By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
Watching the riveting cross-examination of Rachel Jeantel – Trayvon Martin’s friend – about the last phone conversation between Trayvon Martin and her before he was killed, it occurred to me that the NSA must have the metadata for those frantic cellphone calls and also have them stored as they have been doing for years. So, why couldn’t the Defense or Prosecution make a motion to subpoena that metadata and those phone calls as stored and have that information provided to the court so that the phone calls could actually be heard in the courtroom – sort of a 911 call recording without the presence of 911.
I posted this idea on the minority listserv and Professor Pedro Malavet drew my attention to two stories where defendants are seeking the metadata at NSA as exculpatory evidence
We will see how successful those efforts will be. A further thought would be whether in cases since 9/11 where the defense had made requests for all exculpatory evidence from the prosecution, defense attorneys of those convicted might now seek NSA data as part of forming appeals against convictions asserting prosecutorial misconduct. Prosecutors might be able to argue that they were not on notice of these extensive storing activities and so as such could not provide that evidence so the convictions should not be overturned. But, defense might still insist now to find evidence that might be used as part of innocence project type efforts for death penalty cases and beyond.
For cases since the Snowden revelations, the prosecutors are now on notice such storage of data (Big Data) exists, so defense counsel now may wish to make requests that are broad for all exculpatory evidence including NSA Big Data. Moreover, in fear of a malpractice suit or an appeal based on ineffective assistance of counsel, I wonder if it might now behoove defense lawyers to make a request for exculpatory evidence from the NSA now that they are aware of the NSA Big Data sweep. As to prosecutors, as part of checking their files due to their duties to turn over exculpatory evidence to the defense, one can imagine them making such a request to NSA also.
For matters where the national security concerns of the government are high – such as suspected terrorists or foreign organizations – one can see why such information might not be disclosed. But, given the broad nature of Big Data (including storing information intentionally or not on American citizens and residents), the liberty interest of each defendant in each case would seem to have to be balanced against the intelligence agencies’ interest. After all, the defendant is only seeking evidence exculpatory to them so that they have the means to connect the dots to acquittal.
One might expect the National Security Establishment to be up in arms about this type of development, but that animosity should not deter prosecutors and defendants from seeking such data so that justice can be done and seen to be done in these cases.
If I was George Zimmerman’s lawyer, I certainly would be thinking about this as a way to set up a reversal if he is not acquitted. And, because of that, the State should be thinking about it to – as well as the judge. 911 phone records are key parts of this case, and these phone calls are key parts of establishing the guilt or innocence of George Zimmerman.
Food for thought.