Fight over CyberCheck location tracking brews in Summit County court
- A Summit County judge excluded CyberCheck evidence from being used in a murder trial set to proceed this week.
- Prosecutors appealed the judge’s ruling.
- This highlights a bigger battle brewing over whether CyberCheck evidence should be permitted in Summit County’s most serious cases.
A Summit County judge this week prohibited prosecutors from using CyberCheck evidence, a new technology that tracks people based on their smartphone activity, in a murder case.
Prosecutors appealed Judge Mary Margaret Rowlands’ decision, saying the exclusion of this evidence made their case against Javion Rankin too weak to prosecute.
The appeal delayed Rankin’s trial — which had been set to start Thursday — and highlighted a brewing battle over whether CyberCheck evidence should be permitted in the county’s most serious cases.
“CyberCheck is junk science,” said Don Malarcik, one of the attorneys representing Rankin. “It’s a fraud. It’s all made up.”
Summit County prosecutors, though, defended CyberCheck, which has been used in two murder trials that resulted in convictions, with the defendants getting life sentences. (The defense attorneys in these earlier cases didn’t challenge the inclusion of CyberCheck evidence.)
“Nationwide, CyberCheck has become an investigative tool that gets results,” Assistant Summit County Prosecutor Brian LoPrinzi, who heads the prosecutor’s criminal division, said in an emailed statement. “Much like how DNA is used to connect a person to a crime, CyberCheck is a tool that helps investigators create a digital footprint of a suspect. We will continue to use all evidence to seek justice for victims of crime, and we understand that defense attorneys do not like it.”
Summit is the first county in Ohio to roll out CyberCheck in criminal trials, though it is being used — and challenged — across the country.
Adam Mosher, the CEO of Global Intelligence, the Canadian-based company that created CyberCheck, said challenges are pending in cases in nine courts in several states, including New York and Colorado. He said his company so far has refused to provide its software to defense attorneys who have requested it to allow an independent expert to verify CyberCheck’s results.
“That is proprietary for our company,” Mosher said in a recent online hearing in the Rankin case. “That’s how we make our money.”
Defense attorneys in Rankin’s case and three other Summit County murder cases have requested access to CyberCheck’s software, algorithms and other pertinent information. Additional challenges are expected in other Summit County cases in which CyberCheck evidence is being used.
CyberCheck’s debut in Summit County court
CyberCheck was first used in Summit County in two murder trials last November.
More on ‘CyberCheck’:What is ‘CyberCheck’ technology, and how did it help convict Na’Kia Crawford’s killer?
Salah Mahdi was convicted in a shooting at an Akron barbershop, while Adarus Black was found guilty in the shooting of Na’Kia Crawford, a recent North High School graduate.
In Black’s trial, Mosher testified that his company has a $25,000 contract with the Akron Police Department to assist with 50 cases and 20 hours of real time searches.
Mosher said CyberCheck was developed in 2017 and the technology can be used to look for someone’s location either in the past or in real time. He said CyberCheck uses a person’s “cyber profile,” which includes a person’s email, social media accounts and phone applications.
Mosher said CyberCheck triangulates locations based on applications on devices communicating with each other. He said the results are about 98.55% accurate.
Mosher said most people have smartphones with apps that constantly attempt to communicate or connect with other wireless devices. He said information about these connections is stored on websites and router communications and can be accessed. He said he has found that a cyber profile correlates to a person’s physical location 99.99% of the time.
Mosher said CyberCheck found that a cyber profile associated with Black was near where Crawford was shot at about 1:30 p.m. June 14, 2020.
Mosher recently agreed to an interview with a Beacon Journal reporter, then canceled it and didn’t respond to texts and phone messages requesting a new interview time.
Two murder cases with CyberCheck evidence result in convictions
Both the Mahdi and Black cases resulted in guilty verdicts.
Mahdi was sentenced to life in prison with possible parole after 28 years, while Black was sentenced to life in prison with potential parole after 18 years.
Mahdi and Black are appealing their convictions.
A Copley woman who served on the Mahdi jury said jurors thought the technology used to identify Mahdi was eye-opening, especially CyberCheck.
“A lot of jurors felt that was key in this conviction,” she said.
Jurors told attorneys in Black’s case that CyberCheck evidence, coupled with surveillance footage showing the path of the Camaro used in the shooting, were key to their decision.
In the Black and Mahdi trials, the defense attorneys asked questions during cross examination about CyberCheck but didn’t challenge whether this evidence should be admitted.
