Plea or Trial (Part 4 – section 1 of 2)

The fourth consideration in this series of Plea or Trial is your FULL DISCOVERY!

Let me be clear from the start here – I believe this area has the most potential to make or break your case. This is also an area mostly overlooked. Do not make that mistake!

April 2024 – Bakersfield CA – “The sheriff’s investigator in Bakersfield CA failed to preserve exculpatory evidence and made statements contradicted by others at trial.” That man was acquitted of charges in a proactive sting.

Now think about the origins of a proactive sting – these were introduced in order to document evidence that was difficult to obtain. The police would find out about a certain ongoing crime, and set up a scenario that could lure a known criminal into a preconceived trap. They would then have all the evidence they needed to fully prosecute.

Enter proactive sex stings – 1. there is no known criminal activity in progress – proactive stings on adult sites merely spread a wide net for any law abiding citizen. 2. LE clearly uses ambiguity and confusion to lure and incite the manufactured crime. 3. The stings operation plan and mission statements do not jive with tactics used. 4. Discovery given freely is typically a hand picked sampling of all that should be given. Just enough to show how a prosecutor will present the ‘evidence’ in court but not the parts that show ambiguity, hesitation, and disbelief.

If questioned about missing or altered evidence, LE will say it was a one-off accident. There are a LOT of one-off accidents. Proactive stings are designed to collect data completely – there should be no ‘accidents’.

What should your discovery hold? The police operational plan, personnel logs, website used, their terms of use, the ad placed, any photos used, full communications from first contact until arrest. The targets after arrest processing including polygraph and interview.

IF ANY INFORMATION IS NOT FORTHCOMING, DO NOT MAKE ANY DECISIONS ON PLEA OR TRIAL!

If the state prosecutor tells you they cannot get certain pieces of evidence, your lawyer needs to hold a hearing in front of the judge compelling the information. If the evidence is still not given, then a request for dismissal is in order, or at a minimum sanctions for spoilage of evidence!

At this point, and unfortunately well before, your attorney will likely be pushing you to take a plea deal. That is the easiest thing to do, and may well be in your best interest. But if you were entrapped, as many of us have been, then you need to hold out a bit longer.

After you have your complete discovery – you will need to have a forensic investigation done on the material. I will explain what that looks like in my next post.

But let’s look at what often happens at this point in these cases… LE does not want to give you the evidence that proves, or even shows doubt, as to your innocence. These sting campaigns are fundraising for the department, team, and state. Once your attorney has put the pressure on, and been through the courts to compel any missing evidence, attorneys will often try to investigate the evidence themselves. Here’s why that’s a bad idea…

Many targets reach out to me asking if forensic investigation is necessary. I often hear them say they are comfortable having their Lawyer look through the evidence for tampering. Here’s the problem, and you will recognize the truth of this when you read this… more and more in cases, and especially in proactive stings, the ‘evidence’ is electronic data! Your lawyer is NOT an IT professional. The good news? Neither are the police who often manipulate and alter the data!

I do believe an experienced lawyer could find simple evidence tampering. But let me preface that statement with the fact that our first attorney did not find any tampering. Our second trial attorney’s forensic investigator found the simple manipulation within hours of receiving the data.

Why does this matter?!?

Finding evidence tampering by LE could mean the difference between a plea deal and a dismissed case ‘in the name of justice’!

Read the outrageous things investigators have found in the next post which shows why you need a digital forensic investigator.