Posts Tagged ‘Defendant’
For the past two days I have been in court in Boone County, MO. Tonight on 04/10/2012 I got out of court around 10:30 PM. I was there with one of my Technical Consultants on a very interesting case. I want to discuss this case a little here on this blog.
First of all; before I post about this case I think that there are some really outstanding people who need to be acknowledged. The Boone County Sheriff’s Department’s Cyber Crimes Task Force deserves a lot of recognition. My company has worked cases involving several Internet Crimes Units in Law Enforcement; and this team is by far the very best in the state of Missouri. Andy Anderson, Scott Richardson, Mark Sullivan, and Tracy Perkins are simply phenomenal Investigators that are highly skilled, well-organized, and impressively knowledgeable about their work. These Detectives are an example of what Law Enforcement should be. These Detectives make sacrifices that most people could not begin to comprehend, everyday! They see things that are beyond heart breaking, and somehow manage to keep their humanity and integrity intact; indeed they are very special people. They are incredible people who we should all be grateful to. These wonderful people are keeping our children safe in Boone County and the surrounding areas, and doing a most impressive job of it! They are honest, decent people that I am proud to have working as Law Enforcement in the county that I live in. We owe them a tremendous debt!
When I post about the types of cases that RMRI, Inc. often finds itself working, I have a policy that I never mention the name of the defendant on my blog. So, here in this blog entry we will simply call the person that was charged in this case “The Defendant”.
In the case that I am posting about tonight a person was charged with Possession of Child Pornography and Promoting Child Pornography, two very serious felonies that have a potential of sending the defendant to prison for thirty years if convicted of these two crimes. This person was a young college student when they were charged with these offenses. A college student doing what most college students did back when Limewire was a functioning piece of software. This person was downloading music and videos, and was curious about what they could get from Limewire. As you can imagine, as a college student this person’s curiosity was vast and even extended into wanting to view some adult content material. In the process of downloading files from Limewire this person also downloaded three files that can only be termed as “illegal content”. These three files are what constituted the charges that were filed against this person.
When the defendant in this case had their computer seized and had a computer forensics examination performed on their computer, there were literally hundreds for music and video files on the computer and three clearly identifiable illegal files on their computer. Due to these findings, the defendant was charged with Possession of Child Pornography for having the files on their computer and Promotion of Child Pornography for having these files in a shared folder on their computer.
Now there is no doubt that the defendant downloaded these files, there is no doubt that the defendant possessed these files, there is no doubt that these files resided on the defendant’s computer in a shared folder. These facts were well established by the The Boone County Sheriff’s Department’s Cyber Crimes Task Force . And I will say this, if that were all that it would take to be guilty of these crimes, then the defendant would be guilty. However, these cases are far more complex than this. In almost every crime there is an element of intent, except in a few crimes which are called “Strict Liability Crimes”. In these intent based crimes the Prosecution has to show that the Defendant knowingly intended to commit the crime. In this case that means the Prosecution has to prove that the Defendant intended to download thee files for the purpose of deriving some sort of sexual satisfaction by viewing these files.
In this case Tracy Perkins and Scott Richardson gave testimony as to their factual findings in this case. Both of these Detectives should be commended for giving honest, factual testimony with no embellishment whatsoever. I have come to expect that high level of integrity and honesty from the Detectives at The Boone County Sheriff’s Department’s Cyber Crimes Task Force .
Attorneys George Batek and Kathryn Benson questioned these Detectives on cross-examination thoroughly and these Detectives just relayed the facts of their case honestly and with no embellishment. George Batek and Kathryn Benson are two SUPER Attorneys too, they did not miss a beat in this case. George and Kathryn are simply two of the hardest working attorneys that I have ever met!
George Batek and Kathryn Benson contracted with RMRI, Inc. to aid them on the technical aspects of this case about forty-five days ago. I chose to bring Steve Turner in on this case due to his extremely extensive knowledge of computers, the Internet, and working with people from novice computer users to advanced computer users in instructing them on how to properly use their computers and maintain their computers for over twenty years. Steve Turner was able to quickly develop a profile on the level of sophistication that the defendant possessed with regard to computers and the Internet-based on how the defendant used their computer. Steve Turner was able to demonstrate that the defendant was only a novice computer user and easily made some mistakes on setting their computer up and maintaining the software on their computer. Steve Turner gave Expert Witness testimony on exactly how the defendant managed to get the three files in question, and how it was entirely possible that the defendant mistakenly downloaded these files due to making some mistakes that only a novice computer user would make. Steve Turner is simply a phenomenal person with an impressive amount of experience and knowledge when it comes to working with computers, servers, the Internet, mobile devices, and telecommunications devices.
It is first necessary to say that The Boone County Sheriff’s Department’s Cyber Crimes Task Force did nothing wrong or incorrect. Their methodologies are sound, they are thorough, and they have a very impressive knowledge of Digital Forensics and Digital Evidence issues. Their work was never at anytime in question. The question simply came down to this: Was a Jury ready to send a young adult to prison for a long time and negatively impact their life for a long time over what may have very well been a simple mistake made by a novice computer user? And this Jury had the humanity and the wisdom to refuse to do so and to return a verdict of Not Guilty on both charges.
