Text messages from district attorney could have been faked
District Attorney Jay Gaither has raised the possibility that some of the inflammatory text messages cited in a sexual harassment lawsuit against him could have been fabricated.
That is entirely possible and "very simple to do," said Larry Daniel, digital forensic examiner and cellular analyst with Raleigh-based Guardian Digital Forensics. "You can create an entire string of text messages. You can Google how to do it."
But it also will be possible for an investigator to tell whether any of the texts are likely to be fakes, he said.
The civil suit filed late Thursday in U.S. District Court in Statesville included 35 pages of text messages between Gaither, 51, and Whitney Nicole Shaffer, 27, who worked as an assistant district attorney in Hickory from February to May 2013. Shaffer alleges in the suit that Gaither made inappropriate comments to her, groped her, tried to kiss her and to force her to touch him, and sent some sexually suggestive text messages as well as pictures taken from his lake house in Hickory.
Among the texts, one sent at 10:10 a.m. April 9 said, "Do you ever wear loos fitting dresses? Or skirts?" one at 6:53 p.m. on April 28 said, "I've laid hands on you and love the feel of your body," and one at 7:59 p.m. April 28 appears to ask whether she has had sex since August.
Gaither did not return calls Friday from the News-Topic, but the Hickory Daily Record reported that on Thursday night Gaither said in an interview that although he had not seen what Shaffer filed in U.S. District Court, some of the text messages that were included in the complaint against him that Shaffer filed in October with the Equal Employment Opportunity Commission were fabricated.
"I have seen text messages that were fabricated in (the EEOC) filings," the Record quoted Gaither as saying. “I have not viewed these messages (in the lawsuit). I have not seen anything that closely arises to the egregious conduct she alleges. Everything I see is a matter of implication and vague accusation."
When asked directly by the Record about whether he sent the “I’ve laid hands on you and love the feel of your body" text, Gaither said, “I cannot confirm or deny I said that,” the Record reported. When asked later whether he ever flirted or acted inappropriately toward Shaffer, the Record reported Gaither said, “No comment.”
To determine if the text messages are authentic, Daniel said, an analysis of both the sending and receiving phones must be conducted, and detailed records of both cellphone providers must be compared.
"It requres expert analysis to prove whether or not they are fake or real," Daniel said. "If there were text messages, the provider would have a record that can verify the date and time, but not the content of the texts. You would also look at the devices they were sent on, what was created or how that device was used."
Jim Swauger of Ohio-based Binary Intelligence said there are complications that an analyst would have to look for.
"iPhone to iPhone, there may be no record (from the cellphone carrier) because the text messaging is not SMS-based," he said. "Also, depending on the phone, a person could alter a text message within a string of texts and it go unnoticed."
Gaither said Thursday that Shaffer's allegations are an attempt to retaliate against him for firing her because she had an affair with a local defense attorney, and he reiterated that in a public statement Friday.
“I have made a public statement regarding the true circumstances of my former employee’s departure from my office. At this time I believe it is incumbent upon her to address the issue of whether she had a sexual relationship with a married defense attorney who regularly appeared as opposing counsel in her Court. I believe she owes that to the voters of this district," Gaither's statement said.
"While I am human and I make mistakes, I own up to the mistakes I make. This is not one of those occasions. Her claim of sexual harassment is unfounded and false.”
Shaffer's attorney, John Buric of the Charlotte law firm James McElroy and Diehl, scoffed at Gaither's claim.
"I find it somewhat hypocritical that someone would allege she slept with an attorney when he himself is trying to sleep with her," Buric said. "And for him to suggest she was terminated is a lie. She left a letter of resignation on her desk."
Gaither's insistence that he fired Shaffer means that at least one non-sexual text exchange in Shaffer's lawsuit would have to be a fake for him to be telling the truth.
The final text Shaffer sent to Gaither, according to the texts included with the lawsuit, was sent at 8:33 p.m. on May 5: "My letter of resignation is on my former desk in Hickory," the text reads. "I regret I cannot work a notice. I do not intend to make a public issue of my concerns so any concerns about the election or your family should not be an issue. It would be better to avoid contacting me again. You can tell others I am pursuing an alternative job opportunity."
Gaither's final text in response was one word: "Understood."