Trial Day 7: Defense Attorney Calls State’s Attempt at Getting Some Evidence in “Desperate,” Facebook and Other Electronic Records Submitted Over Defense Objections

Trial today consisted of a long series of tedious evidence submission processes. The defense objected to many of the state’s attempts to submit evidence collected from computers seized during the raid when Brian Jacob Church and Jared Chase were arrested, but most were overruled. The defense did win some of their arguments, though, preventing some evidence from getting in and ensuring other important pieces of evidence got in over the state’s objections. Undercover Chicago cop Mehmet Uygun, aka “Mo” or “Turk,” was expected to take the stand but did not because the proceedings today drug out for so long. He will take the stand at 10am on Thursday.

The first cop to testify was from the Regional Computer Forensics Laboratory. He testified that he had examined Church’s GPS device and recovered location data from it. The state tried to submit evidence about an address listed under a “Jared” in the address book on the device but the defense objected, saying this person was clearly not Jared Chase.

Defense attorney Tom Durkin called the state’s attempt at getting this evidence in “a desperate move.” Later on in court, Durkin argued that the logical fallacy in the state’s case is that they’re only charging the NATO 3 with conspiracy, yet they keep trying to submit into evidence possessions, statements, and actions of other people to prove that there was a conspiracy. Further, he said he still did not know what the alleged terrorist act was based on the state’s case so far.

The state went on to try to get more circumstantial or completely irrelevant evidence in. They tried to argue that a computer seized in the raid that had an internet browser history record of Betterly accessing his Facebook account in March 2012 should be admitted. The NATO 3 came to Chicago in April 2012 and were arrested on May 16, 2012. The judge said the record showed it was last accesses on March 2, 2012 and it was impossible to tell who created and saw it, so he did not allow it. Defense attorney Molly Armour also successfully argued that some of the Facebook conversations the state was submitting should be further redacted to not be prejudicial against Betterly. However, the prosecution was successful in getting some news articles recovered from computers into evidence.

Next, the state read stipulations about the Facebook records they had received. Both sides agreed that Facebook is a social networking site, users have to sign in with an email address and password, and Facebook handed over the records in response to a legal request as a normal course of business.

The purpose of this stipulation was to allow conversations and posts from the defendants’ Facebook accounts into evidence. The state also called a forensic examiner who works for US Customs and Border Protection but is assigned to the Regional Computer Forensics Laboratory to authenticate the recovered data. The examiner testified that she had compared internet history records from some of the computers seized in the raid to the Facebook records and had verified that they were matches. However, she admitted she could not tell the exact dates the websites in the internet history were accessed (only the month and year) or who accessed them. She also admitted that neither of the computers she was testifying about today belonged to Church and that she had not been questioned by the prosecution about the one she knew belonged to Church.

During cross-examination, defense attorney Molly Armour asked the forensics examiner to verify that there were also photos found in Betterly’s account. One photo was of Betterly’s young son standing next to a sign with Occupy Ft. Lauderdale’s rules, including things such as no drugs or violence. The child was identified in oral arguments between the attorneys outside of the presence of the jury, but not to the jury when the forensics examiner was being cross-examined.

After brief testimony, the state excused the examiner and tried to read the Facebook records aloud to the jury, but the defense quickly objected since that is not the process for getting evidence onto the court record. The prosecution then scrambled to catch the examiner in the hallway as she was preparing to leave the courthouse so they could recall her. Once she was back on the stand, the prosecutors began a laborious process of projecting the transcripts of Facebook conversations and asking her to confirm the sender, receiver, date, and content of each post so the messages could be read aloud to the jury. They did not have enough copies of this document to both project on the screen and show to her directly, so they had to borrow a copy from the defense. After the first transcript was finally read, defense attorney Deutsch asked the judge if they could go through that process in chambers so the jury would not have to sit through that all day. The attorneys then went back into the judge’s chambers to do this, emerging more than half an hour later for the prosecutors to start taking turns reading conversations and wall posts to the jury.

While this whole endeavor was clearly the state grasping at straws and trying to get some measure of so-called evidence onto the record, the Facebook posts did reveal some useful information. The state first went over Betterly’s records. Throughout the case, the state has repeatedly claimed that he said on Facebook “u cant apologize after throwing a molotov.” They have presented this as a serious comment that showed his intent to commit terrorism. The Facebook record showed “lmao” (“laughing my ass off”) in front of this comment, however, as well as other signs of jokes all throughout the conversation. The state has also said Betterly posted that he may “catch charges in Chicago” and that this showed his intent to commit criminal activity. This post was part of that same joking conversation.

Betterly’s Facebook posts also discuss the video posted of the NATO 3 being harassed and threatened by the Chicago cops in early May 2012. During this incident, they were surrounded by eight cop cars during a traffic stop. Betterly was discussing this video with a friend one day before he was arrested.

The state next went over Church’s Facebook records. They read aloud several conversations between Church and friends or family members in which he discussed his outrage over violence being inflicted on innocent people, especially children. He posted several comments about how the injustices in the world had to be corrected and he was going to be part of that. The state, of course, is presenting these posts in an attempt to paint him as a dangerous terrorist instead of a social justice activist. They also displayed photos from his Facebook account to bolster this narrative.

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