Lawyers: New law makes child-porn defense tougher
By Marisa Taylor | McClatchy Newspaper

Child pornography cases | View larger image

WASHINGTON � As the Justice Department steps up an aggressive crackdown on Internet child pornography, a little-noticed provision of a sex offender law is making it harder for defense attorneys to review some of the most important evidence against its suspected purveyors and consumers.

In response to a section of the Adam Walsh Child Protection and Safety Act of 2006, judges and prosecutors are requiring defense attorneys and computer forensic experts to examine digital pornography images on computers at government facilities, rather than receiving their own copies. Often, FBI agents stationed in the rooms monitor their activities.

The new provision has triggered an emotional debate about the constitutional rights of suspects who are accused of some of the most heinous crimes.

Supporters say the measure is needed to prevent children from being revictimized by unnecessary copying and distributing of the digital contraband. Many of the images gathered as part of the evidence depict very young children being raped and beaten.

"The law is designed to protect the rights and interests of child victims," said Andrew Oosterbaan, the Justice Department's chief of the Child Exploitation and Obscenity Section. "I don't think there's a human being out there who wouldn't agree with its purpose."

But some of the provision's most vocal critics are former law enforcement officers and prosecutors, who say their ability to defend child-pornography suspects has been compromised.

"This has had a profound effect on defense work," said Wayne Marney, a computer forensics expert and former Oregon state trooper. "It could make a difference between whether someone is convicted or found not guilty."

Computer experts say a thorough examination of the images is crucial because malicious software and the widespread use of legal adult porn and popular file-sharing networks mean that suspects could have downloaded or sent child pornography unintentionally.

"Not everyone charged with child porn is some lecherous scumbag who is leering around corners in an alleyway," said Dean Boland, an Ohio defense attorney and former state prosecutor. "It is a fact that someone may have absolutely no idea that they have child porn on their computer until law enforcement seizes it."

Sometimes after examining the evidence, defense attorneys say, they've been able to clear suspects even before charges are brought.

In one case, a tenant who was in the process of being evicted accused his landlord, a teacher, of downloading child pornography. Authorities decided not to press charges against the teacher after New Hampshire defense attorney Michael Iacopino analyzed the computer evidence and determined that the teacher wasn't at home when the child pornography was downloaded.

"But the guy still lost his job," Iacopino said. "Even just an accusation is enough to totally destroy your life."

In what appears to be an unintended effect of the provision, defense attorneys technically could be prosecuted for possessing child pornography even if they receive copies legitimately as evidence in state cases.

In some states, attorneys and experts continue to get such copies because the law provides an exception for sharing evidence in state cases. But federal authorities have warned their state counterparts that the new restrictions apply to state cases as well as federal ones.

Boland stopped testifying in Ohio child-pornography cases after the FBI threatened to indict him for keeping copies of court exhibits from state cases.

The FBI searched Boland's home and seized his computers in 2005 � before the Adam Walsh act was enacted.

Boland had been allowed to testify that digital images are so easily manipulated that it's hard to determine the difference between real and fake child pornography. To demonstrate his controversial theory in court, he created composite images by merging digital photos of what appeared to be ordinary children with those of adult pornography. He selected the images randomly from the Internet and prepared them as court exhibits.

With the change in the law, defense attorneys and experts say, federal prosecutors are more likely to scrutinize them even for merely receiving a state prosecutor's evidence.

When he was asked whether defense attorneys and experts in state cases risk being prosecuted, Oosterbaan said "defense counsel who are acting pursuant to a valid court order know very well that they're safe." He said he couldn't elaborate because of Justice Department policy.

Federal prosecutors have indicated that they intend to apply the law to state cases. In Dallas, U.S. Attorney Richard Roper urged the county's district attorney not to turn over copies to the defense.

"Simply put, child pornography is contraband," Roper wrote in a letter to District Attorney Craig Watkins last May. "At this time, there are no known exemptions to this statute for state prosecutors to turn over contraband to defense attorneys."

