6/20/2019

14 Responses to “Perry Mason Moment in San Diego”

1. This whole turn of events is mind boggling.

   As was this, on June 4th:

   A military judge has removed the lead prosecutor in the high-profile case of a decorated Navy SEAL accused of war crimes in Iraq.

   ….

   Lawyers defending Special Operations Chief Edward Gallagher accused prosecutors of spying. They uncovered a digital tracking device that was sent in an email to defense attorneys and a journalist covering the case.

   The lead prosecutor, Navy Cmdr. Christopher Czaplak, admitted in court to emailing the hidden software. He said the code simply tracked the location and time of messages as recipients opened their emails.

   It was embedded beneath his e-signature, in the logo of a U.S. flag and a bald eagle “perched on the scales of justice,” according to Navy Times.

   ….

   At least four bar associations have denounced the use of such tracking software. The New York State Bar Association, of which Czaplak is a member, said it “may violate federal or state law.”

   That should be a career-ending admission. Cmdr. Czaplak should not only lose his license to practice law, but do hard time at the U.S. Disciplinary Barracks at Fort Levinworth and then be dishonorably discharged in my opinion.

   Beldar (fa637a) — 6/20/2019 @ 9:50 pm

   
   

2. Microsoft Office has long had a “Add and request read receipts and delivery notifications” feature, through which one can automatically ask the recipient to permit his own email client to send an email receipt and/or “read” (opened) notification. Other email clients probably do, too. But (italics mine):

   In Outlook, the message recipient can decline to send read receipts. There are other scenarios where read receipts are not sent, such as if the recipient’s email program doesn’t support read receipts. There is no way to force a recipient to send a read receipt.

   And you can in fact change your Outlook settings to automatically refuse, by default, to send read receipts.

   That’s okay. I received an email this week from a Harris Country District Court’s trial coordinator, advising all counsel of information regarding an upcoming preferential trial setting, and I was happy to authorize my own Outlook email client to send the read receipt she’d requested.

   But this was not that. This was secret and gave the recipient neither notice or choice. I think that’s an unethical for any lawyer to ever do, and in the case of a prosecutor, an unlawful search under the Fourth Amendment.

   Beldar (fa637a) — 6/20/2019 @ 10:14 pm

   
   

3. The description doesn’t sound like a read receipt.

   If an email includes a link to an image, you can tell when they open the mail by checking server logs for when the image link was referenced. If you put a different link in every message (all of which could point to the same image on the server) you can track every time a message is opened by keeping a record of the url embedded in each message.

   Outlook does not automatically retrieve images that are linked in an email, to prevent this privacy attack, so it’s unclear whether he somehow forced or tricked the target’s email client to do so.

   Dave (1bb933) — 6/20/2019 @ 10:39 pm

   
   

4. Sounds like a whole season worth of NCIS material here…

   Dave (1bb933) — 6/20/2019 @ 10:41 pm

   
   

5. Funny you should mention NCIS, Dave (I assume referring to the TV series of that name: From the Navy Times on June 7th:

   In 21-page decision handed down Friday evening in San Diego, Navy Capt. Aaron Rugh found that a military prosecutor and senior Naval Criminal Investigative Service officials concocted a surveillance operation on defense attorneys, their experts and Navy Times designed to transmit HTML GET data to a law enforcement system for analysis.

   Rugh determined that scrutinizing the raw data, using only open source methods without a warrant or court order, “may have been able to reveal patterns in defense behavior resembling attorney work product” in a case where Gallagher, 40, has been charged with murdering a wounded Islamic State fighter and shooting at civilians in Iraq in 2017.

   ….

   Although Czaplak and the NCIS officials appeared to halt their surveillance within three days because their plot was discovered, their operation violated Gallagher’s Fourth Amendment rights against unreasonable searches and that “constituted a violation of a legal standard,” Rugh found.

   Yup. More:

   Most damning, the NCIS HTML GET “intrusion created a crisis in the public’s perception of the fairness of the accused’s court-martial” and reeked of apparent Unlawful Command Influence, or “UCI.”

   Although Gallagher’s attorneys had asked Rugh to dismiss the case, the judge balked, saying that military appellate courts had ruled that every effort should be made to salvage it.

