Police Blotter: Google searches lead to murder conviction

A Florida man appeals his first-degree murder conviction, saying his search terms and other online activities didn't provide enough evidence to put him in prison for life.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
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Police Blotter is a regular CNET News report on the intersection of technology and the law.

What: Florida man appeals a first-degree murder conviction based on circumstantial evidence, including Google searches related to gunshot wounds.

When: State appeals court rules on January 23, 2009.

Outcome: Appeal denied and conviction upheld.

What happened, according to court documents and other sources:
On the evening of August 17, 2002, Justin Barber was shot four times while walking on a deserted beach in Florida. Bullets hit his left hand, his left shoulder, the base of his neck, and his chest. His wife April was shot in the face and died in the surf.

From his hospital bed, Justin offered detectives a description of the man he says robbed and shot them. Witnesses told police they saw a second car parked on the beach around the same time as the shooting. And April's car and house (the couple was temporarily living three hours apart for job reasons) had been recently broken into.

Still, April's family believed Justin was the man who murdered her--then shot himself to cover up the crime--and tried to focus detectives' attention on him.

An article posted on our sister site, CBS News, offers some explanations for their suspicions. A $2 million life insurance policy had been taken out on both Justin and April. Justin was more than $50,000 in debt. He was having affairs, including one with a woman who worked at a car rental agency.

April's aunt Patty, a judge in Oklahoma, was convinced that Justin was the culprit. "He planned every moment of it," she told CBS News. "This was premeditated, cold, calculated." Detectives eventually agreed, and Justin was charged with first-degree murder.

What makes this case relevant to Police Blotter is that prosecutors introduced something of a bombshell during the trial: Records of Justin's Google searches.

A physical search of Justin's computer revealed that a few months before the murder, he had searched for terms including "trauma, cases, gunshot, right chest" and "Florida & divorce." Prosecutors had also discovered that the defendant downloaded a suggestive Guns N' Roses song called "Used to Love Her" and then deleted it a few weeks later, after his wife's death.

The lyrics: "I used to love her, but I had to kill her / I had to put her / Six feet under / And I can still hear her complain."

The jury convicted Justin and he was sentenced to life in prison. He appealed on grounds that the evidence was wholly circumstantial and insufficient for conviction. A Florida state appeals court upheld his conviction and sentence.

As computer forensics becomes more commonplace, evidence of Google and other searches is beginning to appear in more criminal prosecutions. Earlier this month, Police Blotter noted how they were invoked in the case of a San Francisco-area investment banker who claimed he believed he killed a deer instead of a person.

Police Blotter has chronicled a 2006 case involving a wireless hacker ("how to broadcast interference over Wi-Fi 2.4 GHz") and a 2008 case involving a woman convicted of murdering her husband ("decomposition of a body in water"). Searches in a 2005 murder case included "neck," "snap," and "break."

So far these cases appear to have involved police physically seizing a suspect's computer and poring over its Web browser history. The other way for prosecutors or defense attorneys to find search terms is to send subpoenas to Google, Microsoft, Yahoo, or AOL (something that the major search companies say they can provide if legally obligated). If you know of any cases involving subpoenas, please let us know.

Excerpts from the opinion of the District Court of Appeal of Florida, Fifth District:
In the penalty phase of the trial, the State presented argument in support of the three statutory aggravators; Barber refused to offer mitigating evidence or submit argument. The jury, by a vote of eight to four, recommended that the death penalty be imposed.

The trial court considered the evidence and the State's arguments and found: (1) the murder was at least partially motivated by pecuniary gain (medium weight); and (2) the murder was committed in a cold, calculated, and premeditated manner (great weight). However, as to whether the crime was heinous, atrocious, and cruel (H.A.C.), the court found that the State did not prove this aggravator beyond a reasonable doubt because the State did not sufficiently prove that Barber attempted to drown his wife before he shot her. Specifically, the trial court found that Barber may have shot her at the water's edge, causing her to fall into the water, and then dragged her to where her body was found by the police. Despite the jury's recommendation, the trial court imposed a life sentence. Barber appeals, claiming that the trial court erred in denying his motion for judgment of acquittal...

As to our de novo review of the record before us, we conclude that when viewed in the light most favorable to the State, the evidence the State introduced at trial is inconsistent with Barber's theory of events. Because such an inconsistency was established, the trial court correctly let the jury decide whether the evidence excluded all reasonable hypotheses of innocence. The jury heard all of the testimony and considered all of the evidence presented in the guilt phase of the trial and determined that all reasonable hypotheses of innocence were excluded. Concluding that substantial, competent evidence exists in the record to support the jury's verdict, we affirm Barber's conviction and his sentence.