Unrepentant on Facebook? Expect jail time

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In the age of the Internet, it might not be hard to guess whathappened to those pictures: Someone posted them on the socialnetworking site Facebook. And that offered remarkable evidence forJay Sullivan, the prosecutor handling Lipton's drunken-drivingcase.
Sullivan used the pictures to paint Lipton as an unrepentantpartier who lived it up while his victim recovered in the hospital.A judge agreed, calling the pictures depraved when sentencingLipton to two years in prison.
Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become aresource for employers vetting job applicants. Now the sites areproving fruitful for prosecutors, who have used damaging Internetphotos of defendants to cast doubt on their character duringsentencing hearings and argue for harsher punishment.
"Social networking sites are just another way that people saythings or do things that come back and haunt them," said PhilMalone, director of the cyberlaw clinic at Harvard Law School'sBerkman Center for Internet & Society. "The things thatpeople say online or leave online are pretty permanent."
The pictures, when shown at sentencing, not only embarrassdefendants but can make it harder for them to convince a judge thatthey're remorseful or that their drunken behavior was anaberration. (Of course, the sites are also valuable for defenselawyers looking to dig up dirt to undercut the credibility of astar prosecution witness.)
Prosecutors do not appear to be scouring networking sites whilepreparing for every sentencing, even though telling photos ofcriminal defendants are sometimes available in plain sight andaccessible under a person's real name. But in cases where they'vehad reason to suspect incriminating pictures online, or have beentipped off to a particular person's MySpace or Facebook page, thesites have yielded critical character evidence.
"It's not possible to do it in every case," said DarrylPerlin, a senior prosecutor in Santa Barbara County, California."But certain cases, it does become relevant."
Perlin said he was willing to recommend probation for Lara Buys fora drunken driving crash that killed her passenger last year, untilhe thought to check her MySpace page while preparing forsentencing.
The page featured photos of Buys, taken after the crash but beforesentencing, holding a glass of wine as well as joking commentsabout drinking. Perlin used the photos to argue for a jail sentenceinstead of probation, and Buys, then 22, got two years in prison.
"Pending sentencing, you should be going to [AlcoholicsAnonymous]; you should be in therapy; you should be in a program tolearn to deal with drinking and driving," Perlin said."She was doing nothing other than having a good oldtime."
Santa Barbara defense lawyer Steve Balash said the day he metclient Jessica Binkerd, a recent college graduate charged in afatal drunken driving crash, he asked whether she had a MySpacepage. When she said yes, he told her to take it down because hefigured it might have pictures that cast her in a bad light.
But she didn't remove the page. And right before Binkerd wassentenced in January 2007, the attorney said, he was"blindsided" by a presentencing report from prosecutorsthat featured photos posted on MySpace after the crash.
One showed Binkerd holding a beer bottle. Others had her wearing ashirt advertising tequila and a belt bearing plastic shot glasses.
Binkerd wasn't doing anything illegal, but Balash said the photoshurt her anyway. She was given more than five years in prison,though the sentence was later shortened for unrelated reasons.
"When you take those pictures like that, it's a hell of animpact," he said.
Rhode Island prosecutors say Lipton was drunk and speeding near hisschool, Bryant University in Smithfield, in October 2006 when hetriggered a three-car collision that left 20-year-old Jade Combieshospitalized for weeks.
Sullivan, the prosecutor, said another victim of the crash gave himcopies of photographs from Lipton's Facebook page that were postedafter the collision. Sullivan assembled the pictures, which wereposted by someone else but accessible on Lipton's page, into aPowerPoint presentation at sentencing.
One image shows a smiling Lipton at the Halloween party, clutchingcans of the energy drink Red Bull with his arm draped around ayoung woman in a sorority T-shirt. Above it, Sullivan rhetoricallywrote, "Remorseful?"
Superior Court Judge Daniel Procaccini said the prosecutor's slideshow influenced his decision to sentence Lipton.
"I did feel that gave me some indication of how that young manwas feeling a short time after a near-fatal accident, that hethought it was appropriate to joke and mock about the possibilityof going to prison," the judge said.
Kevin Bristow, Lipton's attorney, said the photos didn't accuratelyreflect his client's character or level of remorse and made it morelikely he'd get prison over probation.
"The pictures showed a kid who didn't know what to do twoweeks after this accident," Bristow said, adding that Liptonwrote apologetic letters to the victim and her family and was soupset that he left college. "He didn't know how toreact."
Still, he uses the incident as an example to his own teenagechildren to watch what they post online.
"If it shows up under your name, you own it," he said,"and you better understand that people look for thatstuff."