On the evening of November 10, 2012, Stanford Dewayne Jones was at Lanzy’s, a private club on the north side of Lufkin, enjoying a drink or two with an ex-girlfriend. He suddenly started acting erratically, making threats against other patrons for no apparent reason. He left the club but returned a short time later waving a handgun around. The Lufkin police responded to a “man with a gun” 911 call, but Jones had left the premises. A .22 caliber pistol was found outside the club and taken into evidence.
A few hours later, some of Jones’ friends and family found him walking down the street in his underwear, still acting incoherently. They took him to the emergency room and he was admitted to the hospital. He claimed that someone at Lanzy’s club had “spiked” his drink. He was treated and released shortly before noon on November 12, 2012.
Six suspicious fires
The first fire occurred at 4:45 the next morning. Samuel “Pops” Gilmore was making his morning coffee when he heard noises outside his small wooden house. He went outside and discovered that someone had placed sticks and other combustible materials against the side of his house in two different places and lit them on fire. Luckily he was able to extinguish the flames before any significant damage had occurred. Police and firefighters responded to the scene and discovered that the gas caps from two cars parked next to the house had been removed; a black cloth had been stuffed into one of the gas tank openings. The cloth was taken into evidence.
The second fire occurred 35 minutes later, three blocks from Mr. Gilmore’s house. It had been ignited near a window on a vacant house and had advanced into the attic and roof before firefighters could extinguish it. A flaming can of lighter fluid was discovered immediately under the window.
About an hour later, a third fire was ignited in the bed of a pickup truck parked next to a house just two blocks away. This fire was extinguished, and no evidence was located at the scene.
The following day, just before 4:00 a.m., the fourth—and most devastating—fire was ignited. It began in a two-story house and quickly spread to two other nearby houses. All three structures were (fortunately) vacant, and all three burned to the ground.
Around 6:30 the next morning someone attempted to light Lanzy’s club on fire at three different locations around the building. One of these attempts succeeded, and the wooden back door to the club was engulfed in flames. The fire awakened Laura Owens, who lived in an apartment above the club. Her screams brought her brother Lanzy to her assistance, and he was able to put out the flames. That fire was located at the bottom of an exterior metal stairway that was the only exit from Laura’s apartment.
Approximately 30 minutes later the sixth and final fire was started in an abandoned house five blocks from Lanzy’s club. Some cardboard and other debris had been placed against two plywood boards in a laundry room and set afire. An alert police officer noticed the smoke and was able to drag the plywood onto the driveway and the fire was extinguished.
Later that morning, in a combination of good fortune and diligent police work, an important piece of evidence was discovered. A Lufkin police detective decided to walk along the railroad tracks that stretched between the two fires that had occurred that morning. A typical November morning frost covered everything in sight, but the detective noticed something unusual: some fresh sputum (spit and mucus). Realizing that the sputum could not have been present for any appreciable length of time and that it was located between the sites of the two fires earlier that morning, he obtained a swab of the sputum, which was placed into evidence.
Thirty minutes after the last of the six fires, Stanford Jones was arrested for a felony probation violation. As he was booked into the Angelina County Jail, it was discovered that he had three disposable lighters in his possession. Moreover, the fires ceased once Jones was taken into custody, and there was not another intentionally set fire in that neighborhood for over a year thereafter.
The Angelina County Fire Marshal’s Office spearheaded the investigation. Fire Marshal Steve McCool and Assistant Fire Marshal Ozzie Jarman spent many an hour in the neighborhood, questioning dozens of potential witnesses and running down the innumerable leads they were given. More than one person advised them to look at Stanford Jones—and to pay special attention to his Facebook page.
Logging onto an alias Facebook page, McCool accessed Jones’ page and discovered that he had made several threats while hospitalized after the incident at Lanzy’s club. One threat, made in a comment to a photograph showing the defendant wearing a hospital gown in his hospital room, stated, “im ready to put a match to lufkin tx and watch thi s mutha***** burn down su wuu biz [sic]”. McCool later determined that the phrase “su wuu biz” is commonly used by the Bloods street gang members as a call to one another announcing their presence.
Another post read: “Enjoy a peaceful night get plenty of sleep because after tonight some of you will see heaven the rest of you go burn ya go burn slow.” A third posting said, “Im alive and all you mutha****** who want me dead you go die before me one by one lord forgive me for my sins.” Fire Marshal McCool subpoenaed Facebook and obtained digital records of Jones’ Facebook page.
