Last month Orange County Prosecutors charged Victoria Graswald with the murder of her fiancé Vincent Viafore. Ms. Graswald allegedly tampered with Mr. Viafore’s kayak while the two were boating in the icy (yes again icy – see post below) water of the Hudson River. As a result, prosecutors argue, Mr. Viafore drowned.
Although Mr. Viafore’s body has yet to be found, prosecutors believed that Ms. Graswald’s inconsistent stories, and pictures she posted on Facebook after the accident were sufficient to indict her for her fiancé’s death. They cite as evidence a picture of Ms. Graswald in a yoga pose against a bucolic setting and a video of her doing a cartwheel.
Facebook posts that demonstrate a lack of remorse have been figuring into criminal prosecutions for a while. in 2011 Casey Anthony was indicted in the media for posts she shared of a “Bella Vida” tattoo she emblazoned on her back shoulder and pictures she posted showing Ms. Anthony partying while her daughter was still missing. A California, judge sentenced a woman to 2 years in jail for her first DUI offense (typical first time offenders are given probation). The judge cited a post- arrest picture the woman posted to MySpace while holding a drink.
But are Facebook posts, with all of their innuendo, a fair measures of guilt. The Casey Anthony jury probably didn’t think so; although all we know for sure is that the posts, considered as part of the prosecution’s entire case, were not sufficient to lead to a guilty verdict. And arguably posts, without a body, will not provide the lack of reasonable doubt necessary to convict Ms. Graswald.
But should these pictures hold the weight that members of the criminal justice system increasingly ascribe to them? A problem seems to be context. While the pictures seem damning when posted during or soon after an investigation, the evidence is circumstantial at best. Absent testimony by the defendant corroborating his or her intent at the time of the post, (an event unlikely to happen) jurors can never be certain that the pictures demonstrate an expression of relief or a lack of remorse.
The issue of post-indictment remorse is transcends social media. Prosecutors recently introduced into evidence a picture of Dzhokhar Tsarnaev (the Boston Bomber) flashing his middle finger into a camera from a jail holding cell. But Tsarnaev’s attorney, like Ms. Graswald’s spun the picture in a way that suggests it has nothing to do with a lack of remorse.
And therein lies the problem, skilled attorney’s on either side can explain pictures, and intent while posting them, from several different angles. The issue becomes whether their value is sufficient to justify supporting an indictment for a crime? a conviction? or a sentence?