Chapter Seven
With a lot of fast talking the Deputy D.A. got an order shortening time and a week later the Deputy, Big Jim, Chris and Johnny-Boy’s lawyer were all standing in Judge Mandell’s courtroom.
“Your Honor,” Deputy D.A. Kelly began, “the Court has already authorized the seizure of the computer and its files but that has proven ineffective without the decryption code. We are only asking the respondent to give us the information necessary to enforce Your Honor’s own warrant.”
“Mr. Delaplane?”
“Your Honor, the Constitution guarantees not only a citizen’s right to be free from governmental intrusion but it also guarantees his freedom of speech which includes his freedom not to speak. And beyond that there is the Fifth Amendment’s guarantee that a defendant shall not be required to be a witness against himself. Taken together the First, Fourth and Fifth Amendments give my client the right not to be forced to speak, to reveal his personal and confidential information.”
“Your Honor, it is well established that the Fifth Amendment does not—”
“I’m not so sure about that, Mr. Kelly.”
“Your Honor, in the People’s P&As we outline the relevant—”
“I’ve read your Points and Authorities, Mr. Kelly but I still have a problem ordering a potential defendant to give the government information that it might use to prosecute him.”
“It’s information necessary to obtain evidence, not an admission of guilt.”
“It’s information that will allow the government to obtain evidence against Mr. Watkins that can then be used to prosecute him.”
“Your Honor, this issue was addressed in People versus—”
“No, Mr. Kelly, I don’t think it was, at least not to my satisfaction. Essentially, you’re asking me to order Mr. Watkins to give up information that can be used by the State to obtain evidence against him. And what if he refuses to give the police the password? Then you’ll be back in my court asking me to put him in jail until he gives you the information that, once received, can be used to obtain evidence to prosecute him. It seems to me that that is contrary to the Fifth Amendment.”
“The People respectfully disagree, Your Honor, based on the cases cited in our P&As. Additionally, I would point out that the information requested is sought solely for the purpose of investigating a murder, not prosecuting Mr. Watkins.”
“Mr. Delaplane?”
“Will the people grant Mr. Watkins immunity from prosecution for any crimes that may be revealed as the result of giving them access to this computer?”
Kelly frowned and shot Big Jim a quick glance.
“If we made that agreement and if the computer contained evidence that Mr. Watkins was involved in, for example, prostitution, then we would never be able to prosecute him for prostitution because it was a crime referenced on the computer. We would be willing to agree not to use any of the material contained on the computer against him.”
“But what about any subsequent evidence discovered as a result of something on the computer? The fruit of the tree?” Delaplane asked.
“Yes, Mr. Kelly, what about evidence beyond the computer files, something discovered elsewhere as a result of the review of something on the machine?”
“I don’t see how we could do that, Your Honor. Suppose the computer contained an email in which Mr. Watkins ordered a third party to kill someone and we used that email to track down the murderer and expose the crime? If we did as Mr. Delaplane asks, then the defendant could never be prosecuted for that murder even if the prosecution was only based on the testimony of the hired killer. The People cannot agree to such a far reaching grant of immunity.”
“It appears, then Mr. Kelly, that we are at an impasse. Your motion for an order requiring Mr. Watkins to disclose his computer’s decryption key is denied.” Mandell reached for his gavel.
“Wait, please, Your Honor. There is one more issue to be disposed of.”
“What’s that, Mr. Delaplane?”
“Your Honor, the computer in question is the basis of Mr. Watkins’ livelihood. It contains all his business and financial records. The police are only interested in the files. They can and probably already have copied them to other devices. We would ask that the computer itself be returned to Mr. Watkins undamaged and with all its data intact.”
“Your Honor, Mr. Watkins is a known pimp and he uses that computer to conduct his illegal business. To ask the police to return it to him—”
“Mr. Kelly, do the police have sufficient evidence to arrest Mr. Watkins for being a pimp?”
“I don’t know, Your Honor.”
“Since he hasn’t been arrested even though they want something from him, I will assume that they do not. Without evidence that the computer is being used in the commission of a crime, I hereby order that it be returned to Mr. Watkins undamaged and with its data intact, forthwith. Detective Donegan, did you hear my order?”
“Yes, Your Honor.”
“Then please make sure Mr. Watkins gets his computer back, in one piece, today. Court’s adjourned.” Mandell’s gavel made a ringing BANG.
