The Lawyer’s Duties – The Facebook Killer Meets Ethics, Criminal and Civil Discovery Rules

COLT Legal Ethics In Social Media

Michael Ehline discusses negligence and discovery guidelines

By Michael P. Ehline, Esq, of Ehline Law Firm PC – I was watching the news the other day and saw that a man had murdered his wife and posted photographs of the dead woman and the scene, on social media. What a sicko, I was thinking.  But then I realized that hey, what if I was the defendant’s attorney? I mean, just the other day, a lawyer was disbarred for encouraging a client to clean up their Facebook account. (View the Order Awarding Sanction Here.) And now, a Florida man allegedly killed his wife and then posted the photograph of his wife’s body on the popular social media website Facebook. Who knows, the defense attorney in this case may try and get a family member or a friend do the same thing.  You never know. It seems like all things electronic, are the wild wild west.

The Facts of the Facebook Murderer Case Thus Far

Photo of the Facebook murder page

All about the Facebook killer case.

In any event, according to police, Derek Medina age 31 of Miami was charged with first degree murder Thursday, after he posted a photograph of his wife’s dead body and a statement that he had shot her. Medina told police that he fired multiple rounds into his wife Jenifer Alfonso age 26, after she began punching him. According to Medina’s arrest affidavit that has been released, the man fired five rounds into his wife’s body.

Medina has not entered a plea and legal representation has not been named. Police said the couple had a verbal disputed at approximately 10:00 a.m. and Medina said that he pointed a weapon at Alfonso. He said Alfonso walked away at that point, to return a few minutes later telling him she was leaving him.

The Miami man said he followed his wife into the kitchen, in order to confront her, when she began punching him. Medina said he went upstairs and got his firearm again, holding it in his right hand as he walked toward Alfonso. He said Alfonso then grabbed a knife, which she put in a drawer and started to punch him. He said this is what led to him shooting his wife multiple times.

Medina then posted the photo of a woman dressed in a black blouse and slacks, who was lying backward on the floor in the kitchen with blood on her face and left arm. The photograph was posted on Medina’s Facebook page after the shooting, along with a confession and a message to friends.

The message Medina posted said: “I’m going to prison or death sentence for killing my wife, love you guys, miss you guys take care Facebook people you will see me in the news my wife was punching me and I am not going to stand anymore with the abuse so I did what I did I hope u understand me.”

Friends on Medina’s Facebook page messaged back shocked and asking what happened. Approximately five hours after the incident Medina’s Facebook profile was removed, according to reports. Authorities have not discussed Medina’s Facebook postings publically.

During the incident Alfonso’s 10 year old daughter from a previous relationship was in the home, but unharmed. As soon as police were made aware of the incident they took the girl out of the home where her mother’s body was. The affidavit said that prior to Medina turning himself in at a South Miami police station, he changed his clothes and then went to his family’s home to confess to the shooting death of his wife. He then turned himself in at a South Miami police station where he told an officer working at the front desk he shot his wife.

After police checked out Medina’s story and found his wife dead, he was then arrested, the affidavit said. According to the affidavit he listed his employment as a property manager, but on his Facebook profile he stated he was an actor on Burn Notice, on the USA Networks. He said that he appeared on one episode of the program as an extra.

Medina had an open and full online presence writing ebooks, posting videos on YouTube, him kicking a punching bag, singing a song “There Ain’t No Sunshine,” and sailing. On his website and YouTube channel he had posted his ebooks that have exceptionally long titles, like How I Saved Someone’s Life and Marriage And Family Problems Thru Communication. The summary for the title said “this book is a great book to learn how to make your marriage and relationship with others better by understanding the meaning of life and the purpose of living and being there for loved ones.”

The Client From Hell

Obviously, if these facts are true, when the defendant shot his wife, he committed murder, because he killed an innocent human without justification. Here, the client is also posting stuff on Facebook, that is over the top.  Basically, he seems to want to convict himself.  Of course, this also raises the issue of a wrongful death, because in a civil case, when a negligence, or reckless, or even intentional killing is involved, in most states, the survivors, if any, have a civil claim (Read more.).  Luckily for ethics purposes, we need only look at the professional conduct rules to see the ethical duty the criminal defense attorney, as well as the civil defense attorney would need to follow to avoid violating any rules.

The Ethics Rules

Lawyers are officers of the court, and are held to a higher standard ethically, than most other professions and business. Lawyers are in a superior position of knowledge and their clients must be able to 100 trust them.  This is for many reasons.  One reason is that in order to have an efficient administration of justice, the public must have faith in the legal system. So lawyers have a duty of candor and professionalism that is very high. Since I am a California attorney, I will approach this as if my client was in California. The Rules of Professional Conduct of the State Bar of California require that rules be promulgated regarding standards for members in order to regulate and punish if necessary. (See Ames v. State Bar (1973) 8 Cal.3d 910.) However, just because a lawyer may have acted in an a manner inconsistent with their ethical duties, does not per se make them liable in a civil lawsuit. (See Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654.)

Regardless, the ethics rules cannot change or intervene to change existing laws already on the books having to due with disciplining attorneys. (See, e.g., Klemm v. Superior Court (1977) 75 Cal.App.3d 893.) So in the case at bar, if I was either defense attorney, I would understand that although Federal Rule 11 would not apply in a Civil case, both the civil and criminal codes in California would require that I not destroy evidence, and that I produce any and all relevant evidence about the Facebook murder I reasonable possess, once it is requested in discovery, or risk sanctions. Sanctions could include issue sanctions, terminating, or some other kind of doomsday sanction, that is evidentiary in nature. (Learn more.)

The discovery rules in criminal and civil cases are pretty clear. Criminal discovery is a judicially created doctrine. Civil Discovery is a legislative creation that is interpreted by judge made law. (See e.g., the Civil Discovery Act.) But in California, we even have our own electronic discovery act. Suffice it to say, that both sets of discovery rules must work in tandem with relevant ethics rules.

Attorneys Are Not Allowed to Destroy Evidence

So no matter what, the attorney may not destroy, or cause to be destroyed, any evidence that is reasonably likely to lead to the discovery of other relevant evidence that may, or may not be admissible at trial. The bottom line here is that the only way to get this evidence excluded is with a motion in limine, for example, to try and say that any probative value the murder photos have, or other confessions may have, is far outweighed by its prejudicial effect.  Here, the defendant may argue insanity, mitigating circumstances, etc. We just do not know.  So the proper thing here, is for the court to make the ultimate decision. If the court makes a wrong decision, it can go up on a writ, or an appeal and a panel of justices can either reverse the case, uphold the case, or grant in part, and reverse in part, for example. This is what the justice system is all about.  We hope you have learned a little bit about your rights when dealing with social media, legal ethics and discovery. Feel free to add to this, or comment.

 

Sources:

ABC News Story

 

ABAJournal.com: “Defense Seeks Reversal of $10.6M Death Award, Says Lawyer Didn’t Disclose ‘Stink Bomb’ Email”

ABAJournal.com: “Va. Judge OK’d $722K Legal Fees Clawback Due to Withheld Facebook Photos and Information”

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