Lawyer in Hot Water for Photoshopping Child Porn
(CN) - An Ohio lawyer may be held liable for violating child pornography laws after he downloaded images of children from a stock photo website, and then edited them into pornography that he used when testifying as an expert witness at other child pornography trials, the 6th Circuit ruled Wednesday.
The expert witness at the center of the case is Dean Boland, of Lakewood, Ohio, a licensed attorney specializing in technology-related legal issues. He was called to testify in United States v. Shreck, an Oklahoma child pornography prosecution, in 2004 to bolster Shreck's claims that he may not necessarily have "knowingly" accessed child pornography because sophisticated computer-imaging technology has blurred the line between what is real and virtual.
In anticipation of the trial, Boland downloaded innocent-looking images of minors from the Internet and digitally manipulated the pictures to make it look like the children were engaging in sexually explicit acts. In one instance he took a photo of a 5-year-old girl eating a donut and replaced the donut with a penis; in another, he edited a 6-year-old girl's face onto another photo depicting the body of a nude woman performing sexual acts with two men. He then edited the woman's body to look like that of a young girl.
Boland used these images in the course of testifying as an expert witness in two Ohio state court criminal proceedings and presented them again during an evidentiary hearing for Shreck.
After Boland testified at the Oklahoma case, prosecutors raised the possibility that Boland may have violated federal law by creating and possessing the images. The judge in that trial disagreed, saying that Boland's photos were "prepared expressly at court order." He did admonish the witness to purge the images from his hard drive, but Boland instead used the images in at least two additional cases.
FBI agents began investigating Boland a month later, eventually seizing his several electronic files, including the images in question.
The U.S. Attorney's Office in Cleveland entered into a deferred prosecution with Boland in April 2007, and the lawyer admitted he violated a prohibition against knowing possession of child pornography. He also agreed to issue a public apology in the Cleveland Bar Journal.
But Boland still faced civil ramifications from the families of the children whose pictures were edited.
A federal judge dismissed the federal claims filed by two children who sued Boland anonymously through their parents in 2007 and opted not to rule on the state law claims. In explaining his rationale, U.S. District Judge Dan Polster noted that Ohio law provides immunity from state child pornography prosecutions for expert witness.
The children's parents appealed, asking the 6th Circuit to decide whether federal child pornography laws exempt those who violate the law in the course of providing expert testimony.
Writing for the three-judge panel, Judge Jeffrey Sutton held that there was no expert witness exemption to shield Boland's illegal activity.
Sutton went on to cite the Adam Walsh Child Protection and Safety Act of 2006, which specifies that any pornographic images of children used as evidence "shall remain in the care, custody, and control of either the government or the court," and defendants are only permitted "ample opportunity for inspection, viewing, and examination at a government facility."
"If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography," the ruling states.
Sutton rejected the claim that the images were "prepared expressly at court order," because Boland had created the images "before he stepped into the courtroom, and at no point before the hearing had the judge given him permission to create and possess new child pornography.
"All the judge said before the hearing was: 'Defendant's expert should be prepared to address [the topic of virtual pornography] with information regarding financial costs of producing virtual images, the amount of time needed to produce an image, as well as the skill level required in order to achieve results which can pass for "real" images.'"
The Oklahoma court had even told Boland that he could have found a way to demonstrate his point, on the ease of creating digital images, without actually creating child porn.
"In the last analysis, this simply is not the case Boland claims it is: that of one federal court authorizing him to do something and of another federal court punishing him for it," Sutton wrote.