Assistant Fire Marshal Jarman obtained and served a search warrant on Jones for a buccal swab. That swab, the black cloth retrieved from the gas tank, and the sputum swab from the railroad tracks were all submitted to the DPS laboratory for DNA analysis. The forensic chemist’s report stated that the sputum sample came from the defendant, and the odds of it coming from some other person were one in 414.8 quadrillion. The results from the black cloth were not quite as definitive. The chemist concluded that more than one person had contributed DNA to the cloth but also stated that the odds of the Defendant’s DNA not being present on the cloth were one in 452.5 million.
McCool was able to locate three key witnesses during his exhaustive investigation. Two witnesses placed Jones at the scene of the first fire shortly before it was ignited. A third witness stated that he had been driving through the neighborhood with Jones the day before the first fire and that Jones had pointed to various houses, threatening to burn them down. However, all three witnesses shared a common problem: They all had extensive criminal histories and were convicted felons.
Tienda v. State
It was immediately apparent that the admissibility of the Facebook evidence was going to either make or break the case, but the subpoenaed records had arrived without a business records affidavit. I thought about contacting Facebook to get an affidavit executed, but after considering the matter carefully I concluded the better course of action was to have Fire Marshal McCool proffer the Facebook pages he had printed directly from the Internet. This strategy addressed two issues I had with the records subpoenaed from Facebook.
To begin with, it avoided any Confrontation Clause issues under Crawford v. Washington.1 As we all know, this area of law has been in flux over the past several years. And although the Supreme Court in Crawford opined that “most of the hearsay exceptions [cover] statements that by their nature [are] not testimonial—for example, business records …,”2 I wasn’t willing to risk losing this valuable evidence either at trial or on appeal based on a judicial determination that my business records were “testimonial.”
More pragmatically, after reviewing the subpoenaed records from Facebook headquarters, my first impression was that the printouts bore absolutely no resemblance to the Facebook pages with which we are all familiar. The records were in black and white, in a plain font, with no Facebook logos, no avatars, and no Timeline—none of the features normally associated with Facebook pages. I needed something to put on the digital overhead that would be instantly recognizable to the jury.
I was confident the Facebook threats would not pose any hearsay issues—the fight would be over their authenticity. So I devoted a sizeable portion of my trial preparation to the Court of Criminal Appeals’ opinion in Tienda v. State.3 In Tienda, the State offered printouts of the defendant’s MySpace page through a witness who personally printed the evidence directly from the Internet.
The Court of Criminal Appeals began by delineating the role of the trial judge and jury in determining the authenticity of evidence:
The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder—the jury, in a jury trial. In performing its Rule 104 gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is authentic. The preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.4
The Court then acknowledged that due to the wide variety of such digital evidence, no single rule could be articulated that would adequately address all situations.
Like our own courts of appeals here in Texas, jurisdictions across the country have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs. Printouts of emails, Internet chat room dialogues, and cellular phone text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.5
Applying these principles to the facts of the case before it, the Court held that “the internal content of the MySpace postings—photographs, comments, and music—was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that they were created and maintained by the appellant.6
This combination of facts—(1) the numerous photographs of the appellant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring; (2) the reference to David Valadez’s death and the music from his funeral; (3) the references to the appellant’s “Tango Blast” gang; and (4) the messages referring to (a) a shooting at “Rumors” with “Nu–Nu,” (b) Hector as a “snitch,” and (c) the user having been on a monitor for a year (coupled with the photograph of the appellant lounging in a chair displaying an ankle monitor) sent from the MySpace pages of “ron Mr. T” or “MR. SMILEY FACE” whose email address is “[email protected]”—is sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant. This is ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.7
The Court acknowledged the remote possibility that someone could have hacked into Tienda’s MySpace page and manufactured the incriminating facts upon which the State relied, but the Court emphasized that this unlikely scenario was for the jury to consider, not for the trial court to rely upon for purposes of excluding the evidence.8
Unlike the Tienda case, the defendant’s Facebook page was under his actual name, Stanford Jones. (The MySpace pages in the Tienda case were under aliases, making their authentication more problematic.) Using Tienda as a guide, I sifted through my evidence and marshaled all the facts linking my defendant to his Facebook page.
