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At the risk of appearing obsessed, I write a second time about the separation of Jeff and Makenzie Bezos. This time my subject is again borrowed from the Wall Street Journal, but it’s not about the money. Rather, the Journal produced a prominent and adulatory article about the divorce announcement by the couple (actually Jeff) on Twitter. I thought it interesting because anyone who separates from a spouse or long time relationship is left asking; how do I let people know?

In olden days, this was done either by phone or in person. It creates an awkward moment because if you are the person getting the news, you are not certain just how to react. After the “I’m sorry to hear that….” the question becomes how far does the inquiry go? It seems cold to stop with the vague “I hope it works out.” Yet, is the person making the announcement asking for absolution? Therapy?  There is no happy answer.

So, I think there is merit to a public announcement and despite my general abhorrence of Twitter, I see benefit in getting the word out. I don’t know whether it requires a “joint” announcement as the Bezos posting suggested. For most of us, separation does not suggest that we need to “calm the market” in Amazon stock. However, the many lawyers and therapists who commented upon the Bezos announcement liked the idea of controlling the message and communicating that the problems either have been or will be handled with civility.

If you read what was posted by Mr. Bezos, it was a bit treacly.  In part, it says:

“After a period of loving exploration and trial separation, we have decided to divorce and continue our shared lives as friends.”

Perhaps this was all so amicable, but the news was immediately accompanied by reports that Herr Bezos already has a girlfriend.  It also throws shade on the ambiguous phrase “loving exploration.”  But, back to the main point… People want to know if you are separating.  If they truly care about you, they would like to know things will be civil even if that is merely an aspiration. It is also a good way to signal to your spouse how you want him or her to respond. The beauty of the electronic approach is that it gets the word out and allows friends to control a responsive dialogue on their own terms.

I don’t do Twitter because I have witnessed a thousand prominent people see their public persona crash and burn. They did not think before they wrote. Twitter is best known as a place where people say stupid things.  But perhaps Twitter might actually become an instrument of civility rather than a semantic battleground.

What to say? Well it may be ideal to issue a joint announcement. It is rare for couples to be finished with each other at the same time.  Usually, one spouse is the catalyst. If that is your situation, keep it simple and avoid what will be perceived as over the top sentimentality.

“I wanted to let friends and family know that (Jeff ) and I are separating.  I am hopeful that this process will preserve our dignity and not draw you into a conflict where you will feel the need or desire to take a side.  I hope our friends will remain just that although we may no longer be a couple.”

Message sent.  Now, when you run into the neighbor in the frozen food aisle, they “know” and can ask either how it’s going or confine the conversation to whether chicken Florentine is good with arugula.  The recipients also know that you want to be an adult during the process.

So am I on the road to conversion as a Twitter acolyte? Perhaps. But then there is the recurring fear that if I joined the social media band no one would “follow.”

She was 21 and a college student. Anyone who recalls being 21 will also recall that it is an age of experimentation. Today she is dead, murdered by a person whom she dated for a month. Her killer was a 37-year-old man with a long criminal history of sexual abuse. It seems that toward the end she figured this out and sought help from law enforcement. However, where the relationship has a consensual element, it is difficult for law enforcement and the judiciary to figure out where and how the consent ended.

Ours is an age where relationships are often formed electronically. As divorce lawyers we encounter a fair number of people who engage in that medium and many are happy with the results. But we also know that people online are not afraid to portray themselves as a little or a lot different than the humans they really are. It appears that Lauren McCluskey’s killer, Melvin Rowland, presented himself as someone quite different than his history later revealed.

How do you protect yourself or your loved ones from themselves? There is actually help and it is an online resource. Pennsylvania has an online system by which anyone can examine the criminal record of another state resident. It’s not the easiest thing to navigate, but it can be done. The other challenge is that you do need some accurate information about the person you want to know about.

Go to The Unified Judicial System of Pennsylvania Web Portal at https://ujsportal.pacourts.us/CaseInformation.aspx. In the blue banner at the top you will see “Case Information”. There is a drop down menu for Court Case. This leads to another drop down that identifies four different courts where criminal matters are decided. Serious criminal charges, the kind for which Melvin Rowland had been convicted are handled in the Court of Common Pleas. Minor criminal matters (known as summary offenses) are handled in Magistrate Courts. In Philadelphia, it is called Municipal Court. But serious crimes, crimes defined as misdemeanors and felonies, these will be found in the Common Pleas site.

Once you open that Common Pleas page, it offers a page called Common Pleas Court Docket Sheets. Tab down and you will see a reference to Search Type. Click on the drop down arrow and select Participant Name. You will be prompted to fill in three items, Last Name, First Name, Date of Birth. You don’t have to have a date of birth to do the search, but if the name you are searching is a common one, realize that you may find a dangerous history related to someone you have misidentified. We’ll revisit that in a moment.  Once you have the First and Last Names filled in scroll down to the Docket Type category and using the drop down arrow select Criminal and hit the Search button. Any matching criteria will be displayed at the bottom of the page.

If there is a history it will displayed at the bottom of the page as what is called a Short Caption that says Comm. v. Last Name. Note the case status. “Active” means that the case is still pending and criminal charges have not been disposed either by trial or plea. A “Closed” file is one where the case has been disposed of. That would mean a guilty plea, a conviction, a finding of not guilty or nolle pros (dismissal of the case without conviction). Before going any further, look out on the far right and you will see the birth date of the person charged. That may give you a clue when the person you are looking for has a common name. You may not know the date of birth, but this data will at least give you an indication of the age of the person charged.

