Defense wants judge to set aside conviction for abduction based on cellphone data

“I can’t type to[o] cold . . . ,” Chelsea Steiniger texted her boyfriend as she hopped into the stranger’s white van in Charlottesville late on a December night in 2012. “Some dud[e] is giving me a ride.”

It was the first of many increasingly frantic texts that would narrate her abduction, she would tell a jury, as the van drove into the darkness.

The then-20-year-old woman said at some point the man clapped a chemical-soaked bandanna over her mouth and she passed out. She said she awoke in an abandoned house to the clicking sound of the keys of her phone. Her abductor was sending taunting texts to her boyfriend: “iMMa warm her up.”

When the man stepped out for a moment, Steiniger told the jury, she leapt from a balcony to escape.

In May, a Charlottesville jury convicted Mark Weiner, a 53-year-old Montgomery County native, of abducting Steiniger with intent to defile, based almost entirely on her harrowing testimony and the text messages. The jurors recommended a 20-year sentence.

But new attorneys hired by the defense say key evidence never heard by the jury shows not only that Weiner is innocent but also that the crime never occurred. Data from Steiniger’s cellphone, they say, show it is unlikely that she was at the abandoned house that night.

They will argue Wednesday that a Charlottesville area judge has the power to set aside the conviction before sentencing. The Albemarle County prosecutor stands by the guilty verdict.

Law enforcement officials have used data from cellphones, GPS devices and social media as powerful tools to obtain convictions in recent years, but the Charlottesville case is one of a growing number in which defendants are mining the same technology to assert their innocence.

In 2012, a Fairfax County man used posts he made on Facebook to argue that he could not have been at a robbery. His conviction was later overturned. In New York City, authorities dropped murder charges against a man after he showed he used his subway fare­card five miles from the shooting scene. And in a twist, defendants have asked courts to order the NSA to turn over cellphone data collected from its recently revealed surveillance programs.

In Weiner’s case, attorneys Steven D. Benjamin and Betty Layne Desportes say in court filings that an expert analysis shows that Steiniger’s phone repeatedly accessed cell towers close to her mother’s apartment during the time of the abduction but never communicated with a tower about 400 yards from the abandoned house. The mother’s home is 1.5 miles from the abandoned house. The defense contends that if numerous texts had been made from the house, at least some would have pinged off the closest tower.

Albemarle County Commonwealth’s Attorney Denise Luns­ford and Steiniger declined to comment, but Lunsford disputed the evidence in a filing on Tuesday. She also said in previous interviews that she believes that Steiniger is telling the truth and that the cellphone analysis is flawed.

“The ‘facts’ set forth by Weiner are largely a fictional account of what Weiner would like for the evidence to have been absent cross examination and opportunity to present contrary evidence,” Lunsford wrote in the filing.

Weiner, a father with no previous felony convictions, maintains his innocence and said the case has cost him everything — his savings, his home in the Charlottesville area and his standing in the community.

“Prior to my arrest, I had been married for over 20 years,” Weiner said in a statement to The Washington Post. “I was a grocery store manager, the father of a 9-year-old son, a full-time ‘A’ student at the community college, and a volunteer to multiple service and faith organizations. . . . I lost my freedom and so much more when I was arrested.”

For her part, Steiniger testified at trial that she endured a nightmare that could have been worse had she not escaped.

“Where are you taking me and what the [expletive] are you . . . doing?” Steiniger told jurors she asked the man.

The competing stories offer starkly different versions of the truth: Did Steiniger narrowly escape a predator or was her story, as Weiner’s attorneys contend, a fiction that spun out of control?

Steiniger, then a waitress at Red Robin, left her boyfriend’s home in Charlottesville about 11:30 p.m. Dec. 13, 2012, to walk to her mother’s house. The defense contends that she wanted to stay the night. She testified that her boyfriend lived in government-run housing that did not permit overnight visits.

During the trial, Steiniger testified that she noticed a white van passing her again and again as she walked toward a Lucky 7 convenience store. Eventually, the door of the van opened.

“He said, ‘It’s . . . cold outside. Do you need a ride?’ ” she testified, according to a court transcript.

Steiniger and Weiner had never met before, but their lives would be bound together over the next hour.

Weiner contends he drove Steiniger to her mother’s apartment, she gave him her phone number and got out. His attorneys buttress the story with a matchbox found in Weiner’s car with Steiniger’s number on it. The evidence was never presented at trial.

The defense claims that she then invented the abduction story and made up the texts to provoke her boyfriend. “Her story was pure fiction and an affront to common sense,” Benjamin wrote in his motion.

In Steiniger’s telling during the trial, Weiner asked her uncomfortable personal questions during the drive, touched her thigh and missed a turn to her mother’s apartment. She grew increasingly anxious, texting her boyfriend at one point “he wont let me out of the car.”

Steiniger said she passed out seconds after Weiner applied the bandanna to her mouth. At that point, prosecutors said, Weiner took Steiniger’s phone and began sending taunting messages to her boyfriend. “She was a fighter ill give her that much,” one read.

When she awoke in the abandoned home, Steiniger feigned being unconsciousness until Weiner went back out to the car. She gathered her things, including the phone, and ran.

In the meantime, her boyfriend had alerted authorities, who called Steiniger’s phone and left voice messages. Steiniger testified that she never answered those calls because her phone had died. She trudged back to her mother’s house and recharged her phone before retrieving the messages.

The defense takes issue with a number of aspects of that story. An analysis the defense commissioned says Steiniger’s cellphone accessed the two cellphone towers near her mother’s apartment dozens of times between midnight and about 2:15 a.m but never the one near the abandoned home.

John B. Minor, a communications expert who has testified in numerous trials, reviewed the analysis and said it appeared credible upon a cursory examination. He said it was difficult to explain why Steiniger’s phone was pinging off the tower near her mother’s home, if she was at the abandoned house. “It would be more likely that the device would register with the tower nearer to the abandoned house,” he said.

The defense also said cell phone records show Steiniger checked her voice mail during the time she said her phone was dead and received and made phone calls.

Lunsford wrote in her response it is impossible to establish the location of Steiniger’s cellphone during the abduction using the data. She said the cell tower accessed can only “narrow down a likely location of a cellphone.”

In addition, she said Steiniger’s cellphone had accessed a tower remote to the mother’s apartment and the abandoned house during the abduction, showing the trickiness of such data.

Lunsford also wrote that Weiner’s testimony had holes, including inconsistencies in where he picked up Steiniger and the route he took that night.

“On cross examination, Weiner’s credibility became an issue as Steiniger’s had,” she said. “Among other things, Weiner was cross examined about receipts from stops he testified that he made that evening which were never recovered from his van.”

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