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Defendant Acquitted in Child Pornography Case:
In federal district court in Minnesota, a defendant was acquitted by a jury earlier this week in a case involving child pornography charges. As often happens in such cases, the forensics was everything -- and it looks like the jury had very legitimate doubt that the defendant ever knew of (and thus ever possessed) the images. There's also a U.S. Attorney-purge angle to the story, for those that are interested. Details in the link. Hat tip: Victor Steinbok.
jimbino (mail):
Right. If this happened to me I use the 9mm solution.
5.18.2007 2:00am
mr. meade (mail):
Good job, Attorney General! Now everyone in a federal courthouse can bring politics into their defense, since there still hasn't been any rational official explanation for the firing of those attorneys. Of course, maybe all federal prosecutions are politically-motivated. With this administration, that is seeming less and less implausible.

Some right wingers will never understand "blowback," will they?
5.18.2007 7:54am
Public_Defender (mail):
I'm sure this isn't the only blowback. I wonder if AUSA's will agree if defense counsel uses "accept responsibility" the same way Gonzales does ("It's really bad, and it's my fault, but I shouldn't face any conseequences"). Also, "I don't recall" is no longer perjury even when you do really remember.

This mess should take some of the swagger out of the step of AUSA's.
5.18.2007 8:07am
Dan Weber:
Are these comments attached to the right article?

http://volokh.com/posts/1179462342.shtml is about child porn and forensics, but the comments are about Gonzales and "blowback."
5.18.2007 10:10am
Just Dropping By (mail):
Are these comments attached to the right article?

If you read the Star Tribune piece you'll see that the defense attorney suggested that the decision of the prosecutor's office to bring the case to trial notwithstanding the problems with the evidence was motivated by the desire to knock down coverage about the problems in the D. Minn. US Attorney's office
5.18.2007 10:31am
Respondent (mail):
This is why the Supreme Court needs to rethink precedent permitting State prosecution for essentially the same crime a person was acquitted for on the federal level. The fourth amendement and the fifth amendment privilege against self-incrimination have had real meaning because of the end of the silver platter rule and the ban on use of state compelled testimony in the federal courts, and vice versa. Given the lack of any real constraints on the excercise of power held to be valid under the commerce clause, the same principles that have been used to ban evasion of the search and seizure and self incrimination protections by (all of a sudden) invoking "federalism" should be extended to prevent the shennanigins of trying people for acquitted conduct and turning a blind eye in the name of "federalism". There is no way that any fair interpetation of the the fourteenth amendment would allow New York to try someone who spent a year in jail fiighting the same charges, ultimately resulting in acquittal. Even under the old "shock the concsience" test, it is hard to find anything more "shocking to the conscience".
Similarly, this case shows a need for much more rigorous enforcement of the excessive bail clause. It doesn't seem very sound constitutional theory to require (even at the state level) a jury trial for a six month prison sentence, and then allow a defendant who has a right to a presumption of innocence, a defendant charged with a non-violent crime- allow him to sit in jail for a year with no rights at all. Given his job, the defendant probably initially had enough assests to cover any resonable bail, but had to have save up his fortune in order to have finances sufficient to retain counsel as talented as the always well financed prosecution. There is simply no justification for a[n] lack of enforcement of the execessive bail clause that allowed this man who probably committed no crime to do more time than mnay thiefs and batterers.
5.18.2007 11:16am
badger (mail):

Are these comments attached to the right article?

The connection is that this new generation of "Bushie" USAs have seriously questionable priorities, more suited to preparing a candidacy for local or state office than effectively enforcing laws. I'm sure the AUSAs in Minnesota can't be thrilled about being forced to waste time and resources on thin child pornography posession cases insead of pursuing actual child predators or child pornography producers all so USA Paulose can prepare for her State AG run. This is the same office where one of the Deputy AUSAs took a voluntary demotion after Paulose ordered him to tell DOJ brass that he'd completely erradicated the Latin Kings from Minneapolis.
5.18.2007 11:27am
Dan Weber:
Sorry about missing the context; I guess I was just excited by the forensics discussion. :)
5.18.2007 12:22pm
Davy Jones (mail):
Having sat through a child porn trial in Texas (as an attorney, not a defendant), I was under the impression that it would be impossible for a Defendant to be acquitted if the evidence showed that he actually possessed the porn, regardless of his actual culpability. Even during jury voir dire, the potential jurors appeared to have only one of two reactions: (a) out for blood; or (b) so disgusted they would say anything to get out of jury duty.

I guess there might really be something to that whole red state v. blue state thing after all. The Minnesota jury seemed particularly open minded. That's refreshing.
5.18.2007 12:24pm
Richard Aubrey (mail):
In one of Andrew Vachss' novels, his character advertises child s&m porn, keeps the money and turns the addresses over to the cops. Little sideline there.

That's old technology.

Can stuff, including but not limited to child porn be inserted onto somebody's computer w/o the owner's knowledge? If so, can the result be distinguished from files actively sought?

