Raleigh County Assistant Prosecuting Attorney Brian Parsons on Friday asked Fayette County Circuit Court Judge Paul Blake to order Facebook to hand over account data from two Oak Hill sisters who are among those charged with causing the death of 8-year-old Raylee Browning in December 2018.
Parsons, who was appointed special prosecutor in the case on Jan. 8, made the request at a pre-trial motions hearing for Marty Browning Jr., Julie Titchenell Browning and Sherie Titchenell. All defendants are on trial for Raylee's death. They were each charged by Oak Hill Police Department in December 2019 with one count each of death of a child by parent and child neglect causing death.
Marty Jr. was the victim's father. He was in an intimate relationship with Julie when Raylee died. Sherie lived with the couple and cared for Raylee and Julie's three children, who also lived in the house, according to court documents.
Although police have obtained Marty Jr.'s Facebook data, Parsons said, the California-based company will not give Fayette investigators the sisters' Facebook activity without an order from Blake. He said that the company has, so far, ignored a Fayette magistrate's order dated June 21, 2019.
"I filed this motion after having had an opportunity to speak to the investigating officer," said Parsons. "He served search warrants on Facebook.
"The social media company's taken the position that they will not comply with the search warrant. They will only comply with a court order. We're asking that you order that," Parsons said.
Parsons said he wants the information because it could provide evidence of a "fraudulent scheme" or "misappropriated funds through social media that pertain to the defendants in this case."
He added that "exculpatory" evidence, or evidence that is favorable to the defendants, could also exist.
Blake said he will review arguments from Parsons and the three public defense attorneys no later than Friday, Feb. 26.
Raylee died on Dec. 26, 2018, at Plateau Medical Center of sepsis, which was related to untreated pneumonia. Medical staff also discovered multiple bruises, burns and lacerations on the girl's body and a tear in her rectum.
Another child who lived in the home said Raylee was singled out for abuse by the three adults, particularly Sherie.
The girl reported that the three adults once forbade Raylee to drink water for three days, that they forced the girl to wear a diaper and sleep on the floor, that they withdrew her from Mount Lookout Elementary School and home-schooled her to hide alleged abuse and starvation, that they forbade the girl to eat and that they forced her to stand quietly or walk the stairs and halls for hours while other children in the house were home-schooled by Sherie and a visiting adult.
OHPD officers found a sex toy and a hammer in the bedroom that Raylee allegedly shared with Sherie. They also noted that a number of bloody tissues were in the bedroom on the day the girl died. Although Sherie explained the tissues by saying Raylee had recently been having nosebleeds due to psychiatric medicines she was administered, Julie and Marty both told police that they were unaware of the nosebleeds.
Marty, Julie and Sherie and each of their court-appointed attorneys all appeared Friday before Blake via a Microsoft Teams app meeting. Parsons and Pack were also present via digital meeting software.
Raylee's mother, Janice Wriston of Fayette County, reported to media that Julie and Marty set up an online account, using social media, to raise money for Raylee's funeral expenses in December 2018. She alleged that the couple instead used Raylee's funeral donations to get married and travel to Florida, where Julie and Sherie had once lived.
Julie's Twitter feed showed that she had set up a GoFundMe account in March 2018, asking followers to donate to "Help Them Stop Bullying and Starvation."
The account had been disabled by January 2020 and the charity benefited and amount raised were not published.
Julie's attorney, Mark Plants, objected to Parsons' request for her Facebook data.
And Evan Dove, Sherie's court-appointed attorney, objected to the state gaining access to Sherie's social media records, "beyond a specific request, for a specific period of time."
Dove said a second child abuse and neglect case involving Raylee exists. That case is sealed, meaning the public does not have access to the hearings or evidence. Dove reported that, in the sealed case, West Virginia Department of Health and Human Resources (WVDHHR) and the State of West Virginia were working under the same office with the prosecutors in the criminal case before Blake.
"The State of West Virginia did not desire to bring forth a criminal complaint or a criminal charge or a criminal indictment," Dove said.
Dove said that, during the year-long investigation of the sealed case, a state agency had asked for social media data and that the team of defense attorneys for the father and the two women coordinated and filed a motion to block the request.
"We informed them there were not criminal defendants (in the second, sealed case). Without a warrant, we would not let them take unrestricted access to all media accounts," he said.
Dove added that social media companies notified the defense team that they "were not going to do anything."
"This is now a criminal indictment," said Dove. "They have a warrant for a request of this. There's nothing preventing them from getting it, legally."
Defense attorneys said they were concerned that Parsons was on a "fishing expedition" to bring a superseding indictment for fraud against one or more defendants.
"This alleged crime happened in 2018," he said, adding that two prosecuting attorneys' offices and various social service agencies had been involved in the case.
Parsons countered that the warrant had been issued in a timely manner but that Facebook had ignored it, prompting him to seek an order from Blake once he had taken over the prosecution and that the information in the sisters' accounts could pertain to the current charges against them.
"I'm not going to let this sit as a search warrant that a third party is going to ignore and thumb their nose at," Parsons said. "I do believe that there is further criminal conduct that may exist here, that does go outside the scope of the (current charges)."
He added that he would present to Blake by Monday a supporting argument for his motion. On Friday, he told Blake, he did not have a case because the legal quagmire appears to be a novel one.
"It is unprecedented that a search warrant's issued and a third party says, 'We're not going to honor it,'" he explained.
Blake noted that Facebook had concerns about privacy and ordered that each attorney provide arguments on Parsons' Facebook motion by Friday, Feb. 26. Blake will review the arguments prior to making a decision.
"I saw the application for search warrants in all three files, and those search warrants were issued," said the judge. "Probable cause was found by the magistrate.
"We really already have a court order to disclose those to law enforcement officers," mused Blake. "I'd like to see some authority as to how I can do this.
"The problem here is with Facebook not wanting to turn it over without a court order or the consent of the people who engage in Facebook, and, of course, they're not going to give their consent.
"I don't know how Facebook can put restrictions on what they divulge and what they don't, particularly when they have a court order from magistrate court," the judge added.
Around 2.8 billion people in the world use Facebook to store personal messages, payment methods, pictures and other data. In 2019, the federal government fined Facebook $5 billion after Cambridge Analytica, a British political consulting firm, obtained data for 87 million users without their foreknowledge or consent.
Facebook is currently building a 600-mile fiber optic cable through West Virginia, which Gov. Jim Justice has said will enhance fiber optic connectivity in the state.
Blake granted a request by Parsons to continue the trial from its original March 10 date. He suggested every effort would be made to honor defense attorneys' joint requests that the trial occur within this cycle of court, which ends the second Tuesday in May.
He anticipates that the trial could take up to four days. Parsons has said he has at least 45 witnesses.
Defense attorney Steve Mancini, who represents Marty Jr., asked that the continuance order note that the continuance was granted on the state's request. He also reported that the West Virginia Medical Examiner's Office had billed him $800-$900 to release requested materials to an expert witness his office had hired.
"As far as the amount of the bill, that's not an issue for me," Mancini said. "But as far as the principle of it, my client, in effect, has to pay money.
"I believe that since these materials come from a state's witness, the ME's office, we're entitled to discovery without cost to the clients or the state."
Blake said the public defenders' office would take care of the bills.
On March 26 at 1:15 p.m., Blake will hear motions from both sides, including defense motions that he grant a change of venue to move the trial from Fayette County and that charges against Marty Jr., Julie and Sherie be dismissed.
Blake told each party to submit a notice of which motions they want Blake to hear on that day. He set aside all afternoon of March 26 for those motions, he said.