Heard’s trial enters 4th day of testimony
By Mike Mason
Special to Martin County Currents
Prosecutors’ forensics expert debunks “hacking”
A digital data forensics expert testified Wednesday that Martin County Commissioner Sarah Heard’s claim that she lost all saved emails when her private email account was hacked simply does not make sense.
John Jorgensen, founding partner of Sarasota-based Sylint Group and former NSA (National Security Agency) cyber-security analyst, told the jury that hackers seek access to the financial, personal or medical information of their victims for profiteering. They do not announce their presence by deleting emails or contact lists.
He testified that he saw no evidence that Heard’s computer had been hacked, and he challenged the timing of what he called Yahoo!’s “data breaches” with the date of the alleged hacking of Heard’s computer.
Heard has consistently claimed that she could not respond to public records requests because her private Yahoo! email account had been hacked, deleting all emails and contacts for the previous eight years on Jan. 31, 2013.
The first public records request for all correspondence among any employee or commissioner regarding the Lake Point Restoration project was submitted to the county attorney’s office on Jan. 15, 2013, prior to the hacking. Neither Heard nor her executive aide ever responded to that request, according to earlier trial testimony.
After Jorgensen’s testimony, prosecutors rested their case against Heard, who was indicted last year along with former commissioners Ed Fielding and Anne Scott for allegedly violating public records laws.
Heard is the first of the three to go on trial. She faces up to a year in jail and a $1,000 fine if convicted, and could be removed from her $64,376-a-year post, according to state law.
The case is complicated by the county’s previous legal entanglement with the Lake Point Restoration project. The county settled the civil lawsuit by Lake Point in 2017 with a $12 million cash settlement and a letter of apology for the actions of some of its commissioners.
Also, former Martin County Commissioner Maggy Hurchalla was found by a jury in February 2018 to have interfered in an interlocal agreement between the county and the South Florida Water Management District, which damaged the water restoration project in western Martin County. Hurchalla was ordered to pay Lake Point nearly $4.4 million in damages to the rock quarry’s owners, but is awaiting a decision by the Fourth District Court of Appeal after arguing her case before a three-judge panel in March.
Jorgensen was originally hired by Lake Point to research the source of emails to and from Heard – including the four emails central to the criminal misdemeanor case against Heard – for Lake Point’s civil suit.
Prosecutors say Heard failed to preserve or produce those emails, which were sent by Heard to county staff members. Jorgensen said the emails had characteristics in the body and subtext internet routing information that indicated they originally came from Hurchalla.
Under cross-examination, Jorgensen conceded that he had not “back-tracked” the emails’ routing information to Hurchalla’s unique IP address.
Florida’s public record law allows public officials to use their private email accounts for public business, but they are required to preserve those emails and make them available for inspection upon request.
Heard forwarded at least some of those public records from her private account to her county email account, where they would be preserved, but did not testify that she had unfailingly followed that procedure with all such emailed public records to preserve them as required by law.
DEFENSE CALLS FIRST WITNESSES
Later Wednesday, Boca Raton attorney John Fumero testified that “it’s a bad idea to co-mingle private emails with public business, but it’s not unlawful to do so.”
Fumero, who was called to testify by defense attorney Barbara Kibbey Wagner, once represented both Martin County and the South Florida Water Management District for a large portion of the civil suit by Lake Point.
At that time, Martin County did not have any centralized procedure or person to coordinate responses to public records requests, he said.
Under cross-examination by Assistant State Attorney Nita Denton, Fumero said the county took 15 months to respond to Loeb’s requests for emails relating to Lake Point, which was too long. The county could have requested a longer time frame for producing emails if they felt the request was too broad.
Jorgensen’s testimony supported statements earlier in the day from Ethan Loeb, a partner in the Tampa firm that represents Lake Point, who testified that he finally received from county administrators the four emails that Heard denied had existed.
Loeb said he found those emails through a circuitous route after finding that questions in a
September 2012 email from Heard to three Martin County staff members were identical, including certain misspellings, to a previous email from Hurchalla to Heard.
Fumero was one of the first three witnesses called by the defense.
JURY HEARS SECOND VIDEOTAPED DEPOSITION
In a video shown to the jury Wednesday morning of a second deposition, Heard said under oath that she must have drafted those emails at the center of the prosecution herself, although they had been forwarded from someone else, and she did not remember doing so.
The depositions – a 2-1/4-hour video of Heard’s deposition in December 2014 that was shown Tuesday and the 75-minute deposition made in February 2017 – are likely to be the only times the jury will see testimony from Heard, who is not obligated to testify during the trial.
In the second deposition, Loeb queried Heard about her private Yahoo! account, which she said she stopped using after she believed the account had been hacked a second time in mid- or late 2013.
Heard said she started a gmail account instead.
Loeb, however, noted that Heard or someone working on her behalf listed the Yahoo! account as a contact for her 2014 election campaign, and then showed her an email she sent from that account in March 2014 to the Supervisor of Elections.
Heard replied that, “My expectation is that was an isolated incident.”
Jordan Wagner, part of the husband-wife team representing Heard, vigorously cross-examined Loeb and Jorgensen about details of their testimony, but seemed to make little headway, as evidenced by the fact that Senior Judge J. David Langford, who retired in 2013 as a circuit judge from Highlands County, rejected Wagner’s motion for a directed verdict after prosecutors rested their case.
Outside the Martin County Courthouse after he had finished his testimony, Loeb said he thinks there is still more “bad stuff we don’t know about yet.”
Loeb said he didn’t think the three commissioners who turned against Lake Point had any malice toward the company, but after no-growth advocates regained control of the county commission, they sought to undo projects that the previous commission had approved.
He said things might have played out differently, however, if Hurchalla had not been feeding false information about the Lake Point project to the commissioners.
Jordan and Barbara Kibbey Wagner told the judge they are likely to wrap up their defense Thursday, with closing arguments expected Friday morning.