Lawyers: New law makes child-porn defense tougher

Detective Lusi Rivera of the Technical Judicial Police, Panama, works in the FBI's Innocent Images National Initiative office.
Detective Lusi Rivera of the Technical Judicial Police, Panama, works in the FBI's Innocent Images National Initiative office. Chuck Kennedy / MCT

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.