Attorneys challenge CyberCheck evidence in Rankin’s case
Malarcik, who is representing Rankin with attorney Alan Medvick, filed a challenge of CyberCheck’s evidence in the case on June 1.
Besides another case in which a challenge of CyberCheck evidence was filed, but then withdrawn because a plea deal was reached, this was the first challenge in a Summit County case.
Rankin, 21, is one of three men charged in the death of Tyraye Carter who was found shot to death in December 2020. Rankin’s charges included aggravated murder, murder and several other felonies.
A CyberCheck search found that Rankin’s cyber profile was at the scene of Carter’s shooting, plus or minus 5 meters, at the time of the shooting, plus or minus nine minutes, according to court records.
Malarcik asked Rowlands to compel the prosecutor and Mosher to provide the CyberCheck software that he developed, created and used in Rankin’s CyberCheck report and all data that he collected that formed the basis of his conclusions. He said he needed this information for an expert to test CyberCheck’s conclusions.
Malarcik said he would agree to a protection order that would permit him to only use the software related to this case and then return it.
Malarcik said prosecutors routinely provide attorneys with data and methodologies from their experts in cases involving DNA, ballistics, fingerprints, and blood and urine tests. He argued CyberCheck evidence should be treated the same.
If the state or Mosher refused to comply, Malarcik requested that Rowlands exclude Mosher’s report and any testimony related to CyberCheck from Rankin’s trial.
Defense attorney questions what CyberCheck searches
During a virtual hearing in Rankin’s case on June 6, Malarcik asked Mosher if he’d be willing to provide CyberCheck’s software and algorithms with a protective order that would only allow this to be used in the Rankin case and then returned.
“As of right now, no, because I haven’t seen an expert that would be able to replicate it that has been brought forth by the defense,” Mosher said.
Assistant Prosecutor Joe McAleese asked Mosher if another expert can do the same search as CyberCheck but would need their own way of collecting the information.
Mosher said that is correct.
Malarcik said if CyberCheck is illegally obtaining confidential information in violation of a person’s constitutional rights, that can’t be tested.
“We’re turning what we’ve correlated into the report,” Mosher said.
“You’ve not shown what you looked at,” Malarcik said. “The work — 15 days of analyzing records.”
Malarcik said without the CyberCheck software that will allow the defense to have an expert to verify CyberCheck’s results, Rankin’s “ability to properly defend himself at trial could be violated.”
McAleese said, “It’s the state’s position that the proprietary information of CyberCheck should remain with them.”
Judge orders that CyberCheck software be provided to defense
Rowlands ordered on June 9 that prosecutors provide defense attorneys with the CyberCheck software, algorithms and other information used in producing the report in Rankin’s case.
Rankin’s “right to obtain information to challenge the accuracy, competency, admissibility and reliability of CyberCheck’s processes outweighs CyberCheck’s financial motivation to keep its algorithms hidden and unchallenged,” the judge said.
Prosecutors, though, responded to Rowlands’ order by saying they don’t have CyberCheck’s algorithms and can’t provide them to defense attorneys. They said attorneys could hire their own expert and challenge the CyberCheck evidence in pretrial hearings and in cross examination at trial.
Prosecutors said an expert familiar with “open-source intelligence” could do the same work as CyberCheck without the company’s algorithm.
Malarcik responded to this by saying his expert hasn’t been able to reproduce CyberCheck’s conclusions.
“Without software, defense counsel is told to scour the internet until the same results occur,” he said.
Judge orders CyberCheck evidence excluded from Rankin trial
Rowlands ruled on Thursday, the day when Rankin’s trial was scheduled to start, that CyberCheck evidence couldn’t be presented.
Rankin “cannot prepare a defense when denied access to undisclosed proprietary software and framework that cannot be replicated,” she said in her order.
Rowlands said the only person who has ever validated CyberCheck’s results is a CyberCheck employee.
Prosecutors immediately filed a notice of appeal of Rowland’s decision.
“The ruling has rendered the state’s proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed,” Assistant Prosecutor Rick Raley Jr. said in the notice.
The appeal delayed the start of Rankin’s trial, and also triggered a rare criminal rule that requires a defendant to be released on a personal recognizance bond when a prosecutor appeals a judge’s order, except in a capital murder case.
Rowlands granted Rankin, who had been held at the Summit County Jail on a $100,000 bond, a personal recognizance bond Thursday. She required that he be placed on electronic monitoring and under house arrest and have no contact with his co-defendants or any witnesses in the case.
Stephanie Warsmith can be reached atswarsmith@thebeaconjournal.com, 330-996-3705 and on Twitter: @swarsmithabj.
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