Like the MySpace page in Tienda, Jones’ Facebook page contained numerous photographs and “selfies” of the defendant, including several in the hours immediately preceding the setting of the first fire. I printed out all of these photographs, marked them as separate exhibits, and made a note to have my witnesses identify them as images of Jones.
I also realized that I had evidence similar to the ankle monitor evidence in the Tienda case, i.e., evidence of a personal circumstance peculiar to the defendant. One of the photographs on the defendant’s Facebook page showed Jones in a hospital room wearing a hospital gown. This image was posted approximately a day and a half before the first fire was set. McCool, the fire marshal, had already obtained Jones’ hospital records, so I knew I could establish that he was in the hospital at the time that particular photo was posted.
McCool had also subpoenaed Yahoo for the email address listed on Jones’ Facebook page. The records showed that the email address had been obtained by Stanford Jones of Lufkin, Texas, and, significantly, contained Jones’ street moniker, jboyheartofthanorth. This street name also appeared in several of Jones’ Facebook posts, and I planned to have my witnesses testify that Jones commonly used it.
I also planned to have my witnesses verify that many of the defendant’s relatives, friends, and acquaintances were listed as “friends” on his Facebook page. Several of these persons had commented on his Facebook posts, including the three threats made shortly before the first fire. I would also have these witnesses verify various personal facts that Jones had listed on his Facebook page, such as his place of birth, where he went to high school, and where he was previously employed. Finally, during trial I planned to have Jones’ Facebook friends identify the printouts as Jones’ Facebook profile.
I drafted a detailed trial brief that discussed the Tienda case and outlined the authenticating evidence I planned to introduce at trial. I filed it far in advance of trial so that the presiding judge would be well-prepared to address these issues.
Prior to trial, Jones’ community supervision on his second-degree felony drug delivery charge had been revoked and he was adjudicated and sentenced to seven years in prison. He rejected a plea offer of 15 years on the arson case.
The indictment alleged two counts of arson of a habitation, three counts of arson of a building, and one count of arson of a vehicle. The habitation counts were first-degree felonies and the remaining counts were second-degree felonies. Jones had no prior felony convictions that could be used for enhancement purposes.
Each of the arson counts averred that the defendant knowingly ignited the fires “within the limits of an incorporated city or town, namely, Lufkin.” I contacted the Lufkin City Attorney’s Office and obtained a certified copy of the Lufkin City Charter, which stated in its very first section that Lufkin was an incorporated city. My law enforcement witnesses would testify that the fires occurred inside the city limits.
With six separate offenses to prove, DNA evidence to admit, and the Facebook predicate to establish, I planned on calling more than 20 witnesses and introducing 100-plus exhibits. I organized the trial as follows: the first portion would involve proving up each of the six fires; I would then offer evidence concerning the incident at Lanzy’s club and the defendant’s subsequent admittance to the hospital; next I would call the forensic chemist and proffer the DNA evidence; and finally I would lay the Facebook predicate and offer the printouts into evidence. If all went according to plan, the Facebook threats would be the last thing the jury would see before the State rested.
In preparing for voir dire, I wanted to stress three points in particular. First, because two of my counts involved fires that did very little damage, I wanted the jurors to understand that the arson statute provides that the crime is considered complete “regardless of whether the fire continues after ignition.”9 Second, I wanted to emphasize the distinction between actual damage and destruction versus the intent to damage and destroy. And third, I wanted to stress that any element, indeed the entire case, could be proven by circumstantial evidence. With respect to the type of juror I preferred, I recognized that certain persons were especially vulnerable to fires, i.e., the very old and the very young, so the elderly and parents of young children were high on my list of prospective jurors.
The defense raised several issues in its motion in limine prior to commencement of trial, all of which were uncontested and granted by the trial judge. I was allowed to offer evidence of the incident at Lanzy’s club, but would not be permitted to mention that a firearm was involved; I would be permitted to prove that Jones had been taken into custody shortly after the last fire, but could not mention the reason for his arrest; and I would be able to refer to the defendant’s Facebook page, but could not mention the substance of any threats until the time the judge had ruled upon its admissibility.
