Mamas, don’t let your babies grow up to be defense experts in child pornography cases…

Dean Boland parlayed a law degree and being a whizz with computers into a nice gig at the Cuyahoga County prosecutor’s office, that combo landing him a place at the trial table of the biggest civil case in the county’s history:  the office’s defense of the attempt of Sam Sheppard’s son to win a declaration that his father was innocent of the murder charge levied against him almost a half-century earlier.  Boland’s job was to manage the computer presentation of the evidence, no mean feat in a case involving 41 days of trial time and myriad witnesses and exhibits.

Boland left for private practice after that, and found an interesting demand for his computer skills:  as an expert witness for the defense in child pornography prosecutions.  Technology had thrown a real curve at the government in those cases:  reverse aging and photo and video editing software made it much more difficult to establish that an actual child was the subject of a particular picture or video clip.  That took on added importance in 2002, when the US Supreme Court held in Ashcroft v. Free Speech Coalition that “virtual” child pornography was protected by the First Amendment.  Last year in State v. Tooley (discussed here), the Ohio Supreme Court acknowledged that expert testimony could be used in establishing whether the pornographic pictures were real or simulated.

That’s where Boland came in:  he’d take the government’s evidence, play around with it on his computer, and then show a judge or jury how it was impossible to determine whether the image was actual or faked.

This didn’t endear Boland to his former employer, who lamented that “Dean has gone over to the dark side.”  (That complaint has to be taken with a grain of salt, since, as I pointed out a couple of weeks back, the office still gives an award in the name of a former prosecutor who, if hiding exculpatory evidence were an Olympic event, would make Mike Phelps look like a piker.)  As it turned out, it also didn’t endear him to the Feds.

After Boland had convinced several Ohio judges to toss out cases, as well as a District Court Judge in Oklahoma, he set about prepping his testimony for the defense of Daniel Brady, an Ashtabula man charged with 50-some counts of pandering obscenity involving a minor.  He was appointed as the defense expert, and the trial court issued an order directing the prosecutor to turn over a disk of the evidence for Boland to examine.  In June of 2005, the prosecutor sent disks off to Boland and to its own expert.

A week or so later, the FBI raided Boland’s house and seized his computer, and suddenly Boland faced the prospect of being charged with possession of child pornography — namely, the disk of pictures he was supposed to examine as an expert. 

Brady’s attorney filed a motion to dismiss the charges against him, supported by an affidavit from Boland that no one in his right mind would serve as an expert at the risk of Federal prosecution.  The trial court agreed and dismissed the charges.  Last year the 11th District affirmed. 

And last week the Ohio Supreme Court unanimously reversed.  Boland’s downfall (he handled the case on appeal) was his acknowledgment in oral argument that he could have performed the necessary tests in the prosecutor’s office, although he’d asserted the contrary in his brief.  He argued that it didn’t matter, since the risk of federal prosecution was the same.  The court found a provision of the US Code — 18 USC 3509(m) – which provides that a trial court must deny a request by the defense to “copy, photograph, duplicate, or otherwise reproduce” any child pornography materials “so long as the Government makes the property or material reasonably available to the defendant.”  The statute then defines “reasonable availability” as providing “opportunity for inspection, viewing, and examination at a Government facility.”  Ergo, the court reasoned, the defense expert can look at it there without fear of being prosecuted, and that’s all that’s necessary.

Of course, that’s a crock.  Even the statute doesn’t allow the defense expert to copy the pictures, do any research on them on the Internet, or engage in any of the steps of preparation, other than viewing, necessary to prepare an effective defense.  This gives the government an immense strategic advantage, because its expert doesn’t suffer from the same constraints — if you’re wondering whether the state’s expert in Brady suffered the same fate as Boland, you should know better.  (By the way, no charges were ultimately filed against Boland.)

It’s not surprising that the court chose this route as the easiest way out of the mess.  as Justice Pfeiffer pointed out in oral argument, the logical extension of the defense argument is that it would be impossible to mount a child pornography prosecution:  no expert would ever testify for the defense under the looming threat of federal prosecution, and without an expert the defendant couldn’t get a fair trial.  There were perhaps several potential outcomes in Brady, but having the Supreme Court announce two months before an election that child pornography prosecutions in Ohio were essentially prohibited wasn’t one of them.

