Data was initially dismissed by police and trial counsel
A recent wrongful conviction case turned on a lawyer’s technical savvy.
The Court of Appeal of Ontario found a man was wrongly imprisoned for robbery and assault after the police and trial counsel did not authenticate key data from a smartphone app.
The Dec. 17 decision, R. v. Richardson, 2019 ONCA 996, set aside convictions and entered acquittals for appellant Lance Richardson on all counts.
Richardson was previously convicted of violent robberies of a man and a woman who were having a late night picnic behind the Yorkdale Subway Station in Toronto. At the time Richardson was arrested, he showed police officers voicemails from his friends called “Toti” and “Kemistry,” stored in an app called Voxer.
The police officer already knew that one of the hoodie-wearing perpetrators was called Kem, according to a factum from Richardson’s appeal lawyer.
In the messages, Richardson and Toti discuss mutual friend Kem. Richardson asks Toti, “What exactly happened, if you don’t mind me asking?” Toti replied by describing how Toti and Kem perpetrated the robbery.
Richardson also showed the police officer an Instagram photo of Toti. The victims described the perpetrator as about 5’8” to 5’9” tall — Richardson is 6’3”, while Toti was already listed in the police database as 5’71⁄2”.
However, the officer did not seize Richardson’s mobile phone because she said the images of Toti did not match the victims’ descriptions, and the Voxer app was “not conclusive” as to “who actually made the recording or when it was made,” the factum said. On multiple occasions, Richardson also urged his previous counsel to get the messages from the Voxer app because the app contained Toti’s admission and would prove Richardson’s innocence.
Nonetheless, Richardson’s phone containing Toti’s confession never made it to trial. Trial counsel opted to focus mainly on GPS evidence from the phone, to no avail. Richardson was not chosen in a photo lineup by one of the victims, but the other victim did select Richardson’s photo. The trial judge decided that despite the height difference, Richardson, rather than Toti, better fit the description of the second perpetrator as “thin olive toned face, skinny nose.”
Carolin came in to represent Richardson on appeal. Despite the failings of the previous lawyers, Carolin says that he was easily able to authenticate the messages four and a half years later with a forensic expert because they were preserved independently on the server of the app company themselves.
Ultimately, the Crown agreed the messages were “relevant, credible and could reasonably have been expected to affect the result at trial when considered with the other trial evidence,” and conceded that Richardson’s convictions amount to a miscarriage of justice.
When entering text messages into evidence, it sometimes raises questions as to whether parts of the record have been deleted, Carolin notes. But in this case, the third-party app allowed authentication even when the appellant could not access his phone.
“Usually I leave the investigating of my clients to the police. However, there are there are occasions where my client says that they have alibi evidence, or they have something exculpatory on their phone or other digital media — or maybe in surveillance video,” he says. “Then I would certainly take immediate steps to preserve that.”
The victory is bittersweet since, as Carolin notes, Richardson will not get back the 15 months he spent in jail or more than five years that the case has loomed over his life. Carolin says that the case also serves as a reminder of the unfortunate history of wrongful convictions connected to photo line-ups where the assailant is a stranger.
“It is not isolated, unfortunately, in our criminal law. And this ‘specter’ of wrongful convictions continues to ‘haunt’ the criminal law — which is a line from the Court of Appeal itself,” he says. “It's a sign that we need to be really careful when we're dealing with cases where the essence of the prosecution’s case is a victim, who's a stranger to their assailant, identifying their assailant.”