Watkins' office didn't respond to questions. In an interview, Roper said he'd sent the letter at the request of the district attorney's office. He said he wanted to warn of the implications for cases investigated by a task force that receives federal money.

"We just want people to be careful not to hand this stuff out willy-nilly," he said. "It was not the intent of my letter to throw down the gauntlet."

Defense attorneys question why child-porn images should be handled differently from other contraband. Defense attorneys, for example, routinely get samples of narcotics so they can do independent analyses of the evidence for trial.

"It's almost a theological approach," said William Braniff, a San Diego defense attorney and former U.S. attorney under Presidents Reagan and George H.W. Bush. "Prosecutors and agents can have copies. They can show those copies to the judge, the jury and their experts. Why deny the defense the same thing?"

Federal prosecutors and agents say they're simply enforcing a law that provides better oversight over child pornography. They dispute defense characterizations of the impact of the law and describe it as a minor inconvenience. So far, most federal district judges have concluded that the defense is getting sufficient access to evidence at government facilities.

Before the Adam Walsh act, authorities routinely sent defense attorneys and experts copies of digital images. After the defense reviewed the evidence, it would be destroyed or returned.

The arrangement allowed defense attorneys to hire experts who'd run tests on the computer hard drives, scrutinize Internet histories and determine whether the images were of minors or adults.

Because experts no longer can analyze the images in their own offices using their own equipment, the defense has much less time to examine the evidence, attorneys said. In addition, the cost of such services has increased � often by tens of thousands of dollars � because experts are required to travel across the country.

Prosecutors and agents, however, say they need tough new laws to make even a small dent in the proliferation of child pornography.

According to the Justice Department's most recent statistics, federal prosecutions of child-porn and abuse cases have increased almost 360 percent, from 344 in 1995 to 1,576 in 2005. Those numbers don't include prosecutions brought as a result of Project Safe Childhood, an initiative aimed at the prosecution of child-pornography cases that was launched in February 2006 by then-Attorney General Alberto Gonzales.

Former U.S. Attorney Braniff said the new evidence provision of the Adam Walsh act was "definitely onerous for the defense. The question is whether it's unconstitutional."

In Ohio, a state court agreed to dismiss the charges against two of Boland's clients, concluding they could no longer get a fair trial without his testimony. Boland argued that he no longer could testify in any of his cases without risking federal prosecution.

To avoid federal indictment, he's agreed to stop creating the composite images for 18 months.

Boland's testimony had proved helpful to the defense. After hearing it, a state judge dismissed all digital child-porn charges against a defendant.

A detective, however, brought the court exhibits to the FBI's attention. FBI agents tracked down relatives of several of the children whose photos Boland had taken off the Internet, according to an FBI affidavit filed in federal court.

In the affidavit, FBI Agent Charles Sullivan said Boland had bragged publicly about keeping the court exhibits even though he knew federal authorities were investigating him, an allegation that Boland denies.

Officials at the U.S. Attorney's Office and the FBI in Cleveland declined to comment.

Boland now is being sued by the families of children alleged to have been depicted in the court exhibits.

A similar, Texas-specific change in law passed the state Senate but didn't beat the buzzer in the House at the end of the most recent session. For more about that bill, click on this link:

SB 634

So, what do you make of the suggestion that the federal statute governs state court discovery? And, would a court and a prosecutor be accomplices to possession of child pornography by providing a copy to the defense?

Then, what is our defense?

43.23(g) allows an affirmative defense for "a bona fide...judicial...or law enforcement purpose." Would that apply to the defense attorneys as well?

What do you do if you are representing a court-appointed defendant, say out in West Texas where there are no local computer experts? I do not know how willing a judge would be to approving defense expenses to pay for some expert to fly in from far away so as to be able to personally examine the 'evidence.' And even so, if you have to do the exam in a govt. facility with a govt. employee watching you, how could you do a fair and adequate job?

Don't defense attorneys sometimes consult with many different experts before they decide which is the right one? How could such a thing be done if every expert had to be flown in?

