A motion to dismiss a double homicide indictment is still up in the air after the lead investigator testified to having potentially read parts of a privileged email.
Terri Storer was indicted on two counts of murder after a 2019 shooting that killed Jeremiah and Jennifer Thomas. Randy Barnhart was indicted on two counts of accessory after the fact to murder.
In January, defense attorney Jody Wooton filed a motion to dismiss the indictment due to potential law enforcement review of privileged emails between the defense and their attorneys given to law enforcement by Google during discovery.
In order to discover what could have been read, a hearing was called on Friday, Mar. 11, where the lead investigator, Senior Trooper B.J. Borsman, testified.
Greenbrier County Circuit Court Judge Robert Richardson restricted testimony to specific questions, looking to avoid the prosecution from potentially learning the privileged information contained in the email.
Borsman took the stand, explaining that when he received the results of a search warrant served to Google, it was supposed to omit all emails shared between the defendants and their attorneys.
“If I remember correctly, and forgive me if I don’t, when I received the email search warrant results, I believe that I recognized several emails, or at least recipients, listed that I felt like should have been filtered out,” Borsman said. “… Based on my previous conversations with the prosecutor’s office, their [attorney email list] would be in place [for] the search warrant. I’m thinking, basically, that’s not going to be a worry of mine. I can review what is in the emails and not worry about anything that I shouldn’t be seeing.”
“Because you are operating under the belief that those documents, that would have had these certain addresses attached, would have been redacted or removed from what’s to be obtained [from Google], correct?” Wooton asked.
“Correct,” Borsman said.
“That wasn’t the case though, was it?” Wooton asked.
“That is correct,” Borsman said.
“And, in fact, you’ve read one of the emails, and you felt like you had a ‘door open view’ and you went into a room that you shouldn’t have gotten into?” Wooton asked.
“Yes, but I would rephrase that to say that I didn’t read the email,” Borsman replied. “I opened the link for the email. I was able to determine, based on the first couple of words, … and I may be completely wrong, … I believed it to be an email shared from a client to an attorney.”
“And you’ve read some of what was written to the receiver of the email?” Wooton asked.
“If any, I would say maybe a sentence, maybe a couple of words,” Borsman said.
According to his testimony, when Borsman received the warrant results from Google on April 15, 2020, he spent approximately 30 minutes finding a specific email. However, he also opened the potentially privileged email, ultimately resulting in the dismissal motion. Once the email had been opened, Borsman explained he stopped looking at anything produced by the warrant.
“I didn’t have a reason to read through the emails [at that point], I believed I had looked through and found the one I was looking for,” Borsman said. “At that point, [when I opened the privilege email], I closed [it] out and I spoke to my sergeant. I [told him] I may have messed up and seen an email I probably should not have opened. … He said just to close it out.”
“What did you do to designate that particular email, so we can know what it is that you were looking at?” Wooton asked.
“I don’t think I need to do that, and the reason why is that the program does it,” Borseman said. “It’s far better than I would be at that. Exactly what I opened, and when I opened it, there should be a timestamp for that. … I don’t think I remember a single word.”
Greenbrier County Prosecuting Attorney Patrick Via asked the officer if seeing the email changed how he approached the investigation. Borsman stated that it did not.
Borsman testified that after seeing that email, he did not review any of the emails produced by the warrant again.
His sergeant, Steven Murphy, also testified, telling essentially the same story as Borsman.
“Did you have the thought [that] ‘I ought to tell the court or tell the defense council that we accidentally received this information?’” Wooton asked.
“No sir, my direct contact would be Mr. Via, and he would decide what to do as far as the courts and the defense,” Murphy responded.
Murphy noted that the warrant was initially served late and rejected by Google. The delay was caused by the investigation considering having the results of the warrant returned to the court, rather than the investigation, to make sure none of the prosecutors or officers saw privileged information.
“So, in January, … you held off [on the warrant] to make sure you didn’t get any privileged communications,” Wooton said. “In fact, you thought about even sending it to the court to avoid the possibility of receiving them. [This then happened in April 2020] … Did Trooper Borsman get into any specifics, as far as what communications he might have read?”
“I don’t have knowledge of what he had seen,” Murphy said.
Before making a decision, the court is looking to receive the email access data from Google, in order to determine what could have been seen. As of press time, the motion is still up in the air.
To see more on why this hearing was necessary, see “Double Homicide Indictment In Question After Potential Law Enforcement Review of Emails” at wvdn.com/26244/.
