News File Photo Former Alpena Public Schools teacher Heather Winfield, accused of having sex with a student, appears in court via videoconference in this July 2020 News file photo.

ALPENA — Judge Roy Hayes today postponed the trial of Heather Winfield, the former Alpena Public Schools teacher accused of sexually assaulting a student, after new data from Google was given to attorneys only days before the trial was to start.

A new trial date will have to work around the schedules of circuit courts in both Alpena and Charlevoix, where Hayes is judge, as well as around the schedules of attorneys. Hayes was assigned Winfield’s case because of a packed docket for local judges.

In Charlevoix, Hayes is currently scheduling trials as far out as April, although he intends to shuffle schedules to make room for the Winfield trial as soon as possible.

The new information will take weeks, at least, to process, defense attorneys said in asking for the delay. Prosecutors said the data shouldn’t take long to evaluate and the data wouldn’t offer any real evidence for either side.

Postponed in September 2019 because Google had not yet produced data both sides expected to support their arguments, the trial — scheduled to go to jury selection Oct. 15 — will once again be adjourned after that information was finally made available over the weekend.

The defense told Hayes at a hearing this morning that a fair defense required more time to understand and apply the geofencing data provided by Google.

The defense believes the evidence will show their client was telling the truth when she testified earlier that trips to local hotels — identified by the alleged victim as locations of sexual trysts — were actually family getaways.

The News does not identify alleged victims of sexual assault.

Alpena County Prosecutor Cynthia Myszynski protested the delay, saying the defense was wrong in estimating how long it would take to understand the new data.

Geofencing data, Muszynski explained, allows Google and other companies to set parameters around a specific area — such as a hotel room — and track the comings and goings of electronics users within that area.

The data is gathered from any one of multiple apps that track the location of a device, though permission to share location data can be turned off by the user.

Muszynski’s office requested the geofence data from Google, hoping it would prove who was with the defendant in the hotel rooms on several specified dates.

Hotel customers passing by in the hallway or in an adjacent room would have shown up on Google’s geofencing data. Google identified only the devices that had spent significant time in the room before giving the information to her office, Muszynski said.

A first look at the Google data indicated it was “neither exculpatory nor the smoking gun we were trying to find,” Muszynski said.

Either Google’s information is not reliable or Winfield and anyone with her had disabled location-tracking features on their electronic devices, the prosecutor said.

An analysis of the data by a Michigan State Police-Alpena Post trooper who has been instrumental in getting the information from Google only took a day and a half, Muszynski said, insisting that the defense could glean what information they needed from the data just as quickly, so the trial could continue as scheduled.

Defense attorneys protested that such a cursory look at what they deem crucial evidence would make it impossible to mount a fair defense of their client. Whether the data shows what they were expecting or not, they said, it would potentially drastically impact their defense tactics, including the questions they would ask both witnesses and potential jurors.

Hayes, convinced that denying the request for a delay would step on the constitutional rights of the defendant, said the trial could not continue at the end of October, as planned.

Some of the 200 jurors sent a pre-jury selection questionnaire will be notified in a matter of days that they are released from jury duty. Attorneys will meet on Oct. 16 to compare notes and discuss rescheduling timelines.

GEOFENCING

Geofencing is commonly used to personalize advertising from companies that send notifications as people enter a specified space, hoping to encourage a purchase or store visit.

This year, the technology has seen expanded use during the coronavirus pandemic. Hawaii officials have toyed with using geofencing to keep visitors on resort property as a coronavirus-fighting precaution. Some countries have used the geofencing during pandemic lockdowns to catch people who don’t adhere to quarantine restrictions.

During this election cycle, voter-registration groups have used location data from cell phones of protest participants to encourage voter registration, The Wall Street Journal reported.

Though it is gaining increased use as a law enforcement tool, geofencing has been challenged as a violation of Fourth Amendment rights, and geofence warrants have been declared unconstitutional by at least two federal judges.