According to court records obtained by the Associated Press, at least 49 defendants are accused of attempting to delete incriminating photos, videos, and texts from their phones or social media accounts documenting their behaviour during a pro-Donald Trump mob stormed Congress and briefly disrupted the certification of Democrat Joe Biden’s election victory.
Experts say the efforts to clean up the social media accounts suggest a desperate propensity to tamper with evidence once the people involved knew they were in trouble. They also claim that it can serve as powerful evidence of people’s guilt, making plea bargaining and seeking mercy at sentence more difficult.
Gabriel J. Chin, a criminal law professor at the University of California, Davis, stated, “It makes them look tricky, makes them look cunning.”
James Breheny, a member of the Oath Keepers extreme group, is one of the defendants, according to investigators, who boasted in messages to others about being inside the Capitol during the insurgency. According to court records, an acquaintance told Breheny to “delete all images, messages, and acquire a new phone” in an encrypted communication two days after the riot.
According to the FBI, Breheny shut down his Facebook account the same day, where he had images from the disturbance and complained that the government had become totalitarian. In a discussion on the unrest on Facebook on Jan. 6, Breheny commented, “The People’s Duty is to replace that Government with one they agree with.” “I’m ready to listen. “What are our options?”
Harley Breite, Breheney’s lawyer, claimed that his client never interfered the riot investigation or destroyed evidence, and that when he shut down his account, he had no idea that his content would be deemed evidence.
Breheny may have been able to see, in the days following the riot dominated news coverage, that the attack was a serious scenario that could jeopardise Breheny’s liberty, but Breite dismissed that possibility.
“If you don’t know you’re being charged with anything, you can’t destroy evidence,” Breite added.
According to court filings, additional defendants who were not charged with erasing evidence continued to have conversations with others about deleting files.
According to the FBI, one woman who posted video and comments claiming to have been inside the Capitol during the attack later elected not to restore her new phone with her iCloud content, which authorities believe was done to keep the evidence from being discovered.
Authorities say screenshots from a North Carolina man’s deleted Facebook posts contradicted his claim during an FBI interview that he didn’t plan to sabotage the Electoral College certification process.
It’s not as simple as erasing stuff from phones, deleting social media posts, or closing down accounts to delete digital content. Even after accounts have been closed, investigators have been able to obtain digital content by demanding it from social media corporations.
According to Adam Scott Wandt, a public policy professor at John Jay College of Criminal Justice who trains law enforcement on cyber-based investigations, posts made on Facebook, Instagram, and other social media platforms are recoverable for a certain period of time, and authorities routinely ask those companies to preserve the records until they get court orders to view the posts.
Authorities have various options for determining whether someone attempted to destroy evidence.
Authorities may still be able to access content that has been removed from an account if it has been backed up on a cloud server. People who haven’t been involved in a crime but have been sent damning tapes or images may end up submitting them to police. Metadata incorporated in digital content can also reveal whether it has been changed or removed.
“You can’t do it,” said Joel Hirschhorn, a Miami criminal defence attorney who isn’t involved in any of the Capitol riot cases. “The metadata will always get them in.”
Only a few of the almost 500 persons arrested in the riot in the United States have been charged with tampering for removing incriminating material from their phones or Facebook accounts.
Among them are many suspects in a broad case against members and allies of the Oath Keepers extremist group, who are suspected of conspiring to prevent the vote from being certified. Authorities claim one defendant told another to “make sure that any signal comms about the op have been destroyed and burned.”
Even if more charges are not filed, destroying evidence will make it impossible for offenders to receive significant benefits at sentencing for admitting responsibility for their crimes, according to Laurie Levenson, a professor at Loyola Law School.
Some lawyers may argue that their clients withdrew the content to diminish the social impact of the attack on their families and to demonstrate that they do not support the riot’s events. However, she stated that this argument has limitations.
The words’self-serving’ will come to mind, according to Levenson. “That’s what the prosecution would say — you took it away because you now have to face the repercussions of your actions.”
Matthew Mark Wood, who admitted to removing evidence from his phone and Facebook account showing his presence in the Capitol during the incident, told an FBI agent that he had no intention of interfering with the Electoral College certification process.
However, screenshots of two of his deleted Facebook posts, according to investigators, tell a different storey.
According to court papers, Wood delighted in rioting sending “those politicians fleeing” and declared that he had stood up to a totalitarian government in the face of a rigged election. “It shouldn’t surprise you if we revolt when diplomacy fails and your message goes unheard,” Wood wrote. His lawyer did not respond to a request for comment.
Despite the fact that she is not suspected of deleting evidence that revealed she was inside the Capitol during the disturbance, one defendant told her father three weeks after the violence that she would not restore her new phone from an iCloud backup, according to the FBI.
According to officials, the father advised his daughter, “Stay off the clouds!” “That’s how they’re messing with us.”