Damn.
5.18.2007 3:34pm
mr. meade (mail):

Can stuff, including but not limited to child porn be inserted onto somebody's computer w/o the owner's knowledge? If so, can the result be distinguished from files actively sought?


If the child porn-loving computer geeks were to send their favorite government agents a heaping load of deeply-encoded virus smut, notify the media, then sit back and laugh, they'd probably be able to ruin quite a few lives and careers. I'm betting that they could do it quite easily, since big governmental computer networks are more likely to not be up to date than most people's personal computers.
5.18.2007 4:33pm
Richard Aubrey (mail):
mr. meade.
Given the attraction some parentsbasementdwellers have for screwing up the rest of us, giggling at their anonymous potency, when they make up viruses, I could see some serious stuff happening to people who didn't have a clue.
Principal/coach/teacher/cop/clergyman you don't like?
The goodlooking, honor student, socially adept all-conference linebacker homecoming king senior everybody hates....
Political opponent.
Jeez, Mr. Meade. I hope it's a lot tougher than you assume.
Well, if I am ever on a jury for that kind of a case, I'd be inclined to think there could be something to the "I had no idea." defense.
5.18.2007 4:54pm
Peter Young (mail):
Can stuff, including but not limited to child porn be inserted onto somebody's computer w/o the owner's knowledge? If so, can the result be distinguished from files actively sought?

Have any of you been following the antics at the Santa Barbara News Press? A once great small city newspaper--it won the Publitzer in the Sixties for its expose of the John Birch Society--fell into the hands of a woman who has alienated a quite distinguished editorial staff because of her interference in editorial matters, and much of that staff has resigned. The remaining staff voted to unionize and the owner has refused to recognize the union and has fired people active in the union election as well as others who have protested her editorial interference.

In the latest episode, the owner had the newspaper run a front-page story saying that the paper was suing to get return from the police for testing of a computer on which massive amounts of child porn was found and which had belonged to the the first editor to resign, who has become a leader of the anti-owner forces. The computer was apparently a used computer to begin with and had been handed down from one editor to the next. The former editor who resigned in protest of the owner's policies denied any knowledge of the child porn and apparently passed a polygraph test on that. The police have confirmed they have no evidfence that he knew it was there. The former editor is considering a defamation suit against the owner and her newspaper.
5.18.2007 9:00pm
mr. meade (mail):
Here's another scenario: saboteur has a flash drive (a keychain-sized storage device, for those not in the know,) the target leaves his/her desk for two minutes, and later, there's porn everywhere, so there's an opening at the company.

Scarier scenario: it's child porn, so the victim is out a job and faces bigtime prosecution.

Even scarier scenario: it happens in Arizona, where the mandatory sentence is ten years per infraction, run one after the other.
5.18.2007 10:57pm
Malvolio:
Can stuff, including but not limited to child porn be inserted onto somebody's computer w/o the owner's knowledge? If so, can the result be distinguished from files actively sought?
Are you kidding? If you put the following HTML on your MySpace page or whatever, everyone who visits that page will have child pornography silently loaded on to his computer's browser cache.

<img style="display:none;" src="http://tinyurl.com/24yrj7"/>

Almost no way to prove that that was what happened.
5.19.2007 1:56am
Defendant (mail):
I am the defendant in this case. I'm glad Prof. Kerr has posted article about my case. As my attorney noted, the way government prosecutes child pornography cases has become a "modern day witch hunt." In the closing arguments, prosecution strongly suggested that because I was a computer expert, I should have known that by using the internet, I was going to end up with child porn in the computer. The government expert testified that there was no evidence any of the alleged child porn files were ever opened and viewed. So we decided not to call our own expert witness to say the same thing.

My attorney, Mr. Daniel Gerdts, did an excellent job of selecting the right jury and arguing common sense should rule in this case, instead of sexual disgust.

There are a lot of other cases, in which prosecution should never have been proceeded, such as the expert witness of State of Ohio v. Brady, 2007 WL 1113969 (Ohio App. 11 Dist.). After the Ohio state judge ordered a copy of hard drive be handed over to the defense expert, Feds charged the expert with possession of child pornography.

Now that I have been acquitted, I would like to try to do something to bring these types of overzealous prosecutions to light.
5.19.2007 12:57pm
Defendant (mail):
Sorry, incomplete email address in the above post.
5.19.2007 12:59pm
Kazinski:
NF,
I'm certainly glad you got off, and as a computer programmer I can attest that it would certainly be possible to write a macro to search for titles with certain keywords. But I'm not going to fault the prosecutor here too heavily, after all they didn't plant the evidence on your computer, it was there.

As to whether it is possible to plant child pornography on someones computer unknowingly here is an article about using trojans to plant child porn. It is pretty scary, but with proper browser and firewall settings, and safe downloading practices, I think the risk is pretty minimal.
5.19.2007 5:11pm