Text Messages Can Prove Infidelity

     The mayor of Detroit is facing potential perjury charges after claiming under oath that he did not have an extra-marital affair with a city employee. The proof of his infidelity was found in the more than 14,000 flirty and sometimes sexual-charged text messages that he sent to his former chief of staff.

Contrary to his testimony in a court case involving a police whistle-blower, transcripts of the text messages from Mayor Kwame Kilpatrick’s city-owned SkyTel messaging device detailed his liaison with Christine Beatty, who had resigned. The scandal was uncovered after an investigation by the Detroit Free Press. The  messages were sent in two months in 2002 and two months in 2003.

In court, the pair denied a sexual relationship, which was the crux of the trial. But the newspaper gained access to the transcripts of the text messages and printed examples of Kilpatrick’s and Beatty’s banter to prove that the couple had lied when they testified in the trial. Kilpatrick then convinced Detroit's City Council to approve an $8.4 million settlement of the whistle-blower lawsuit, without ever telling council members that by doing so they were agreeing to keep proof of the affair from the public eye. 

Kilpatrick has said the newspaper illegally obtained the text messages. The newspaper won't say how it got them, but it says reporters did not break any laws getting access to the messages. The transcripts of the text messages may be considered public record under Michigan’s Freedom of Information Act. Any writing that comes from the performance of official duties may be subject to the law. 

However, if those writings are of a personal nature and would be considered an invasion of privacy if made public, they may be closed to the public. Courts in Michigan have ruled that this privacy interest can't mean automatically concealing the documents. Granting access to them needs to be balanced with the public’s need for the information. The scandal in Detroit has gotten so bad that the National Conference of Black Mayors has moved its annual meeting to New Orleans to avoid being touched by its aftermath.

The messaging devices Kilpatrick and Beatty used, much like Blackberry devices, are pagers that have instant messaging and wireless e-mail. And while text messages are difficult to retrieve from any device, it's not impossibe to access them. And then it's easy to use them as proof of infidelity in the courtroom, particularly in divorce cases.

Paul Talbert, a matrimonial attorney and partner at Chemtob Moss Forman and Talbert, LLP, in New York City, represented a client whose husband waited until she was showering to check her text messages for proof of infidelity. He discovered that she was having an affair with a co-worker after handing the device to a private investigator waiting outside his home.

The private eye downloaded her text messages, getting the proof the woman's husband needed for court. “They then saw all the text messages that the two had been exchanging which clearly revealed an affair,” Talbert said. “The client was mortified that the affair was discovered. The husband immediately filed for divorce, and the wife wanted to quickly resolve the settlement.”            

Talbert has had other clients who have discovered cheating by spouses who searched text messages stored on cellular phones and Blackberry devices. He warned that criminal charges are possible for anyone for breaking into password-protected cell phones or pagers. But, if accessed legally, transcripts of authenticated messages can be admitted into court.
 
Authentication may be the problem, according to Steve Ward, president of Trademark Associates of New York, an investigative firm that specializes in computer forensics and intellectual property. Once someone accesses the text messages, the data can be considered corrupted and unusable in court, he said.