opposing camps — those who believe she is guilty and those who believe she is being scapegoated for culpable law enforcement officers in the death of Boston police officer John O’Keefe.
The intense publicity surrounding the case places an added level of scrutiny upon the police and prosecution, but even in the absence of such interest, professionalism requires a more circumspect approach to cell phone use during a criminal investigation.
In the past, before there were social media use policies adopted by police agencies, I wrote and lectured at training conferences about the pitfalls of social media postings and the negative impact an investigating officer’s social media post could have on the outcome of a criminal trial. Even with social media use policies in place throughout the nation’s police agencies (hopefully!) stories persist about officers’ indiscriminate use of social media. The events of the Karen Read case take us into a relatively new realm of concern.
The importance of investigative discipline
A police officer should consider any document created in the course of their duties, and, yes, this includes text messages to a spouse or supervisor that references the investigation, to be discoverable. Police officers know that a defendant’s text messages can be obtained through a subpoena, at a minimum, or through a search warrant. Why not then theirs under a defense attorney’s reasoned argument to a judge that the messages are relevant to a client’s defense?
A police officer’s off-duty text messages made “within the ambit of personal pursuits and not done under pretense of law” are qualitatively different from those made when there is an “abuse or misuse of power conferred upon an officer by state authority.” Vasquez v. Garcia, 432 F. Supp. 32 (D. Conn., 2019) A recent article about a federal civil rights case from California, wherein a San Jose police officer’s racist text messages after shooting a black man who had intervened in disarming a gunman, revealed not only the officer’s unsuitability to remain employed as a police officer but also led to a second lawsuit accusing him of a hate crime. Similarly, in 2023 the FBI arrested nine police officers in California for racist, sexist and homophobic text messages as part of a civil rights investigation into police abuses at two departments.
Stories like this from around the country are disturbing but they expose individuals who do not belong in the ranks of professional, unbiased law enforcement officers. However, even though the two above examples and Trooper Proctor’s testimony are extreme perversions of duty, the implications are clear. Even the most seemingly benign comments on text messaging and social media commentary regarding active investigations can have negative consequences.
The Massachusetts pre-trial discovery statute provides in Criminal Procedure Rule 14 (a)(1)(A) that:
The prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, each of the following items and information at or prior to the pretrial conference, provided it is relevant to the case and is in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who have participated in investigating or evaluating the case and either regularly report to the prosecutor’s office or have done so in the case:
(ii) The grand jury minutes, and the written or recorded statements of a person who has testified before a grand jury.
(iii) Any facts of an exculpatory nature [boldface added].
I do not know if this statute’s sections were used to obtain Trooper Proctor’s text messages, but a plain reading of it certainly provides a basis for an argument that biased text messages made by the lead investigator in a murder case are subject to discovery.
To repeat an old saying I often heard as a child, “A word to the wise is sufficient.” Maintain investigative discipline by keeping your text messages limited and narrowly focused. Otherwise, we may be reading about you someday.