I spent the last week getting away from it all by living in a log cabin, which has the added benefit of allowing me to pass it off as my boyhood home in an effort to gain street cred for my forthcoming run for the presidency.  As you can see, I wasn’t exactly roughing it, but I don’t do roughing it; someone asked me if I was going camping, and I gently informed them that if God had intended me to go camping, he wouldn’t have invented flush toilets.

I’m somewhat surprised that while traipsing through the woods I didn’t bump into Tom Moyer or any of the other Supreme Court justices; the summer slowdown there continued, with decisions in a workers comp case and a criminal case – the latter of which I’ll discuss tomorrow — plus a smattering of disciplinary decisions unhappily coinciding with the announcement that the Clients’ Security Fund shelled out over a quarter of a million dollars to victims of attorney theft in the past year. 

The appellate courts were busy, though, handing down 163 decisions in the past fortnight.  So let’s get to those.  Remember, our motto at The Briefcase:  We read the cases so you don’t have to… (keep reading…)

News articles I never finished reading.  As Elton John once sang, “All the science, I don’t understand…”  I found this story somewhat reassuring:

Hurray for the European Court of Human Rights. It has rejected an emergency injunction to block the Large Hadron Collider from turning on on 10 September. It’s the latest legal case brought against the LHC by scientists who fear that the world’s largest particle accelerator will produce fearsome entities that could destroy the Earth.

We’ve all had clients who think if they don’t win their case, it will be the end of the world, but this sorta takes the cake, I guess…

Judges?  What judges?  I mentioned yesterday that the crime issue has been missing in action in the current presidential contest.  Ed Whelan over at National Review Online mentioned something the other day that I hadn’t realized:  despite the priority that many Democrats place on upcoming Supreme Court picks, neither Biden or Obama said a word about it in their speeches last week.  Whelan credited that to his belief that

Democrats have figured out that the vast center of the American electorate prefers representative government and judicial restraint, on the one hand, to government by judiciary and liberal judicial activism, on the other. 

Maybe, maybe not; surprisingly enough, although Republican speakers at their convention this week have certainly not shied away from throwing out red meat to the crowd, references to future Supreme Court picks has been equally absent. 

I think the reason for that is that Whelan is on to something, but didn’t carry it out far enough.  Each party has been successful in convincing moderates that the other party is using “code words” when they talk about Supreme Court appointments.  If independents hear Democrats talking about Supreme Court appointments, they translate it as “activist judges.”  If they hear Republicans talking about Supreme Court appointments, they translate it as “judges who will overrule Roe v. Wade.“  Both parties know that moderates don’t care much for either idea, so they don’t talk about Supreme Court appointments, even though one could make a decent argument that what appointments are made in the next four years might have more long-term impact on our country than who is elected president.

Date change.  I mentioned on Monday that I’m doing a one-hour seminar this month on US Supreme Court cases for the CCDLA.  In case you’re planning on attending, the date got moved from the 18th to the 25th, probably to find a new venue to handle the overflow crowds that are anticipated.  Maybe they’ll take a page from the Democratic convention and have it in Browns Stadium.  No doubt. 

News articles you better believe I read.  From the ABA Journal, with the alluring headline, “Sex With Client’s Mom Requires Waiver“:

It may be OK for a lawyer to have sex with a client’s mother—if the client approves the relationship in a written waiver of the conflict. But you can’t ethically have sex with the client, unless the relationship got started prior to the representation.

That is the gist of a Wisconsin Supreme Court opinion that imposed a six-month suspension on attorney Carlos Gamino, for violating each of these rules—with two different clients. Although the Waukesha lawyer denied both relationships, the court upheld a referee’s findings that Gamino had slept with one client, as well as another client’s mother. It also sanctioned him for a lack of candor with the tribunal.

I mentioned this to my daughter at dinner the other night, and her response was, “Do you need a waiver to have sex with a client’s father?”  After a minute’s more thought, she said, “What does it mean that with something that weird, the first thing I think of is the sexist angle?”

By the way, as best I can determine, there is no truth to the rumor that the waiver is popularly referred to in Wisconsin as the MILF Affidavit.

I’m on vacation next week, and I’ll be back on the 15th.  Unless that thing with the Large Hadron Collider doesn’t turn out so well.

In keeping with the spirit of the season, I thought I’d pay tribute to one of the the most prominent figures of the 1988 presidential election.  The gentlemen on your left is William R. Horton.  Back in 1974, he and a couple of other guys robbed a gas station.  After the 17-year-old attendant gave them the money, Horton stabbed him 19 times and tossed his body into a trash dumpster.  For that, he was convicted and sentenced to life imprisonment without parole.