I could see defense attorneys filing affidavits saying that they were unable to give adequate representation to their client on account of a law like this; thus, writs for ineffective assistance of counsel could be granted.

43.23(g) would seem to apply because the 'judicial purpose' at issue is the defense of an accused defendant by his counsel.

What would you do if the defendant wanted drugs re-tested? You wouldn't send the drugs to the defense attorney. You would arrange for the drugs to be delivered to an accredited lab under secure conditions and make sure that the remaining drugs were returned. Certainly, the defendant would not get to keep a "sample" of the drugs or test the drugs without State oversight.

And, current discovery law already states, "Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State." CCP art. 39.14(b).

But drugs and other forms of physical evidence are different. I can't do drug or DNA testing in my own bedroom. But a computer guru can do his work at home or in an office, ect. All you have to do is send someone a hard drive or memory stick via certified mail for about $5 and you can have the files / images examined.

I work in a small county where the commissioner's court nickles and dimes everything to death. Defense counsel have a tough time getting a judge to approve expenses for a psych exam. I can see a judge going nuts over a $10 - 15,000 fee to have a "big city expert" (their words) fly in, get a rental car, hotel, and meals to spend a couple of days looking at porn just so "some pervert can get a fair trial". Small towns and counties would have to forego prosecution if it costs too much.

Yes, illegal porn is bad. But then so is murder, rape, arson, and a lot of other things that are more 'personal' and immediate then some guy looking at stuff online. It all costs money to prosecute and limited budgetary resources have to be allocated somehow.

The defense has to pay the fee to study the evidence regardless whether they get a copy of the porn or not. So, let's not exaggerate the cost by including that fee. And, I seriously doubt it would cost $10-15,000 to travel, even to West Texas. There are plenty of reasonable experts in Texas.

I'm not saying the policy can't be flexible. I'm just saying let's not exaggerate the cost to justify ignoring the policy.

Here is the fee schedule for just one company that I found when doing a google search. Notice that the retainer fee is a minimum $4,000.

http://www.miracleoflights.com/user/Rate_Sheet.pdf


Computerlegalexperts.com
Schedule of Fees
[Effective 1 January 2006]
Expert Witness Fees:
� $185.00 per hour for on-site evidentiary recovery, analysis and report preparation.

� $170.00 per hour for laboratory and research work.

� $250.00 per hour, with a one day minimum (8 hours), for Expert Witness testimony at deposition, trial or for court appearances.

� $195 per hour for other work to be performed that is not listed above

� There is a "sliding-scale" for clients of lesser means or if the matter exceeds a certain cost threshold.

Portal to Portal Rate:
� $75.00 per hour. No fees are assessed if the matter is within 25 miles of the Manassas, VA area.

Hotel Accommodations. if required:
Marriott, Residence Inn, Wyndham, Holiday Inn Crowne Plaza, Westin or equivalent.

Transportation [If required]:
� Air: The most economical means with �Y+� class Coach, Business Class or First Class (see retainer agreement)
� Car Rental: SUV or equivalent.
� Mileage: $.50 per mile for POV or actual gasoline costs + 10% for rentals.
� Parking: as required
Other:
Materials, document courier service, postage, facsimile and telephone: Cost, plus 10%.

Required Retainer: $2,000 (local) or $4,000 (outside of the National Capitol Region) and if all of the terms and conditions are met, the balance of the retainer is refundable to the client within 45 days, after the conclusion of the litigation or settlement.

Payments made by credit card or e-check are subject to a 5% handling fee.

All accounts must be current and all fees for Expert Witness trial testimony are due 15 days before trial.

Terms and Conditions:
1. Cash, wire transfer or Cashier's Check, unless other arrangements have been made. Costs will be billed on an ongoing basis, with payment due upon presentation of billing.
2. That to minimize cost impacts to the Client, we shall endeavor to perform as much of our work via telecommuting as possible.
3. Discounts for prompt payment will be made at the discretion of Computerlegalexperts.com
4. Payments made through PayPal (E-Check and credit cards) are subject to a 5% handling fee and monies wired directly to the bank are subject to a $25 �in-wire charge.�

So are you actually a defense attorney, RTC, or a prosecutor, cuz if you were a prosecutor, you'd be using dps or the wonderful AG's cyber crime division (who kick rear) for your computer analysis.

