PROVIDENCE, R.I.(AP)
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."
Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.