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Notice To Preserve Evidence: EFFECTIVE Evidence Gathering

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First, I should preface this post. This blog post is in the legal category of my blog, but I am NOT an attorney. Always follow the discretion of your attorney over what I say and/or write. Your attorney will understand things about your case that nobody else will, like the nuances of your case, the general attitudes that key people in your case have, and such. So, always listen to your attorney in your case, over anyone else.

Now, on to the topic of this blog post. This blog post is about the Notice To Preserve Evidence Letter, sometimes referred to as the Litigation Hold Letter. This has to be one of the most effective tools for gathering evidence that I have ever used, but yet one of the most overlooked tools that I know of. The Notice To Preserve Evidence Letter is very powerful, if worded correctly and explained correctly to the person it is being served to.

I have served these Notice To Preserve Evidence Letters for over 10 years, and although attorney’s seem to overlook using them, or at least seem to rarely use them, we have gotten evidence that we would not have gotten without using them. In one case we got video evidence that actually exonerated a client on drug trafficking charges, and in another case we got video evidence that assisted a client in securing a settlement from city government. 

Below is a photo of an old Notice To Preserve Evidence Letter that RMRI, LLC. used to get video evidence that resulted in our client obtaining a settlement from the city of Columbia, MO.

The benefit to the Notice To Preserve Evidence Letter is that it puts a burden on the person that it is being served to, that often times influences that person to turn over the requested evidence when they are being served rather than have to try to keep up with it and risk losing it. In the case mentioned in the previous paragraph, where our client was exonerated from drug trafficking charges, RMRI, LLC. served a Notice To Preserve Evidence on a local hotel for video footage in the time frame that the arrest and search of our client occurred, and we found evidence that the items that were found in the search did not belong to our client, nor did he have any knowledge that they were there. The evidence was compelling enough that the prosecution dropped all charges against our client. The hotel did not want to have to pull the video, store it, and be responsible for it, so the management decided to allow us to pull the video and process it the same day we served the the hotel with the Notice To Preserve Evidence Letter. We actually got key video evidence in this case before the local law enforcement agency that investigated this case did. In the other aforementioned case where our client got a settlement from the city, we also got that video evidence before local law enforcement did, the Notice To Preserve Evidence Letter in that case is pictured above.

Typically, Notice To Preserve Evidence or Litigation Hold Letters are used in civil cases, however I know of no case law, court rule, or procedure which bars them from being used in a criminal case. 

The Notice To Preserve Evidence Letter should be crafted by the Private Investigator in these criminal cases, since the Private Investigator should know what specific evidence to target, approved by the attorney, and then served by the Private Investigator. Serving the Notice To Preserve Evidence Letter is no different than process service, as a matter of fact it is process service. After the Notice To Preserve Evidence is served, the signatures are taken and the time and date are filled out, a copy of it should be put in the court docket. This allows the court to see that the party that was in possession of said evidence was put on notice to preserve that evidence in a legal matter. 

The Notice To Preserve Evidence Letter has been one of the most powerful tools that I have ever used in gathering evidence in criminal and civil cases.

RMRI, LLC. hopes to see this tool more widely used by attorney’s and private investigators to gather key evidence that may exonerate their clients in criminal cases or win judgments in civil cases.

Rick Gurley of RMRI, LLC.

Working A Good Case With Good People

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Back in the last part of 2011 RMRI, Inc. was called upon to review a case in Camdenton, MO. The case involved a young man who had three illegal files on his computer. The state of Missouri Family Services Division has what is known as a “Stat Team”; this is the team of Investigators that conduct technical investigations for the Division of Family Services. The “Stat Team” conducts Computer Forensics Examinations in cases where they might have a complaint of sexual abuse in the family home. If the “Stat Team” finds illegal content on the computer that the Investigator is examining the Investigator that did the examination can refer this case for prosecution.