Just sayin'...

I posted that info as a way of illistrating the earlier point about how a law like this could end up costing counties a great deal of money, as opposed to the usual way of doing business. Working in a small county prosecuting people I often see defense attorneys wanting to get court approval for expenses such as hiring a P.I. or getting a psych eval and whatnot. Understandibly, they want to use their own experts and their own work product. Judges are always nickle and diming these expenses, even though they only amount to a few hundreds of dollars. If in prosecting these kinds of cases a defense attorney is forced to hire a computer forensics consultant (which would seem reasonable as he wants to try to prove that the evidence is not what it is), who is going to be forced to physically travel from wherever to whatever, it is going to cost a ton of money!!

So the info that I posted was just something that I found on the internet when I googled terms like expert witness, computer forensics, fees, and the like. That info that I posted was representative of what I found when looking. A retainer of $4,000 -- and thats just to get started! When you compare that to the usual way of doing it (making a copy of the hard drive and express mailing it to the expert), there simply is no comparison in the costs involved.

While everyone likes to think that money is no object when you are pursuing justice, that is simply not the Real World. Which gets to the point that I was originally trying to make - a law or rule like this is going to have the unintended consequence of less cases like these being prosecuted in smaller jurisdictions. When you factor in court appointed attorney fees, costs for court time, court reporter, appellate record, and experts it does not take long before you drain your budget on cases like this.

While you will want to try to plea bargain whenever possible, most defendants are going to claim "I don't know how that stuff got there" or "I didn't put it there" or "spyware did it or some hacker dude did it (a variation of the 'some other dude did it' defense)." Okay, great. Now a defense attorney is going to have to get experts to help either prove or disprove any or all of these theories because he can't allow his client to plea on the basis of unknown or potentially bogus evidence if they guy says he didn't do it. Quality IT and forensics experts don't grow on trees, and they require specialized equipment.

If costs can be kept down on a case while still allowing the guy to get quality or adequate representation, that should be a good thing.

I would like to know how a defendant needs an independent evaluation of the forensic evidence. The computer says what the computer says. The file is where the file says it is. Give me an example of what the forensic expert would say that could make a difference. What part of the evaluation is interpretive?

Defense expert: "She looks 18 to me."

Here's another angle to the child-porn-as-court-document argument ...

Judge Defends Sealing of Electronically Filed Porn Images

Alana Roberts
Daily Business Review
10-22-2007

Chief U.S. District Judge Federico Moreno is defending his administrative order requiring court clerks to temporarily seal any electronically filed documents that include images depicting sexual or excretory acts.

The judge felt compelled to issue the order Oct. 5 after Coral Gables, Fla., lawyer Jack Thompson submitted images depicting gay sex acts in a court filing Sept. 19. The submission was part of Thompson's civil litigation against the Florida Bar, which is seeking to discipline him over the content of complaints he has filed against a variety of lawyers and judges.

For the entire article, click here:

Law.com article

As long as my schedule of fees (for 2006) is present, I'd like to address some of the comments that have been presented.

1. I do perform CJA work and please note the fifth bullet that states, in part, "sliding-scale" for clients of lesser means."

2. Second, my retainer does not apply to CJA work, since as a sole practitioner, I can be flexible whether it is $4,000 or $0, since it is my choice as to whether I will take the case. My retainer is used to draw my expenses, start-up costs and the initial layout for labor into a project.