   Rugh said that he’d already acted three times to punish the prosecution — by removing Gallagher from pretrial restraint; disqualifying Czaplak as prosecutor; and delaying the trial to June 17 to give the defense more time to prepare for it.

   But Rugh added two more remedies. He granted the defense team two additional peremptory challenges, for a total of three, to potentially sweeten the jury pool for Gallagher.

   Many pooches have been screwed.

   Beldar (fa637a) — 6/20/2019 @ 10:52 pm

   
   

6. Yeah, I was referring to the TV show(s), none of which I have ever actually watched.

   “HTML GET” is basically what I described. Make the client retrieve a message-specific URL from your server when the message is opened, and record the when that happens (and also, the IP address the request came from).

   Any guess why knowing when counsel read your email would be worth pulling something like this, though?

   I suppose it might allow you to determine not just when the mail was read, but where (and thus, with some inference, by whom).

   Dave (1bb933) — 6/20/2019 @ 11:10 pm

   
   

7. Dave:

   Let’s say you’re a Navy prosecutor and you learn that one of the defense team has suddenly shown up in, say, Okinawa. He’s there for one day, then shows up in Bahrain. These are places where the Navy has bases. The defense lawyer returns to San Diego.

   You ask yourself, “Hmmm, is there a potential defense witness we don’t know about who might be stationed at either of those bases?” You check the personnel billeted there. Turns out there was someone at both bases who happened to have also been in Iraq at the same time as the incidents of which Chief Gallagher stands accused occurred. You check further: Both of them have just been approved for travel that will put them in San Diego for your projected trial date.

   So much for the defense calling a surprise witness.

   Beldar (fa637a) — 6/21/2019 @ 12:05 am

   
   

8. Diabolical.

   Dave (1bb933) — 6/21/2019 @ 12:30 am

   
   

9. Dave,

   You are right that most mail clients can be set to refuse linked images, but to do so will make it tedious to get cute cat videos, so most people allow it.

   Kevin M (21ca15) — 6/21/2019 @ 1:24 am

   
   

10. The problem with the “surprise admission” was that none of this had come up in depositions. At trial he testified under a blanket grant of immunity so his admission has limited blowback, whether true or not. Maybe they can prove perjury.

    Kevin M (21ca15) — 6/21/2019 @ 1:29 am

    
    

11. Yeah, I was referring to the TV show(s), none of which I have ever actually watched.

    Too bad, it was good show for a long time, until it started shedding its best people. The first 5 seasons or so are really quite entertaining. Deep meaning needs to be found elsewhere.

    Kevin M (21ca15) — 6/21/2019 @ 1:32 am

    
    

12. This is a very incompetent team of prosecutors. One might think that they are trying as hard as they can to lose the case.

    If they thought the defense was illegally leaking information that was supposed to be seen only by the prosecution, the defense and the judge, they should have applied for a warrant for the tracer. Better yet, they should have asked the FBI to do it.

    An average lawyer, and not an especially brilliant one, would have dealt with the “Perry Mason moment” much better, too. Gallagher had inflicted fatal wounds on the ISIS fighter. Slashed his carotid open. He was going to die absent a medical miracle. All Scott testified to, really, was that he may be an un-indicted co-murderer. That may still be salvageable.

    But for crying out loud! Their own witness catching them by surprise after they had granted him (transactional) immunity? That in itself is such a big screw-up as to seem deliberate.

    nk (dbc370) — 6/21/2019 @ 5:52 am

    
    

13. But it does look like they might have gotten the jury to believe that they were tricked by their witness and they, themselves, did not try to hide the testimony from the jury, so that’s something anyway.

    nk (dbc370) — 6/21/2019 @ 6:15 am

    
    

14. Good points, typically well put, by nk in #12 and #13!

    These prosecutors are going to have to argue Hanlon’s Razor in their own defense during closing argument, though, and that’s just not a good look. And the trial judge’s rulings suggest to me that he’s anticipating the possibility of an acquittal, on which he runs no risk of being overturned on appeal; if he’s wrong, even though he’s so far refused the defense motions to dismiss the whole case as a sanction for prosecutorial misconduct, he could still ignore the verdict and set it aside in post-verdict proceedings if it goes against the defendant.

    Beldar (fa637a) — 6/21/2019 @ 7:51 am