I have to admit that when the verdict was read I made a “whooping sound” that I felt quickly ashamed of afterwards, but this was because I really had some reservations about the wisdom of the Prosecution in charging this young person with these very serious crimes over what even looks like on its face to be a completely unintentional. I know that the Prosecutor was doing her job. And I am grateful that she too is a very tough lady with zero tolerance for these types of crimes. I have just never been sure in this case if it was wise to charge a young person with such terrible crimes. I mean, I have a hard time understanding the benefit to society in negatively impacting someone’s life with these types of charges for over what even on its face looks to be an honest mistake. But, I will concede that this Prosecutor is smarter than I am about these matters, and she has a level of understanding about the law that far exceeds my understanding of the law.
Despite my reservations about this young person being charged with these crimes; I was happy to be a part of this case. I was surrounded by really good and decent people on this case; two SUPER Defense Attorneys, four WONDERFUL Detectives that are just consummate Professionals at what they do, one of my Technical Consultants that I have become so proud to call a friend, a colleague, and a work associate, and a really nice, family that bound together with love for one another and showed that through their support of their family member, the defendant! In my mind, this was not a “win or lose case”; this was a case that restores one’s faith in people, in Law Enforcement, in the Family Unit and there is simply no better feeling than that!
Back in the last part of 2011 RMRI, Inc. was called upon to review a case in Camdenton, MO. The case involved a young man who had three illegal files on his computer. The state of Missouri Family Services Division has what is known as a “Stat Team”; this is the team of Investigators that conduct technical investigations for the Division of Family Services. The “Stat Team” conducts Computer Forensics Examinations in cases where they might have a complaint of sexual abuse in the family home. If the “Stat Team” finds illegal content on the computer that the Investigator is examining the Investigator that did the examination can refer this case for prosecution.
In the case that RMRI, Inc. was contacted about the Missouri “Stat Team” found three images on the defendant’s computer of an illegal nature. Often times RMRI, Inc. will be called in by the defense attorney to consult on these types of cases. Because these specific types of cases are so technical due to the very nature of these cases often the Defense Attorney wants to call on an expert to explain exactly what occurred on the defendant’s computer that resulted in these charges, to interpret the evidence since it will usually consist of a good deal of technical jargon, and to see if the Investigator made any statements that might indicate that he or she did not correctly interpret their evidence. RMRI, Inc. has some of the best expert witnesses in the state of Missouri for cases involving almost all manners of digital evidence. RMRI, Inc. has a “Technical Team” of two experts that have a combined fifty years of experience in working with everything from software development and programming, source code analysis, virus and malware defense and protection, computer repair, file recovery, software development, computer security consulting, and forensic acquisition techniques.
When RMRI, Inc. is first called in to consult on a case of this nature the first thing that we want to do is see all of the discovery on these cases. We want to see the report from the Investigator that did the forensic analysis of the computer in question, we want to see any deposition material where the Investigators were deposed by the defense attorney, we want to see any interviews conducted with the defendant, and anything else that the prosecution has provided that will give us an accurate picture of what happened to cause the defendant to be charged. RMRI, Inc. also wants to be present for any testimony that the Investigator that worked this type of case gives.
In the present case that we are discussing here, the testimony of the Investigator that conducted the computer forensics examination on the defendant’s computer gave us great pause as to whether this Investigator correctly interpreted the evidence that he found on the defendant’s computer. In this case the Investigator believed that the defendant downloaded three illegal files to their computer for viewing. The reality of the case is that the defendant never even knew that these files resided on their computer. These files were simply thumbnails that were residing in the temporary file section of the defendant’s computer and were put their as a result of the defendant looking at a website, but NOT even knowing that this website would place these thumbnail images on their computer as a result of viewing this website. Through careful and methodical research RMRI, Inc. was able to not only come to understand what had occurred on the defendant’s computer but was also prepared to prove what happened on the defendant’s computer.
The main figure in this case that was actually able to get this case dismissed at deposition without it ever seeing a trial was the attorney. The attorney is Deirdre O’Donnell of Phillips, McElyea, Carpenter, & Welch, P.C. who was one of the sharpest and most intelligent attorneys that I have ever worked with. Deirdre grasped the issues that we found very quickly, she understood our explanation of what occurred in this case, and she clearly understood what questions needed to be asked of the Investigator for the state of Missouri. Below are the contact details for Deirdre O’Donnell:
Firm: Phillips, McElyea, Carpenter, & Welch, P.C.