3. Computer Forensics requires a process which entails the creation of a mirror-image or bit stream image of the hard drive, the analysis and examination of various areas within the hard drive, in order to perform an analysis. I use a Logicube Talon and the Logicube Portable Forensic Lab to acquire a mirror-image of the data in hours, not days. Just sending "someone a hard drive or memory stick via certified mail for about $5 and you can have the files / images examined..." makes about as much sense as just reading the title of the applicable statute and not reading content of the statute or the associated case law. By the way, send contraband images via USPS and you are looking at 10 years for distribution, via interstate commerce, unless the appropriate court orders are in place and even with the orders in place, I would either hand-carry (preferred) or send any evidence, securely boxed and "double-wrapped," via USPS Registered Mail (requires custodial signatures along the way), for the express purpose of maintaining the chain of custody of how the evidence traveled.

4. There is more to a "spyware" or "virus" defense, than just having the aforementioned on the machine. There are other elements that lead to an opinion, which is based upon fact (a novel concept), otherwise, the argument is equal to, "The Devil made me do it."

5. I take strong exception to the term "big city expert." I currently live in a small town, my practice in Colorado was in a small town (Longmont) and I was originally from a rural area, before urban growth took over. The costs for running a business, continuing education, overhead, licenses and equipment (hardware and software), is rolled into the hourly fee.

6. "It takes no talent to spend other people's money." One example of saving budget when performing long distance cases, is using a telephone or video-conference with the court at pre-trial hearings, when providing testimony.

7. Other Direct Costs- I take strong exception to the statement "fly in, get a rental car, hotel, and meals to spend a couple of days looking at porn..." Expert witnesses don't control the cost of airfare, rental cars hotels or meals. I don't stay at the Ritz-Carlton or the local Motel 6, but try to find something that is form, fit and functional for what I need. If I am required to do an on-site analysis, which requires travel, I would strongly suggest that you look at a five to ten days of lodging, per hard drive and three to five days for trial, at a minimum. With the passage and enactment of the Adam Walsh Act, I can only repeat what US Judge Robert Payne (E.D.VA, Richmond) said in US v Knellinger, before he granted the defense's request for protective orders- "It looks like Congress wasn't thinking... (when they passed this bill). This puts a greater responsibility on the Government to allow for "ample opportunity" for the defense to have access to the evidence, unless the jurist is willing to grant the appropriate protective orders for counsel and designated defense experts.

8. About this comment "spend a couple of days looking at porn..." I am afraid that you have either been sold a bill of goods as to what Computer Forensic Expert Witness does or there is sheer ignorance, on the part of the very few. I examine a host of things that are unrelated to images. More specifically the; who, what, when, where, why and how aspects of the matter. I also review the charges and specifications, police and investigator's reports, the opposition's computer forensic reports, prepare my affidavits, prepare computer forensic reports (as required), perform research and a host of other case related items.

9. With regards to judges, commissioners, magistrates, and attorneys, I would encourage you to contact me, directly at Computerlegalexperts.com and I will be happy to either act with a special master or discuss what services a Computer Forensic Expert Witness should be providing, including non-contraband image exemplars for your use. Jurists have a fiduciary duty to their respective jurisdiction and "can nickel and dime," for good reason. The way to avoid this is to have the Expert Witness submit a good statement of work, billings for the hours worked and a reasonable estimate of hours.

Thank you for your time.

Regards,

Steven Moshlak
Pres., Computerlegalexperts.com
http://www.computerlegalexperts.com
202.262.0225

[This message was edited by Computer Forensics Expert on 03-22-08 at .]

quote:

---

Originally posted by JB:
I would like to know how a defendant needs an independent evaluation of the forensic evidence. The computer says what the computer says. The file is where the file says it is. Give me an example of what the forensic expert would say that could make a difference. What part of the evaluation is interpretive?

---

Does the expert know what to look at for an independent evaluation or for a conviction? I tell each of my clients, I won't know what's there until I "pop the hood." By making initial inquiries about the usage, the software applications, reviewing documents and other related issues, this enables me to focus on what is there vs. going on a snipe hunt, especially since there is something known as digital fingerprints applied to files.

Regards,

Steven Moshlak
Pres., Computerlegalexperts.com

A Senate Bill will soon be voted out of committee that will mirror federal law. To view, click here.