“People think that they’re having private conversations, but you put those things out there in your texts, it’s just a matter of a subpoena to use that,” said Jacque Hawk, a private defense attorney who has seen both the pros and cons of text-messaging in his cases.
The Neal trial is only the latest in a long string of proceedings where text messages were used as evidence. As far back as 2004, defense attorneys for NBA star Kobe Bryant were granted text messages from the woman who accused Bryant of rape. Earlier this year, a New Orleans jury convicted a woman of murder based in large part on the text messages that preceded a spray of gunfire from AK-47 assault rifles.
The Neal case focused on allegations he provided the accuser with alcohol and marijuana before forcing her into a “threesome” with him and his wife on Dec. 16. The defense said the accuser was the instigator and that the sex was consensual.
Trial started June 4 but ended abruptly Wednesday in a plea bargain that reduced a felony to two misdemeanors and gave Neal three years’ probation and community service. Only a short portion of the trial was given to testimony, but it included an account from the baby sitter about what happened. Prosecutors sought to portray the accuser as a scared teenager taken advantage of by a calculating defendant, but text messages sent the next day seemed to undermine their position.
The accuser said that she texted Neal the next day to determine whether sex had occurred. But the text messages quickly veered into a raunchy exchange that included Neal asking her to become his “sex slave” and the victim calling him a “sexy daddy.”
Jeff Kagan, a telecommunications expert, said it’s extremely difficult to erase a text message thread. Even if both parties delete messages from their phones, the service providers keep a record, although it’s not clear what they store and for how long.
“There are no rules,” said Kagan. “Nobody talks about it, and (the carriers) won’t tell you.”
Hawk said physically deleting messages and even content from your computer makes no difference to a forensic expert.