Now hover on the icon on the far left and a drop down box offers “Docket Sheet” or “Court Summary”. You will want to look at both. The Docket Sheet will show you the date of arrest, the place where the arrest was made and a recitation of all charges. Realize that law enforcement is often known to “overcharge” as a means to get the defendant to admit to some charges. Understand as well that some crimes are pregnant with hysteria such as “terroristic threats.” The dockets will show the history of the charges. It is common for many to be dropped, often in exchange for pleas of guilt on other charges. In a word, these cases are negotiated far more often then they are tried. Unfortunately, you won’t see online the facts or incident giving rise to the charges. You will also see references to a “Grade”. M is for misdemeanor; a serious offense for which a person can face up to a year in the county jail. F is for felony which is a crime involving a sentence of more than a year in a state prison. S is for summary. These are petty offenses but still reflect either willful misbehavior or a person’s incapacity to regulate their behavior.

So, let us assume that you go to all of this trouble. These are the official criminal dockets maintained by the courts in Pennsylvania. The database for Pennsylvania does not include federal crimes or crimes committed outside of Pennsylvania. Another resource that can be quite helpful is The Dru Sjodin National Sex Offender Public Website, which is a national database of convicted sex offenders.

As we all know, there are both laws to protect us and people employed to enforce them. But, self-protection can be far more effective. They can be wrong, but is that a chance you want to take? Perhaps your special someone has been wrongfully charged and those charges will ultimately be dismissed, or the person acquitted. It does happen and not infrequently. Are you willing to bet your safety on being right? If the charges involve controlled substances, you may be dealing with addiction issues that place you in physical danger.

One thing this writer will bet on. Had a 21 year old University of Utah student had knowledge of these kinds of tools available and made use of them, she could have found out that Mr. Rowland had been guilty in 2004 of sex crimes involving children ages 13 and 17. Armed with that knowledge, the outcome in this story may have been different.

In a published decision reported on March 15, 2018, the Superior Court has addressed what it takes, at least in a criminal setting, to tie a Facebook posting to a defendant charged with a serious crime.

Tyler Mangel and Matthew Craft were charged with assault in Erie County.  In the course of the prosecution, the Commonwealth filed to secure Facebook subscriber information.  That motion was granted and at trial, the prosecution filed a motion to introduce information obtained from Facebook, which it saw as probative of guilt.  The evidence consisted of screenshots and mobile device “chats.”

When the police officer testifying about the investigation was asked what clues found in the chats could be traced to Defendant Mangel’s Facebook account, the defense counsel objected. The Trial Judge then posed this question to the witness asking whether the officer, with a reasonable degree of certainty could testify that the Defendant published these electronic statements.  When the witness testified that the account was registered in the Defendant’s name, the Court sustained the objection on the basis that ownership of a social media account could not be equated with responsibility for all publications made on that account.  The Commonwealth appealed.

Defense counsel ably created “issues” for the prosecution.  The investigating officer did not secure an IP address for the account she was testifying about.  This would have provided background about the computer, network and location of the computer at the time of the post.

Mangel is not the first foray into this evidentiary minefield.  Instant messages and cell phone text communications were the subject of In the Interest of F.P. a minor, 878 A.2d 91,96 (Pa. Super. 2005).  In October 2011, we wrote about Com. v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) aff’d 39 A.3d 705(Pa. 2014).  In 2016, the Third Circuit ruled that Facebook authentication required a preponderance of evidence.  United States v. Browne, 834 F.3d 403 (3d Cir. 2016).

Judge Stevens sum up the problems of authentication as the same with all electronic media; “anybody with the right password” can become someone they are not and send messages pretending to be the account holder. The proponent of social media has the burden to corroborate the message with the alleged messenger, by either direct admission or contextual clues confirming the identity of the sender.  In support of this need for “supporting evidence” aside from mere ownership of the account, the Court referred to U.S. v. Vayner, 769 F.3d 125,131 (2nd Cir. 2014); U.S. v. Jackson 208 F.3d 633,636 (7th Cir. 2000); Griffin v. State 19 A.3d 415,423 (Md. 2011); Com. v. Purdy, 945 N.E.2d 372, 381 (Mass. 2011); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014); and, Deering v. State, 465 S.W. 3d 668, 672 (Tex 2015).

In this case, the defendant did not admit the Facebook account was his or admit to making the posts.  The fact that the name, hometown, school district and photos posted seemed to correspond to the Defendant was insufficient.  The fact that there was another Facebook account for “Tyler Mangel” in the Defendant’s hometown only added to the certainty of keeping the electronic evidence away from the jury and showed that the police were wrong in offering that there was only one person with such an account in the Defendant’s hometown.  The timing of the postings was also missing from the record.  Moreover, there was nothing distinctive about the posts, which would suggest the “signature” of Mr. Mangel, the Defendant.

This is a criminal case and one may argue that a civil case might be decided differently.  But the Rules of Evidence governing authentication do not vary from criminal to civil, meaning that electronic evidence needs to be considered more carefully than trial lawyers might otherwise want to think.