In the case that RMRI, Inc. was contacted about the Missouri “Stat Team” found three images on the defendant’s computer of an illegal nature. Often times RMRI, Inc. will be called in by the defense attorney to consult on these types of cases. Because these specific types of cases are so technical due to the very nature of these cases often the Defense Attorney wants to call on an expert to explain exactly what occurred on the defendant’s computer that resulted in these charges, to interpret the evidence since it will usually consist of a good deal of technical jargon, and to see if the Investigator made any statements that might indicate that he or she did not correctly interpret their evidence. RMRI, Inc. has some of the best expert witnesses in the state of Missouri for cases involving almost all manners of digital evidence. RMRI, Inc. has a “Technical Team” of two experts that have a combined fifty years of experience in working with everything from software development and programming, source code analysis, virus and malware defense and protection, computer repair, file recovery, software development, computer security consulting, and forensic acquisition techniques.

When RMRI, Inc. is first called in to consult on a case of this nature the first thing that we want to do is see all of the discovery on these cases. We want to see the report from the Investigator that did the forensic analysis of the computer in question, we want to see any deposition material where the Investigators were deposed by the defense attorney, we want to see any interviews conducted with the defendant, and anything else that the prosecution has provided that will give us an accurate picture of what happened to cause the defendant to be charged. RMRI, Inc. also wants to be present for any testimony that the Investigator that worked this type of case gives.

In the present case that we are discussing here, the testimony of the Investigator that conducted the computer forensics examination on the defendant’s computer gave us great pause as to whether this Investigator correctly interpreted the evidence that he found on the defendant’s computer. In this case the Investigator believed that the defendant downloaded three illegal files to their computer for viewing. The reality of the case is that the defendant never even knew that these files resided on their computer. These files were simply thumbnails that were residing in the temporary file section of the defendant’s computer and were put their as a result of the defendant looking at a website, but NOT even knowing that this website would place these thumbnail images on their computer as a result of viewing this website. Through careful and methodical research RMRI, Inc. was able to not only come to understand what had occurred on the defendant’s computer but was also prepared to prove what happened on the defendant’s computer.

The main figure in this case that was actually able to get this case dismissed at deposition without it ever seeing a trial was the attorney. The attorney is Deirdre O’Donnell of Phillips, McElyea, Carpenter, & Welch, P.C. who was one of the sharpest and most intelligent attorneys that I have ever worked with. Deirdre grasped the issues that we found very quickly, she understood our explanation of what occurred  in this case, and she clearly understood what questions needed to be asked of the Investigator for the state of Missouri. Below are the contact details for Deirdre O’Donnell:

Deirdre O’Donnell

Firm: Phillips, McElyea, Carpenter, & Welch, P.C.

Website: http://www.pmcwlaw.com

Phone Number: (573) 346-7231

Address: 85 Court Circle N.W., Camdenton, MO. 65020

After RMRI, Inc. heard the State’s Investigator testify, analyzed the discovery evidence, and then worked with Deirdre a little on going over what had occurred on the defendant’s computer, Deirdre decided to depose the State’s Investigator. RMRI, Inc. worked with Deirdre on some of the more technical questions that she would ask the State’s Investigator during deposition, and Deirdre already had a comprehensive understanding of the issues that we wanted to find out more about in deposition, but RMRI, Inc.’s Technical Expert wanted to make sure that Deirdre was armed with all of the questions necessary to give us a complete understanding of what lead the State’s Investigator to apply for charges against the defendant in this case.

Deirdre O’Donnell spent countless hours preparing for this deposition, and she went into the deposition and started asking key questions of the State’s Investigator as to what he believed happened on the defendant’s computer, and why he believed as he did. The State’s Investigator had enough integrity and honor to admit shortly into the deposition that he did not have a complete understanding of how to conduct a forensic examination at the time of his testimony because he had only had the basic computer forensics course at that time; since his testimony he had taken an intermediary computer forensics course and has come to understand that some of what he testified to may not have been completely accurate. At this point in time the Prosecuting Attorney “nollied” (dismissed)  the case against the defendant. The State’s Investigator and the Prosecuting Attorney showed a tremendous amount of integrity and honor once they came to an accurate understanding of what had occurred in this case.