In 1986, Horton was given a weekend furlough from prison.  The furlough system had been set up by previous Republican governors, but a Democrat, Michael Dukakis, had expanded it to those convicts serving sentences for murder.  Horton didn’t come back from the furlough, eventually turning up in Maryland, where he was arrested after raping a local woman and pistol-whipping her fiance.  Dukakis ran for president in 1988, and the “Willie Horton” ad (which you can watch here), detailing the main events and including the picture above, played a key role in his defeat.

That wasn’t the only role crime played in the election.  During one of the presidential debates, Dukakis was asked, “If your wife were raped and murdered, would you favor the death penalty for her killer?”  Dukakis’ answer (which you can see here), in which he displayed the same demeanor as if he’d been asked the name of his favorite breakfast cereal, also contributed to the argument that the Democrats were “soft” on crime.  That message wasn’t lost on the Democrats; it was the last time they would run a presidential candidate who opposed the death penalty.  Their next candidate, Bill Clinton, drove the point home by interrupting his campaigning to return to Arkansas to permit the execution of a man so profoundly retarded that he told his prison guards that he’d like to save the desert in his last meal “for later.”

That’s the dance that was largely played out after 1968, when Richard Nixon ran on a “law and order” platform, and “Impeach Earl Warren” signs dotted rural landscapes.  Even in 2000, Al Gore tried to inoculate himself on the crime issue by advocating a constitutional amendment for victim’s rights, and proposing that all parolees be tested for drugs twice a week and returned to prison if the test proved positive.

So it’s somewhat interesting that crime is virtual non-issue in this election.  The McCain campaign has been largely silent about Barack Obama’s significant role in reforming Illinois’ death penalty while a state senator.  Both candidates criticized the Supreme Court’s decision striking down the death penalty for child rapists, but the issue hasn’t been commented further since the case came down in June.  Hillary Clinton tried to get traction on the crime issue by opposing the reduction in the disparity of crack and powder cocaine sentencing laws, but that garnered virtually no attention on the campaign trail then, and none since.

To a certain extent, this reflects the fact that crime rates are substantially reduced from what they were a couple decades back, and also the realization that crime is predominantly a local and state issue.  But to a large extent, it also reflects the fact that crime is a minefield for politicians.  When we passed the milestone of having the largest prison population in the world a few months back, I can’t recall a single political figure commenting on it.  Although there is a growing realization of the need for programs helping ex-convicts make the transition from prisons back to their neighborhoods, that’s operating well below the political radar.

Whatever the causes, it’s unfortunate.  Criminal justice is one of the major issues a society must deal with.  Death penalty reform deserves a debate.  How to handle the drug problem — legalization or decriminalization of some drugs, or of simple possession — deserves a debate.  Why we have five percent of the world’s population but a quarter of its prisoners deserves a debate.

But we’re not getting one now, and I’m doubtful that we’ll ever have an honest one.

Malik Wilkinson got convicted of escape and received a four-year sentence.  He appealed, and his lawyer filed an Anders brief, saying there were no meritorious assignments of error.  Wilkinson filed his own pro se brief, and last week, the 2nd District reversed his conviction. (keep reading…)

The Magnificent Seven in Columbus have apparently been so busy decorating their Labor Day trees and doing last-minute holiday gift shopping that they haven’t had time to write any opinions this past week.  Somehow, I don’t see a surge of activity coming this next week, either.  This will be the last Update for a couple of weeks, since I’m going on vacation next Sunday, so maybe by the time I get back the court will have gotten its freak on, and I’ll have something to write about.

By that time, too, their Federal counterpart will be only a couple weeks away from starting up, so we’ll have plenty of things to discuss on that front.  Speaking of that , and in the Shameless Self-Promotion category, I’ll be doing a seminar for the Cuyahoga County Criminal Defense Lawyers Assocation on a review of the major criminal decisions in Supreme Court’s 2007 term, and a preview of upcoming cases from the next term.  The seminar will be Thursday, September 18, at 6:00 PM at John Q’s on Public Square in Cleveland.  I’ve done this sort of thing before, and people tell me it’s a toss-up as to which is the best part:  the laser light show, or my explanation of why Scalia’s opinions have to be translated from the original German.

Meanwhile, in the courts of appeals…

(keep reading…)