eLessons Learned - Full Article

Dear Criminals, We Can Use the Internet, Too.
Sincerely, Law Enforcement

All content that you put on the internet, whether you think it is private or not, is out in the open and can be accessed by anyone.  Think about some of things you may have on your MySpace or Facebook pages, or may have posted on your blog or might have tweeted.  Do you want your boss or the police or the courts to see them?  If not, you’d be wise to avoid posting anything that could expose you to the wrath of authorities.

In Clark v. State, police and prosecutors used statements on Ian Clark’s MySpace page to help convict him of first-degree murder. Granted, your dirty little secrets probably won’t end up as badly as Ian Clark’s, but why take any chances?

In Clark, police arrested Clark after his fiancée came home from work and found her two-year-old Samantha blue and unresponsive, and Clark lying on the couch, drunk with a blood covered blanket over him.  After being asked about the blood, Clark stood up and dropped Samantha’s body on the ground and told his fiancée that Samantha was breathing.  The fiancée tried unsuccessfully to wake Samantha, and then tried to call 911.  Clark told her to put the phone down, then lit a cigarette and turned on the TV.

As the fiancée tried repeatedly to call 911, Clark stopped her by taking the phone away from her and by trying to take her away from the phone.  Undaunted, the fiancée finally managed to call 911 and asked the operator for help; but then Clark punched his fiancé in the back of the head.

The fiancée finally completed her call to 911, even with Clark still trying to stop her, put a diaper on Samantha and went outside to meet a police officer.  The reporting officer arrested Clark at the scene and Clark told the detective “F* it. It’s only a C felony. I can beat this.”  The extant of Samantha’s injuries was appalling and included multiple broken bones, an atlanto-occipital dislocation, and nearly twenty additional separate injuries.  Neither one fall, multiple falls, nor multiple household accidents could have possibly caused Samantha’s injuries, according to the ER doctor.

The State charged Clark with murder.   Clark originally presented both a voluntary intoxication and insanity defenses; but withdrew them and rested his case on the basis that his actions were reckless and not intentional.  In order to rebut this assertion, the State used Clark’s description of himself that he posted on his MySpace page.  This description included such choice statements as: “Society labels me as an outlaw and criminal” and “if I can do it a get away … why the f* can’t you.”

Clark argued that these statements should have been excluded under Indiana Evidence Rule 404(b), which provides: “Evidence of other crimes, wrongs, or acts is no admissible to prove the character of a person . . . . ”  The court held that these statements were properly admitted because they were only statements about Clark and were made in reference to him by him, not prior criminal acts; and stated: “It was Clark’s words and not his deeds that were at issue.”

Clark brought his character into issue when he argued that he had only acted recklessly and presented evidence about his state of mind at the time of the incident.  This defense strategy enabled the prosecution to use Clark’s MySpace statements to rebut those arguments.

If you have information posted on the internet, through MySpace, Facebook, Twitter, or anything else, check what you have written and make sure that it is actually something that you wouldn’t mind the police or your boss reading.  Specifically, don’t write anything about being an outlaw and getting away with crimes — unless you think you would enjoy prison.

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Comments (10):

  1. Sean,
    Whilst this post is undoubtedly a strong case for:
    ‘Not posting potentially incriminating statements or photographs on publicly available website, especially if they are directly traceable back to you.’
    Was it not possible to find a less disturbing and tragic case than the senseless death of Samantha Muchowicz to illustrate your point?

  2. Even though you take the all too common, “here’s what you should be doing” tone to this post. Maybe this is one time where we rejoice in the users stupidity and the fact that the Internet helped shine the light of justice on said bozo through his own words! Hooray, we can only hope more criminals help to save time, money and effort by burying themselves online! Thanks to everyone for a hopefully speedy and efficient trial. We can only pray that others don’t follow your advice and continue to dig themselves in neck deep with the help of social media and the Internet.

    • @Justin, I don’t read Sean’s post as providing “advice” on how to do illicit conduct on the internet. Rather, its a reminder that “Internet Privacy” is the great oxymoron of the 21st century. I think its great when law enforcement uses technology to catch criminals.

  3. Would this have been admissible if Clark set his Myspace account to private?

  4. All very good points; However, believe it or not, there IS such a thing as ‘Internet Privacy.’ The problem is that since the internet is still fairly new, many of its users either misunderstand the nature of the sites that they use or ignore clear, albeit fine-printed, warnings.

    Facebook, Twitter, and MySpace are often misunderstood. Some see them as a personal journal or diary — however, they are not. These online social networking (OSN) sites are more analogous to a bulletin board or highway billboards. OSN sites are anything BUT private. I’m glad the court in Clark v. State saw it that way.

    On the other side of the issue, today an Italian court ruled against Google over a breach of privacy on YouTube. It was breaking news, so I don’t know too many details. The case centered around a video posted on YouTube, apparently making fun of an child — I believe he was autistic. This ruling could have significant implications for YouTube so it’s something to keep an eye on.

    In another case — many of you have probably heard of it — a public school was caught spying on students through webcams installed on school-issued laptops. Spying through webcams is a matter of Internet Privacy, and this case will certainly be interesting to watch.

    These two cases illustrate where Internet Privacy exists. In order to protect your privacy on the net, its important for one to be aware what you putting on the web and where. Posting incriminating evidence on Facebook of yourself is not private, but say someone remotely activates your webcam and catchs you doing something you shouldn’t at home, thats a violation of privacy. Its a very blurry line between what is private and what is public on the internet if the type of information and the location of said information on the internet is not taken into account.

  5. Maybe there isn’t a reasonable expectation of privacy in a post on a public myspace page(anyone with internet access can view it), but what about a private facebook page? Wouldn’t any attempts to access such a page violate the user’s reasonable expectations of privacy?

  6. The lesson here is a good one. Nothing you put on myspace is truly “private” even when you make your page private. Just like any other webpage there are ways around security protocols, and several social networking sites allow employers to view so-called “private” pages without athorization from the creator of the page.

    • @Evan Rosenberg,

      It’s a good perspective, and certainly one way of looking at it. My own view: only contracts and self-control will save individuals from the potential exposure that placing personal information out on the internet can bring about. Let us not forget, it is called the World-Wide-Web for a reason. Everything placed out into the web is available for access, whether authorized or not. Having contracts with employers that state personal internet-based information can not be used as a reason for termination may be another way of solving the dilemma. I know this is a crude contract, but perhaps the best way to protect oneself from the hazards of one’s personal information being exposed, aside from never posting at all, is to admit through contract that “Yes, there’s stuff out there. But it doesn’t concern the business and therefore cannot be used against me.”

      Good luck finding an employer who wants to go along with that, though…

      • @Frank [eLL Editor-in-Chief], I couldn’t agree more. I think the best advice to give anyone who wants to avoid the unintended exposure of private information is to never post that type of information anywhere on the world-wide-web…regardless of so-called privacy settings.

  7. Personal use of the internet can be viewed as an extention of one’s personality. In this instance, I am relieved that the legal authorities were able to “nail” Clarke on his negative attributes.

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