Deirdre O’Donnell fought intelligently and passionately for her client. Deirdre worked this case in the most effective way possible and achieved the best possible outcome on this case. It takes a lot of work to convince a Prosecutor that he or she should drop charges and not proceed to trial. The Defense Attorney has to be able to clearly convince the Prosecutor that a crime was not committed; and Deirdre did that perfectly! God forbid, but if I ever have legal problem in the Camdenton, MO. area the ONLY attorney I would hire in that part of Missouri would be Deirdre O’Donnell!

The Trial Of The Century: Casey Anthony vs. State of Florida

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Earlier today I made this post on a Yahoo Group when asked to comment on the Casey Anthony Trial:

I’d call this a heck of a win for Jose Baez and a humiliating loss for the prosecution.

Consider that Jose Baez was the “underdog” with no “death penalty case” experience prior to this case. Further consider that Jeff Ashton is a renowned Prosecutor with several murder trials under his belt. If you watched the media during the trial, almost every one of the commentators that are attorneys and investigators were putting Jose Baez under the microscope for what they all perceived as mistakes and praising Jeff Ashton for every little thing he did, with the exception of Sunny Hostin. Looking at these points you can only conclude that Jose Baez did a heck of a job on this case in the face of some overwhelming odds.

I have maintained from the beginning that Jose Baez was doing a really good job as the Defense Attorney on this case, and posted as much on another group before the verdict.

After having watched what I could of this case, I do not believe that Casey killed her daughter. I think that her daughter died as a result of an accident in the swimming pool and drowned. I think that Casey panicked and did not call the police. I think that Casey Anthony DID put the child’s body in the car. I think that Casey Anthony was trying to figure out how to dispose of the body without being caught. I think that the body did start to decompose while in the car. I think that Casey Anthony called her mother to help her figure out what to do with the body. I think her mother told her husband, George Anthony. I think George Anthony then stepped in and disposed of the body for his wife, who would have been grieving at that time and worried that she would lose a granddaughter and daughter if they contacted the Police. And I believe George Anthony disposed of the body in the same manner that he disposed of the bodies of the family pets when they died. Most of all, in my mind I think Jose Baez painted a real clear picture that this or something very similar occurred in this case. And none of this adds up to murder.

But that is just my opinion, it does not mean much.

Kudos to Jose Baez for a heck of a job and a heck of a win!

Ricky Gurley.

Well an associate of mine asked me to post this on his blog, and I did. This post has not made it to his blog yet, but I feel that it may; eventually. Now everyone that know me, knows how I am. I have to take my “shots”. Just gotta do it, so let me get those “shots” out of the way, and then we can move on to a more careful analysis of the Casey Anthony Trial.

Jeff Ashton will now be prosecuting bad checks and traffic tickets for the State of Florida; so I guess he figures it is time to retire. Linda Drane Burdick will be arranging plea bargains with defense attorneys for prostitutes and pot smokers; but with the help of some short skirts and low-cut blouses she may be able to “work” her way back up to prosecuting murder cases sometime in the next five years. And the other Prosecutor? Well he was smart enough to minimize his participation in this trial enough that I can’t even recall his name. He may have very well avoided the “career bullet” by minimizing his exposure (mind you that the only way Linda Drane Burdick is going to climb the corporate ladder so to speak, will be by “MAXIMIZING her exposure”). All of the “legal expert commentators” will be wiping egg off of their faces for the next month; and “Nasty Disgrace” will still have a few more runs at Casey Anthony and Jose Baez; despite the egg on her face. But we should all be thankful that “Nasty Disgrace” does have egg covering her face, if only for a little while. And all Mike Brooks has to do is slide the egg upwards to his bald head and it should slide right off; so he will be spewing more of his “judgmental non-sense” next week! But there is an upside;  Jose Baez gets to go home with the “gold ring”, and he has earned it. And I hope “Nasty Disgrace” and Mike Brooks get a good, long look at him as he is tilting his champagne glass to the sky! The ONLY News Commentator that demonstrated some real experience, high intelligence, and was completely unbiased on this case was Sunny Hostin. She called it right all of the way down the line!

