In UT rape case, a battle over social media access - Fox29 WFLX TV, West Palm Beach, FL-news & weather

In UT rape case, a battle over social media access

picture by AMY SMOTHERMAN BURGESS picture by AMY SMOTHERMAN BURGESS

Bridget Boland gave up her team and her university, lost a semester of schooling, struggled to rebuild her life as a student athlete in another locale and labored to comply with a court order that she lay bare her private social media life when she needed to study for exams and planned to visit with her parents.

Why? The answer, in her mother’s view, is simple — because she cooperated in an investigation of a revered University of Tennessee linebacker and his teammate accused of the rape of a female student-athlete.

“This is exactly why so few rapists are brought to justice,” mother Kristina Boland wrote in an email filed in Knox County Criminal Court. “The process is brutal on the victim and their supporters.”

Bridget Boland is one of four women, including the accuser, under court order to turn over online communications using social media tools in the high-profile rape case being brought against former Vols A.J. Johnson and Michael Williams.

The two men are charged with two counts of aggravated rape and two counts of aiding and abetting each other in an encounter inside Johnson’s South Knoxville apartment in November 2014.

Against what is already a high-profile backdrop, the case is plowing new legal territory in the criminal justice system. Johnson’s defense team of Stephen Ross Johnson and Tom Dillard has launched an aggressive push to uncover the virtual lives of not only the accuser but witnesses.

The criminal justice system has been slow to recognize the increasing role of social media as evidence. Prosecutors in recent years have begun to mine social media sites such as Twitter and Facebook for evidence against defendants.

Locally, such mining has netted proof of violent gang wars spurred by Twitter smack talk and, on the federal side, the first-ever successful prosecution of a gun case in which the sole item of evidence was a Facebook photo.

Laws necessary to glean such information from the accounts of defendants were already on the books. Prosecutors merely had to adjust the terminology.

But this case represents the first time in Knox County — and one of only a handful in the state — in which the defense has gone on the offensive to garner access to the social media accounts of witnesses. The current laws on the books still dictate the defense must show it has legitimate cause to believe the information sought contains evidence relevant to the allegations at issue. But the current state of the law offers no playbook for who should have sought to preserve the evidence in the first place, who should turn it over or even how.

When social media providers, including Facebook, Instagram and Yik Yak, balked at providing access to users’ accounts, it also became clear there is no nationwide legal rule on how a court in one state must enforce an order issued by a court in another state. Johnson’s defense team is waging separate fights in California, where the providers are located, and in Florida, where key witnesses now live, as a result.

Knox County prosecutors Leslie Nassios and Kyle Hixson, meanwhile, were laboring to comply with the rights of Johnson and Williams to speedy trials and ensure the lives of the accuser and witnesses would not be put on hold for months or even years as the battle over social media access heated up.

Nassios and Hixson accused the defense of failing to even meet the initial legal hurdle of proving just cause for social media access at all. But Criminal Court Judge Bob McGee ruled the defense hunt could continue.

In September, Hixson, though disagreeing with the ruling, offered to help speed things along.

The defense agreed to narrow down its social media requests to the accuser and the three female witnesses.

The state, in turn, agreed to help those four women comply with the resulting court orders. It sounded simple enough. Social media providers would provide the women instructions on how to retrieve their posts, chats, messages and the like.

The women, in turn, would turn that information over to the court, allowing trials to move forward even as the defense continued to do battle with the providers themselves. It wasn’t so simple, according to Bridget Boland’s mother.

Unnecessary roughness

On a recent weekend visit and during a time Boland was preparing for three upcoming exams, the Boland family spent hours trying to decipher the instructions and even drove 40 miles to an Apple store to buy a hard drive that turned out to be useless in their efforts, Kristina Boland wrote.

“I cannot comprehend why a social media expert was not utilized from the beginning of this demand,” she wrote. “This social media request was beyond everyone involved’s knowledge and ability.”

With a deadline looming for the four women to comply and all complaining of the impossibility of doing so without expert help, Hixson last week filed a motion to put on the brakes. He argued that not only was the defense on a wild-goose chase but the effort bordered on harassment and intimidation of the accuser and the witnesses.

“The defendants have not shown, nor can they show, that the subpoenas will produce evidence that is material to these proceedings,” Hixson wrote. “Further ... the subpoenas represent an unwarranted invasion of a rape victim’s privacy that violates her right under the Tennessee Constitution to be treated with dignity and respect.”

Hixson also is turning on its head the reason the defense cited as cause the women’s social media accounts would contain relevant evidence. The defense had pointed to a police interview of the accuser in which an investigator said he had already perused some of her social media activity and, based on what he saw, suggested she avoid posting anything else. The defense contended that whatever he saw was harmful to the state’s case.

Not so, Hixson said in his latest motion.

“Immediately following these offenses, (the accuser) was subjected to much harassment and vitriol via social media platforms,” he wrote. “This was perhaps due to the fact that these offenses occurred in the midst of a crucial part of the football season and involved two football players, one of whom was extremely popular on campus and amongst the Tennessee fan base.”

Power T

The rape allegations came at the height of Johnson’s football career when he was viewed as the key to success for UT’s struggling team and at the same time sexual violence among college students was at the forefront of state and national news. Vanderbilt University’s football program had already been rocked by a rape scandal in which sexual assault seemed so accepted on college campuses that many students watched as a woman passed out from heavy drinking was being attacked and did nothing. One of the athletes even filmed it.

Adding fuel to the fire was a lockdown on information about the case by authorities. Students and fans were left with nothing but rumors and questions.

Court records show Johnson and the accuser had been “talking,” youth culture code for flirting, in the months leading up to the night of the encounter at issue. Johnson and Williams have since insisted what went on inside Johnson’s bedroom that night was consensual, not rape.

Two camps quickly formed — those who believed Johnson, in particular, was the victim of a willing participant who later lied to protect her reputation and those who believed Johnson would walk away from a rape scot free because of the uniform on his back.

To make matters worse on campus, court records show, the accuser and the lion’s share of the state’s female witnesses were on a sports team together that had a close relationship with the football team. Loyalties frayed among the accuser’s own team and between players on that squad and the football team.

Tensions were so high a handful of players from both teams left UT. Boland was among them, according to her mother.

“As you know, Bridget left UT and missed her last semester due to the hostile environment she encountered,” her mother wrote.

Ultimately, though, court records and arguments by both sides so far make clear that at its core this is a classic he-said, she-said case, and every word uttered by the accuser, the defendants and the witnesses before, during and after the events inside Johnson’s apartment will be parsed for proof of the real truth.

In this case, that talk was being carried out almost exclusively via social media. Both sides in this battle over social media access agree on one thing — the decisions the judge will be called upon to make without benefit of clear legal guidance will force the criminal justice system to finally acknowledge it is time for a playbook for police, prosecutors, attorneys and judges in this Internet age.

A hearing on Hixson’s motion to quash the subpoenas and related defense motions alleging social media skulduggery by key players in the case is set for Tuesday. Williams’ trial has been delayed indefinitely pending the outcome of this fight. Johnson’s trial already has been pushed back to June.

As for Boland, her mother says she’s ready to tackle whatever this case throws at her.

“Bridget has nothing to hide and will be happy to provide the expert and/or the judge her password for all her social media,” her mother wrote.

Follow Jamie Satterfield on Twitter: @jamiescoop

Copyright 2015 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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