Phone Number: (573) 346-7231
Address: 85 Court Circle N.W., Camdenton, MO. 65020
After RMRI, Inc. heard the State’s Investigator testify, analyzed the discovery evidence, and then worked with Deirdre a little on going over what had occurred on the defendant’s computer, Deirdre decided to depose the State’s Investigator. RMRI, Inc. worked with Deirdre on some of the more technical questions that she would ask the State’s Investigator during deposition, and Deirdre already had a comprehensive understanding of the issues that we wanted to find out more about in deposition, but RMRI, Inc.’s Technical Expert wanted to make sure that Deirdre was armed with all of the questions necessary to give us a complete understanding of what lead the State’s Investigator to apply for charges against the defendant in this case.
Deirdre O’Donnell spent countless hours preparing for this deposition, and she went into the deposition and started asking key questions of the State’s Investigator as to what he believed happened on the defendant’s computer, and why he believed as he did. The State’s Investigator had enough integrity and honor to admit shortly into the deposition that he did not have a complete understanding of how to conduct a forensic examination at the time of his testimony because he had only had the basic computer forensics course at that time; since his testimony he had taken an intermediary computer forensics course and has come to understand that some of what he testified to may not have been completely accurate. At this point in time the Prosecuting Attorney “nollied” (dismissed) the case against the defendant. The State’s Investigator and the Prosecuting Attorney showed a tremendous amount of integrity and honor once they came to an accurate understanding of what had occurred in this case.
Deirdre O’Donnell fought intelligently and passionately for her client. Deirdre worked this case in the most effective way possible and achieved the best possible outcome on this case. It takes a lot of work to convince a Prosecutor that he or she should drop charges and not proceed to trial. The Defense Attorney has to be able to clearly convince the Prosecutor that a crime was not committed; and Deirdre did that perfectly! God forbid, but if I ever have legal problem in the Camdenton, MO. area the ONLY attorney I would hire in that part of Missouri would be Deirdre O’Donnell!
Often times I am asked if it bothers me that “I help to put criminals back on the street”? I get asked this questions in various forms, sometimes “harshly”, sometimes in intelligent debate and/or conversation. I understand that this question is usually a “non-malicious question”; yet I can’t seem to get over the implications that this question makes about the person asking it….
First; let us consider this question: “does it bother you that you help put criminals back on the street”? When you consider this question carefully you can only assume that the person asking this question believes that the defendant in a criminal case is guilty before he or she has ever had their day in court. The logic of this question is that if I work a case as a Criminal Defense Investigator; for a Defendant that is accused of a crime, I am assisting a guilty person in trying to get away with this crime. So; when you think about the person asking the question, you begin to see a person that does not seem to believe in the presumption of innocence, the concept of “innocent until proven guilty”, and the practice of giving a person accused of a crime due process. Of course that person’s views would change considerably if that person was charged with a crime. The correct philosophy in our current Judicial system is that a person accused and charged with a crime is completely innocent of said crime until they are convicted in a court of law; or at least that is supposed to be the way criminals cases are viewed by our current Judicial System…….. Yes; the questions we ask can often tell much about us….
Second; I think it is important to get into the process of Justice. Our Justice System is designed to be adversarial; the Prosecution and the Defense are adversaries in criminal cases. Both sides are supposed to work hard to prove their opposing theories in a criminal case. Both sides will use various tools that are at their disposal; Investigators, Expert Witnesses, Technology, etc., etc. in trying to prove their case. The hopes are that through this adversarial process, and the hard work that both sides have to do in this adversarial process, the truth will come out; and justice can be served.
Third; I think it is important to define the role of the Criminal Defense Investigator. In a criminal case the Criminal Defense Investigator first and foremost must remain dispassionate, and emotionally detached from the case; no good can come from a biased Investigator in a criminal case. It is important to remember that the quest is for truth and justice, not for a “win”. The Criminal Defense Investigator will assist the Defense Attorney in building his or her case by gathering evidence that will allow the Defense Attorney to accurately assess and evaluate their case. The Criminal Defense Investigator knows that he or she is simply a “tool” that the Defense Attorney has chosen to use in a very delicate process, with very serious consequences. So, it is imperative for the Criminal Defense Investigator to be dispassionate, emotionally detached, and yet also able take his or her job VERY seriously.
Having made these three points, I want to answer the question we are confronting here very bluntly. “Does it bother you that you help put criminals back on the street”? My answer is a resounding NO! Because in a criminal case without a fair process, where the rules and protocols are not strictly adhered to; there is no justice. Even if one guilty man goes free due to poor, inadequate, or dishonest work on behalf of the Prosecution it is the lesser of two evils when you consider that the alternative threatens the very fabric of a fair and impartial Justice System (the term “Prosecution” in this article includes the Investigators, Expert Witnesses, and anyone else working on the side of the Prosecution). The long term effect of the adversarial system used in our current Judicial System is that everybody gets better at their jobs; good Defense Attorneys challenge Prosecutors to be better and vise versa; good Criminal Defense Investigators challenge Law Enforcement Investigators to be better Investigators and vise versa. I should also mention that I believe it is better to let one hundred guilty people go free than it is to imprison just one innocent man. We can always bring a person to court, but we can never get the years back that an innocent person spends in prison.