by Mark Wilson

The Oregon Court of Appeals held that an alleged rape victim was required to turn over her computer for in camera inspection of her internet searches. That is, a criminal defendant's right to access "important and exculpatory" evidence trumps the victim's privacy rights.

In 2011, Bend, Oregon, anesthesiologist Thomas Harry Bray, met a woman, identified only as "J," online. After meeting for drinks, they returned to Bray's apartment. J left five hours later, with injuries to her jaw, eye, neck, shoulder, upper back, and vaginal area.

"Remember how I told you about that doctor?" J texted a friend. "I think he raped me last night." J conducted Google searches of Oregon law to determine whether the incident "counted as rape or not," since she willingly went to Bray's apartment.

J then called police, alleging that Bray "repeatedly spit in her face, slapped her, choked her into unconsciousness, pulled out some of her hair, and raped her vaginally and anally." Bray claimed that J sustained the injuries during consensual "rough sex."

Bray was charged with four sex crimes, strangulation, and assault. "Before trial, Bray sought access to Google records regarding J's search history — the queries that she had entered and the websites that she had visited — for purposes of impeaching her testimony about the internet activity and consequently, undermining J's credibility." Bray claimed that J searched the internet to determine whether he was actually a physician who was wealthy enough to falsely sue for rape.

J did, in fact, bring a lawsuit against Bray, seeking $2 million in damages. The suit was stayed pending resolution of the criminal case, but then ultimately dismissed.

Bray sent Google a subpoena duces tecum, seeking J's email and "all internet activity and searches" from February 22, 2011 to March 31, 2011. Google refused to comply with the subpoena, arguing that the Electronic Communications Privacy Act (ECPA), 18 USC §2702(a)(1), prohibited disclosure.

Bray then moved to compel the prosecution to obtain the Google data, pursuant to an ECPA exception allowing disclosure to a law enforcement agency when the information appears to pertain to the commission of a crime. 18 USC § 2702(b)(7)(A)(ii). The court determined that the information Bray sought was exculpatory and material. Yet, rather than ordering the state to obtain the data, the court directed the prosecutor to seek J's consent to the data's release under 18 USC § 2702(c)(2).

When J refused, Bray renewed his motion. Over the prosecution's objection, the court issued a December 20, 2011 order, compelling the state to obtain the data from Google and turn it over to Bray within 10 days.

When the judge retired a few days later, the prosecution responded with what it later admitted was protracted "resistance" to the court's order. It first sought reconsideration, but the new judge denied its motion.

The prosecution then informed the court that it could not obtain the information without J's internet protocol (IP) address, and that obtaining the address would be costly and inconvenient. Unbeknownst to the court and defense, the prosecution had already possessed J's IP address for more than eight months. The court again ordered the state to take any necessary measures to obtain and disclose the Google information.

Two weeks later, the prosecution tried a different tactic, informing the court that it had made no effort to comply with the court's order because it had learned that attempting to obtain the information would be futile. The State offered the testimony of an "expert" who claimed that Google did not retain information longer than 28 days. The "expert" was a Bend police officer whose information about Google policy came from a conversation with another police officer, who claimed to have heard it from a Google attorney, whose name he could not recall. Bray objected to the testimony as hearsay within hearsay, but the court overruled the objection.

During a short recess, the defense accessed Google's website and discovered that, Google's policy was actually to retain the data for at least nine months. The court then ordered the prosecution to comply with the order by April 27, 2012, under threat of contempt of court for willful violation of the court's orders.

The court also ordered the state to send Google a subpoena duces tecum and a letter requesting preservation of data. Incorrectly believing that the prosecution did not yet know J's IP address, the court directed the state to determine her address. When the state refused, the court ordered the defense to obtain the information and ordered the prosecution to cooperate.

Five weeks later, the defense informed the court that it had discovered J's IP address, and that the prosecution had possessed it for nearly a year. The defense also noted that the prosecution still had not sent Google the ordered subpoena or preservation letter. The court again ordered the state to do so immediately.

Fearing that Google may no longer possess the information, the defense requested that the court compel the state to secure J's computer and give it to the court for in camera inspection. The defense argued that the request was urgent because it had learned during J's civil case that she had given away the computer, destroyed it, or attempted to delete all relevant information. The court denied the motion.

J then moved to prohibit Bray from accessing her computer or seeking data from Google, under the Crime Victims' Bill of Rights (CVBR), which amended the Oregon Constitution to allow victims to resist discovery requests. The court denied the motion and J filed an interlocutory appeal which was dismissed as untimely. State v. Bray, 352 Or 34, 279 P3d 216 (2012)(en banc)(PLN, June 2013, p. 40).

One day after J's appeal was dismissed, the state informed the court that it had finally sent Google the subpoena and preservation letter but that Google indicated that the subpoena was insufficient and a search warrant was necessary. The state took no action on that information for five weeks, believing that a search warrant could be issued only for evidence of a crime, not exculpatory evidence. The court directed the prosecution to apply for a search warrant, and said it would be issued.

Bray then moved to dismiss the case based on prosecutorial misconduct. The retired judge who issued the original order returned as a senior judge. Despite finding "some foot-dragging and delay and resistance or reluctance . . . to comply with the . . . order," the court denied the motion. It then reconsidered its December 20, 2011 order, concluding that the court was powerless to obtain J's information from Google. Finally, the court denied Bray's motion to compel in camera inspection of J's laptop.

Bray was then convicted of all charges and sentenced to 300 months in prison and a $112,103.34 fine. "Justice is done," said District Attorney Patrick Flaherty.

"Justice" was undone, then, when the Court of Appeals reversed. "The procedural delays . . . support, at the least, what the state conceded at trial was 'resistance' to the court order and what the state now concedes on appeal was 'steadfast refusal,'" the court observed. "These terms are too mild," the court found.

"The state's conduct" was "seriously disturbing," the court declared. "Its 'lack of good faith' with respect to obtaining the Google information was significantly worse than foot dragging, delay, and resistance. It was repeated, intentional, and conceded defiance of a court order. Such defiance is nothing short of an attack on the judicial system itself."

Nevertheless, the court affirmed the denial of Bray's motion to dismiss. "There is a significant difference between prosecutorial misconduct — even sanctionable prosecutorial misconduct — and misconduct that justifies dismissing a case," the court concluded. Agreeing that the lower court had no authority to issue the order that the state defied, the court held that "this defiance did not deny defendant a fair trial. . . . although the state's misconduct was egregious, it had, in the final analysis, no impact on the ultimate fairness of defendant's trial."

The court then ruled that the order compelling the state to obtain and disclose information in possession of Google exceeded the court's statutory and constitutional authority.

The court held, however, that J's privacy rights did not justify denial of in camera inspection of her computer. "The trial court did not follow the standards and criteria for ruling on motions for in camera review of subpoenaed material that may contain privileged or otherwise confidential information intermixed with information that may be admissible," the Court held. Noting that the applicable procedures and criteria were clarified in State v. Lammi, 281 Or App 91 (2016), which was decided after Bray's case was tried, briefed, and argued, the court remanded "because the law regarding the use of that approach in this context was not evident at the time of trial, the court did not use it." See: State v. Bray, 281 Or App 584 (Or Ct. App. 2016).

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