Trial commenced on March 23, 2015, before the Honorable Robert Inselmann, Jr., of the 217th District Court—and, from my point of view, it could not have gotten off to a worse start. Of my three eyewitnesses, two did not appear, and the third now insisted that he had never identified Jones as the person he observed at the scene of the first fire. I was forced to impeach this last witness with his prior inconsistent statement to Fire Marshal McCool—which was accompanied by an instruction to the jury that the evidence could be used only for impeachment purposes and not as substantive evidence of guilt. Basically all the jurors initially learned was that six fires had been set, but they heard nothing about who may have started them.
The next phase of the trial went considerably better. The admission of the DNA evidence on the black cloth linked Jones directly to the scene of the first fire, and the DNA from the sputum placed him in the vicinity of two other fires close to the time of their ignition. I also played a portion of a police patrol unit video that showed the fourth fire in progress. This was by far the most damaging fire, and the dramatic footage of the 30-foot flames against the night sky undoubtedly created quite an impression with the jury.
The concluding part of the trial started with a surprise: One of my wayward eyewitnesses showed up. I had already prepared a motion for a writ of attachment for this witness, but had not yet filed it. Along with the DNA evidence, her testimony also placed Jones at the scene of the first fire. The defendant’s mother and two of his ex-girlfriends were next on the stand. As hostile witnesses, I had them identify the photographs from his Facebook page, had them verify a number of other personal facts establishing its authenticity, and finally had them testify that the printouts were in fact from his Facebook page. My final witness was Fire Marshal McCool, who offered the hospital records and Yahoo email records into evidence. The last exhibit offered was the Facebook printouts, which were admitted into evidence and promptly published to the jury to great effect.
The primary thrust of the defense consisted of variations on the same theme, i.e., that there was insufficient evidence to directly link Jones to any of the fires and that we were possibly prosecuting the wrong person. Jones’ able defense counsel emphasized that more than one person contributed DNA to the black cloth in the gas tank, pointed to a number of other forensic tests that could have been performed but were not, and argued that there were a number of leads and other potential suspects that were not thoroughly investigated.
The defendant chose not to testify, no doubt based on his recent felony conviction and prison sentence for delivery of a controlled substance. The defense rested without presenting any evidence, opting instead to argue that the evidence failed to establish beyond a reasonable doubt that Jones was the perpetrator of the fires. Not unexpectedly, the court granted the defense’s motion for dismissal as to our weakest count, which involved the largest of the six fires and occurred on the second day of the defendant’s three-day arson spree. This was the only count for which we had no eyewitness testimony or forensic evidence. The remaining five counts were submitted to the jury.
After approximately two hours of deliberation, the jury returned its verdict: guilty on two counts of arson of a habitation, guilty on one count of arson of a building, and not guilty on the other two counts. The court ordered a pre-sentence investigation report to be prepared and the case was reset for sentencing.
On May 14, Stanford Dewayne Jones was sentenced to 20 years’ imprisonment in the Texas Department of Criminal Justice. Of course, the jurors were unaware throughout Jones’ trial that he had already commenced serving a seven-year sentence for delivery of a controlled substance. They were also evidently unaware that the defendant’s Facebook threats had been published in our local newspaper and aired on local newscasts on several occasions before the trial had started.
I likened my trial strategy to a three-legged stool, consisting of the eyewitness testimony, DNA evidence, and Facebook threats. The stool would not stand if even one of the legs were missing. Looking back, I believe that the time I expended planning my predicate for the Facebook pages was absolutely invaluable. I also believe that taking the time to thoroughly brief the issues for the court prior to trial greatly facilitated the admissibility of the evidence. In the end, I was able to get almost all of my evidence before the jury, which practically compelled a finding of guilt.
Stanford Dewayne Jones demanded a fair and impartial jury trial, and that is exactly what he received. As I argued to the jury in summation, when he chose to take his anger out on his neighbors by setting those fires, he burned the bridge of freedom behind him. I like to think that the residents of the north side of Lufkin are sleeping a little bit easier now.
1 541 U.S. 36 (2004).
2 Id. at 56.
3 358 S.W.3d 633 (Tex. Crim. App. 2012).
4 Id. at 638 (emphasis added)(footnotes omitted).
5 Id. at 639 (footnotes omitted).
6 Id. at 642.
7 Id. at 646 (footnotes omitted).
8 Id. at 645-46.
9 Tex. Penal Code §28.02(a).