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October/November 2007 Issue | Volume 33 Number 7 | Page 22
Technology

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Forensics Experts in the Crosshairs

An Ohio court decision has serious implications for how technology can be used in exhibits-and for how forensics experts can do their jobs.

There’s a vintage country music lyric “Daddy, can you go my bail?” And soon it may be crooned by a forensic examiner near you, as battling over digital imaging continues in the courts.

Until recently, not many forensics experts worried much about going to jail. Generally, if you think of yourself as a law-abiding citizen, you don’t fret about how you would look in an orange jumpsuit. Then a few months ago along came the Ohio appellate court decision in State v. Brady (Ohio App. 11 Dist., 2007 WL 1113969, April 13, 2007). The case has serious implications for how technology can be used in trial exhibits and how forensics experts can even handle and process materials. Stay with us, because the case takes a bit of explaining.

The Difficult Matter of Authenticity

Daniel Brady, the defendant, had been indicted on 50 counts, all having to do with child pornography. Brady was indigent, so the trial court appointed a lawyer named Dean Boland, who is an expert in digital imaging, to be an expert witness for Brady.

Boland has presented to courts, on multiple occasions, evidence of how easy it is to use technology to combine the image of a real 18-year-old (perhaps underdeveloped and slender) and to morph onto that adult body the face of a minor. He used faces grabbed at random from the Internet for his demonstrations. His testimony and exhibits were presented to bolster the attorney’s argument to the court that individuals lack the capacity to know if they are looking at a real child pornographic image or one that merely “appears to be” real.

Several courts in Ohio found this argument persuasive and dismissed charges against defendants. In Ohio, unlike some other states, this evidence is crucial, as the state must prove that the images are of real children. The courts reasoned that since it was obvious from the exhibits that merely visually examining a digital image is insufficient to determine whether it is real, the court itself was unable to do so as well. Without testimony as to their authenticity (which the state was unable to provide), the images were out.

Back to the story involving Mr. Brady: Having appointed Boland as an expert witness, the Ohio state court also issued a protective order allowing him to have the contraband in the case in his possession for analysis. But shortly thereafter, while Boland was leaving a seminar on June 24, 2006, FBI agents detained him. Simultaneously, FBI agents raided his home, where he lives with his wife and three young children. As it happened, Boland had the contraband (contained on a CD) on his person at the seminar, so the raid on Boland’s home—which lasted six hours—yielded nothing other than exhibits prepared for the Brady trial.

So, you ask, given the Ohio court’s protective order, what the heck was the FBI doing?

The subpoena issued in support of the search warrant alleged that Boland violated Section 2252A, Title 18, U.S. Code. The federal statute, unlike several state statutes (including Ohio’s), does not contain the exemption allowing a “proper person” using contraband for a bona fide purpose to possess the contraband. Until this case, forensics experts (including these authors) assumed that a state protective order was sufficient to allow them to examine contraband in the fulfillment of their duties.

After taking possession of the evidence, the FBI held the possibility of federal charges over Boland’s head. Therefore, Boland told the state trial court that he could not accept another copy of the prospective evidence exhibits, could not research their origin and could not prepare the necessary digital image exhibits for the defense. Essentially, he resigned and noted that no other forensic expert would touch the evidence under the threat of federal prosecution. As no expert would work with Brady, he moved to have the charges dismissed, arguing that his due process rights to a fair trial had been violated. The trial court dismissed the charges.

The state appealed.

The Appellate Court Weighs In

The appellate court affirmed the lower court’s ruling, essentially setting up a confrontation between the state and federal government. Does the federal child pornography law trump all the state laws? We may find out shortly, since the state has now asked the Ohio Supreme Court to review the appellate decision.

But what we know for now is that the appellate court was resolute in its protection of constitutional rights, pointing out that Brady had been denied the services of any competent expert in light of the federal threat. Moreover, it noted Boland’s testimony that any attorney representing Brady would be ethically bound to inform any potential expert of the threat of federal prosecution. The state argued that Boland could examine the contraband materials at the prosecutor’s office. The court rejected that argument for critical reasons—it still didn’t allow Boland to create his trial exhibits and the prosecutor didn’t have Boland’s analysis software.

Worse yet, it could be argued that Boland “received” child pornography while working in the prosecutor’s office, in violation of Sections 2232(a)(2)(A) and/or 2252A(a)(2) of Title 18, U.S. Code. If he were to investigate the Web sites from which the images originated (as an example, to see if the sites claimed that everyone depicted was over the age of 18, negating intent), he might then be found to be in violation of Title 18, Sections 2252(a)(2)(A) and 2252A(a)(2), U.S. Code—which prohibit receiving any images of child pornography that have traveled in interstate or foreign commerce, “including by computer.” Finally, Boland testified that he couldn’t record his findings and would therefore have to memorize his entire analysis of hundreds or perhaps thousands of images.

We would add the following: Forensic examiners are handicapped by not having a complete library of their reference materials available, not having all of their equipment and tools available, and the inability to start long searches that they ordinarily might leave running overnight, collecting the results in the morning. In addition, the cost to the defendant (or the taxpayer) is at least two to three times higher when the expert has to go on site and effectively “baby-sit” the forensic analysis process while searches or routines are running. Such charges don’t apply back at experts’ home labs, where they can walk away and work on another case (obviously after securing the contraband).

Where Things Go from Here

When we interviewed Boland for this article, he was relieved (of course) that there was no longer a threat of federal prosecution. However, to make that threat go away, the federal authorities required him to sign a deferred prosecution agreement, the most notable part of which is that he had to agree not to create any further exhibits of “adult-to-child-morphed images.”

So how did we end up with this inane federal law that keeps experts (and attorneys) from effectively doing their jobs when hired by defense counsel in such cases? In the usual convoluted manner of Congress, this revision of a previous law—which did allow attorneys and experts to hold contraband—was buried in an omnibus bill and passed without any consideration of its Constitutional consequences. The defense bar and forensics experts throughout the country have been waiting for a case to reach the U.S. Supreme Court in hopes that the Court would declare the federal law unconstitutional. Will the Brady case make it there? We’ll see—if the Ohio Supreme Court upholds the appellate decision, the case ends there. If they reverse, Boland has indicated that his client would certainly file a writ.

Beyond that, one has to wonder why, with the enormous increase in child pornography, the FBI would choose to target not the criminals but their experts. There’s something upside-down about that kind of decision. In point of fact, any defense expert who handles these kinds of cases will tell you that they feel like they are working for the prosecution most of the time. Generally, they find more damning evidence than law enforcement found, and defense counsel use their resulting reports to club the defendants into seeing the wisdom of accepting a plea, thereby saving tax dollars and getting the guilty behind bars. Only once has any expert at Sensei testified that he believed that the defendant was innocent and had been framed—and indeed, the defendant was found not guilty. Do we really want to deprive someone who is innocent of competent expert help?

The federal law, as it currently stands and as enforced in Brady, certainly seems to nibble away at the heart of the Constitutional right of due process. But if the FBI is reading this, all child pornography previously held in accordance with rigorous security protocols under court order at Sensei Enterprises, Inc. is now gone for fear that we too would be raided. Are we and forensics experts like us still doing analysis on federal sites? Yes, albeit a tad nervously…

About the Authors

Sharon D. Nelson and John W. Simek are President and Vice President, respectively, of Sensei Enterprises, Inc., a computer forensics and legal technology firm based in Fairfax, VA. They are coauthors of The Electronic Evidence and Discovery Handbook: Forms, Checklists, and Guidelines (ABA, 2006).

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