Ventures on the "dark side"
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.