Now onto the more serious side of this case.  Onto a more serious analysis of this case. When one considers the overwhelming odds that Jose Baez faced, the limited funds that he had to work with ($90,000.00 over 3 years), versus the unlimited funds and resources of the Florida State Attorney’s Office; all we can conclude is that Jose Baez is simply a brilliant and “top shelf” Defense Attorney! Jose Baez went into this case with no death penalty case experience, with the media putting his every move under the microscope and looking for errors while the media found every excuse in the world to praise Jeff Ashton and Linda Drane Burdick. And Jose Baez still overcame those overwhelming odds and produced what can only be defined as a WIN!  Was he aggressive? HELL YEAH! Did he attack the Prosecution’s case with a vicious brutality? HELL YEAH! Did he thoroughly cross-examine and break down the Prosecution’s witnesses? HELL YEAH! All of which is to say that he vigorously defended his client as any good Defense Attorney should do. Jose Baez did his job and did it well. Jose Baez did what he is legally obligated to do, and nobody can fault him for that!

The Casey Anthony Prosecution Team in their "What Do We Do Now?" Pose

Anytime a Defense Attorney has a client facing the death penalty and walks out of the courtroom with his client only being convicted of four misdemeanors; that is a WIN! No Defense Attorney gets a verdict like this in a case like this one on sheer luck. No sir, the Defense Attorney has to be skilled to do what Jose Baez did in this case!

The Prosecution’s case was damned to any intelligent Jury to begin with. The Prosecution used what I jokingly refer to as “The Doo Doo Head Strategy”. They did not have any forensic evidence whatsoever, and the Florida State Attorney General admitted this after the trial was over when he stated that they had “no smoking gun” and “a Dried Bones Case”. The Prosecution knew that they had no forensic evidence, so they relied on character assassination of the defendant in hopes that they could get the Jury to be emotional due to the loss of little Caylee Anthony, and  want to blindly convict Casey Anthony by making her out to be a terrible person. To an intelligent Jury the Prosecution would have had as much effect by standing up and saying “Casey Anthony is a Doo Doo Head”! The “forensic evidence” that the Prosecution presented was simply “babble”, disguised as smoke and mirrors that amounted to nothing once an intelligent person took a close look at it. And we had twelve intelligent people looking at it and one brilliant Defense Attorney exposing it for what it is to them!

Jose Baez getting ready to ask Jeff Ashton "What Kind Of Crap Are All Of You Going To Try To Pull Now"?

Nobody, not even Jose Baez ever stated that Casey Anthony was “salt of the earth”. As a matter of fact Jose Baez let it be known right up front that Casey Anthony had told a lot of lies, and was a dysfunctional part of a dysfunctional family. Pretty much everyone, even the defense acknowledged that Casey could fairly be considered an unsavory person. But the Prosecution wanted to spend 30 days hammering this point home. The sad fact is that the prosecution could not do much else, because this is all they had! And the one fact that the Jury kept in focus was that a liar, even a promiscuous liar, even more a promiscuous liar that will suggestively pose for the camera for a little bit of recognition, no matter how much we may not like someone like this, is still not a “murderer make”!

Does This Equal Murderer? REALLY?

In summary; one can never say what verdict a Jury will reach. The fact is that it is impossible to predict what verdict the Jury will come back with. But here, in this case; the jury got it right. The Jury did not allow the prosecution to “play on their emotions”. The Jury stuck with the facts and the evidence; or rather in this case the LACK of evidence. The Jury stayed the course; and we should all be thankful that they did.

I will leave you with this thought. Juries are called upon to perform an incredible task. The fate of another human being is held in their hands. Along with the Jury’s verdict comes a message. The message often times is that we as a society will not tolerate the victimization of our fellow man. But sometimes this message is sent to the prosecution or the state instead of the defendant; and in this case that is exactly what happened!

Thank you all for your readership.

Ricky B. Gurley

Ricky Gurley Hard At Work

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