Don't drink and drive, then post on Facebook

Photos on social networking sites come back to bite defendants


Two weeks after Joshua Lipton was charged in a
drunken driving crash that seriously injured a woman, the 20-year-old
college junior attended a Halloween party dressed as a prisoner.
Pictures from the party showed him in a black-and-white striped shirt
and an orange jumpsuit labeled "Jail Bird."
In
the age of the Internet, it might not be hard to guess what happened to
those pictures: Someone posted them on the social networking site
Facebook. And that offered remarkable evidence for Jay Sullivan, the
prosecutor handling Lipton's drunken-driving case.
Sullivan
used the pictures to paint Lipton as an unrepentant partier who lived
it up while his victim recovered in the hospital. A judge agreed,
calling the pictures depraved when sentencing Lipton to two years in
prison.Online hangouts like Facebook and MySpace have
offered crime-solving help to detectives and become a resource for
employers vetting job applicants. Now the sites are proving fruitful
for prosecutors, who have used damaging Internet photos of defendants
to cast doubt on their character during sentencing hearings and argue
for harsher punishment.
"Social
networking sites are just another way that people say things or do
things that come back and haunt them," said Phil Malone, director of
the cyberlaw clinic at Harvard Law School's Berkman Center for Internet
& Society. "The things that people say online or leave online are
pretty permanent."
The
pictures, when shown at sentencing, not only embarrass defendants but
also can make it harder for them to convince a judge that they're
remorseful or that their drunken behavior was an aberration. (Of
course, the sites are also valuable for defense lawyers looking to dig
up dirt to undercut the credibility of a star prosecution witness.)
Prosecutors
do not appear to be scouring networking sites while preparing for every
sentencing, even though telling photos of criminal defendants are
sometimes available in plain sight and accessible under a person's real
name. But in cases where they've had reason to suspect incriminating
pictures online, or have been tipped off to a particular person's
MySpace or Facebook page, the sites have yielded critical character
evidence.
"It's
not possible to do it in every case," said Darryl Perlin, a senior
prosecutor in Santa Barbara County, Calif. "But certain cases, it does
become relevant."
Perlin
said he was willing to recommend probation for Lara Buys for a drunken
driving crash that killed her passenger last year — until he thought to
check her MySpace page while preparing for sentencing.
The
page featured photos of Buys — taken after the crash but before
sentencing — holding a glass of wine as well as joking comments about
drinking. Perlin used the photos to argue for a jail sentence instead
of probation, and Buys, then 22, got two years in prison.
"Pending
sentencing, you should be going to (Alcoholics Anonymous), you should
be in therapy, you should be in a program to learn to deal with
drinking and driving," Perlin said. "She was doing nothing other than
having a good old time."
Santa
Barbara defense lawyer Steve Balash said the day he met his client
Jessica Binkerd, a recent college graduate charged with a fatal drunken
driving crash, he asked if she had a MySpace page. When she said yes,
he told her to take it down because he figured it might have pictures
that cast her in a bad light.
But
she didn't remove the page. And right before Binkerd was sentenced in
January 2007, the attorney said he was "blindsided" by a presentencing
report from prosecutors that featured photos posted on MySpace after
the crash.
One
showed Binkerd holding a beer bottle. Others had her wearing a shirt
advertising tequila and a belt bearing plastic shot glasses.
Binkerd
wasn't doing anything illegal, but Balash said the photos hurt her
anyway. She was given more than five years in prison, though the
sentence was later shortened for unrelated reasons.
"When you take those pictures like that, it's a hell of an impact," he said.
Rhode
Island prosecutors say Lipton was drunk and speeding near his school,
Bryant University in Smithfield, in October 2006 when he triggered a
three-car collision that left 20-year-old Jade Combies hospitalized for
weeks.
Sullivan,
the prosecutor, said another victim of the crash gave him copies of
photographs from Lipton's Facebook page that were posted after the
collision. Sullivan assembled the pictures — which were posted by
someone else but accessible on Lipton's page — into a PowerPoint
presentation at sentencing.
One
image shows a smiling Lipton at the Halloween party, clutching cans of
the energy drink Red Bull with his arm draped around a young woman in a
sorority T-shirt. Above it, Sullivan rhetorically wrote, "Remorseful?"
Superior Court Judge Daniel Procaccini said the prosecutor's slide show influenced his decision to sentence Lipton.
"I
did feel that gave me some indication of how that young man was feeling
a short time after a near-fatal accident, that he thought it was
appropriate to joke and mock about the possibility of going to prison,"
the judge said in an interview.
Kevin Bristow, Lipton's attorney, said the
photos didn't accurately reflect his client's character or level of
remorse, and made it more likely he'd get prison over probation.

"The
pictures showed a kid who didn't know what to do two weeks after this
accident," Bristow said, adding that Lipton wrote apologetic letters to
the victim and her family and was so upset that he left college. "He
didn't know how to react."
Still, he uses the incident as an example to his own teenage children to watch what they post online.
"If it shows up under your name you own it," he said, "and you better understand that people look for that stuff."


That kind of scared me to know "everything" we say online is permanent like that, and can come back to haunt us later. All the fights I've had on CS, sensless drama and such.. its all lingering internet wise, in some cyber hell some where waiting to jump out and bite me in my butt.