The Plea – Chapter Twelve

New year, new direction, same goal.  I’ll be returning to school in the spring to study criminal law.  I will continue to write books about women of the Old West, in fact I’m contracted to write ten more books on the subject between 2014 and 2019.  In addition to school and working as a writer I’ll be taking on a job with a law firm that specializes in helping individuals falsely accused of child molestation and wrongly accused of possessing child pornography.  I believe in this cause and am committed to aiding the falsely accused.

According to a report from the Department of Justice on this subject, the incidents of false accusation will escalate over the next twenty years.  We live in a society that is increasingly insecure and paranoid about pedophilia, rape and abuse. Virgin Airlines won’t allow a man to sit next to a child who is traveling alone. Men are given funny looks in playgrounds. Mothers are reported to social workers when they give their screaming kids a slap in public.  Thousands upon thousands of false allegation of sexually molestation demonstrates the danger that comes from that hysteria and reminds us all that children, for whatever reason, do not always tell the truth.

The consequences of false accusations are brutal and there must be a mechanism in place to help those individuals.  Many say that to think that children would make up such a lie is unrealistic, but I don’t agree.  I only have to look on my own front doorstep to see exactly the same sort of behavior, often far, far more intense.  I receive emails on a daily basis from individuals going through the nightmare and seeking help.  This one is from a woman in Idaho.  “God bless you.  I am feeling so incredibly blessed right now for your prayers & what they, and you, are giving us!  Thank you so very much, Chris !!!  The doors you have opened with just this, at this moment, I cannot even begin to tell you!  I gave my friend the information you provided in The Plea, as well as your story, AND your website, and you won’t believe what the past 36 hours has produced…or, maybe you will. We have a very long and difficult road ahead, but, finding a “first step” in how to begin this journey has been epic for us.  However, I must take a moment now and tell you personally, how deeply touched I feel upon reading about The Plea and how it came to be.”

False allegations of child molestation and wrongful accusations of possessing child pornography happen every day. But for one careless or cruel comment, it could happen to me – or you.

The following is information everyone needs to know about wrongful accusations of possessing child pornography.

A discovery issue that arises regularly in Internet pornography cases relates to the existence of thumbs.db files.  A thumbs.db file is a hidden file that is automatically created when images are downloaded to a computer.

 When a computer user downloads images, most computer operating systems automatically create a database of tiny replicas of the images called a thumb.db file (thumbnail database).  Even if the downloaded images are deleted, the thumb.db file remains on your system.  If there were 500 images in a folder, the thumbs.db file for that folder contains 500 little replicas of those images.  If the thumb.db file is located-it is not difficult for a law enforcement computer expert to find-it can be opened, and all those little images can be viewed.  Even if the computer user knows about the thumbs.db file and deletes it, it may be recoverable from unallocated space by the law enforcement computer expert.

Most computer users will not even know that thumbs.db files exist on their computers much less what replicas of images they contain.  Even if an individual were to access a thumbs.db file, the images contained therein are of little value: the images are so small and have such poor resolution that it may be difficult to determine whether the image is of a child or an adult.

Without expert guidance, you may not know that images you allegedly possessed on your computer were found by law enforcement in a thumbs.db file.  If this is true, it will be vital for you to prove this to the fact-finder, either at trial or for mitigation at sentencing.  This may be particularly valuable in a case where more than one person had access to a computer.  If so, you may have a credible argument that someone else downloaded images and transferred them off the computer that your client had no knowledge of the thumbnail.db file that was left on the system.

Explaining the nature of thumbnail.db file may help a jury understand why the number of images found on a system may not be as significant as the prosecution claims it to be.  An uninformed fact-finder may find it hard to believe that someone could have hundreds or thousands of images of naked children on his system without knowing it.

A defense attorney, through a computer expert, can explain that these images were minute replicas of images automatically created at some time in the past by the computer operating system and stored in a hidden file.

To illustrate the insidious nature of thumbs.db files, a computer expert may point to the numerous instruction manuals specifically designed to help computer users locate and remove thumb.db files to free up storage space.  Experts can also explain to the fact-finder how thumbs.db files can be recovered from thumbs.db files for viewing by the fact-finder.  These images may be graphic and show obvious depictions of children engaged in prohibited sexual acts.  You need your expert to explain what the fact-finder is seeing is not what your client saw.  At worst, what your client saw was a poor-quality image the size of a postage stamp.  An 8-inch by 10-inch exhibit is approximately eighty times larger than what your client saw on his monitor.

Thumbs.db files may also be important in cases where the actual age of the children is at issue.  The poor viewing quality and small size of these images may make it difficult for the prosecution to prove that a particular person depicted in a particular photograph is under the age of eighteen.

Unintentional downloads are another topic that may require the assistance of an expert.  Most computer users are not aware that images are regularly downloaded onto their computers without their knowledge.  If you pull up a website and click to download an image on the page, you probably have downloaded dozens of other images that appear on that page or even on linked pages.  These other images may not appear in you “My Pictures” folder, but they are somewhere on your system.

In the world of online pornography, this is a persistent and confounding issue.  Users may go to on legitimate site, view an image, and click on it to enlarge it or download it.  That action pulls the user to another web page, where dozens more images appear.  Further navigating on that page and the requisite clicking on images will take the user to yet another and another website.  AS the user wanders from page to page, he may unintentionally and unknowingly collect image after image on his system.  This may result in the user having images of questionable legality on his system and having such a large number of images (legal or otherwise) on his system to make accident or mistake seem implausible.

It’s best to go into court with a computer expert who can demonstrate to the court clicking on a popular news site and intentionally download a particular image.  The expert can then chart how many other images were downloaded to his system without his knowledge or consent.  Before the jury, the expert will be able to explain how clicking on one item leads to the downloading of many others, all without his knowledge or consent.  It will drive home how easy it is to accidentally download illegal images while in the pursuit of legal material.

According to The Adam Walsh Child Protection and Safety Act, defendants have mandated by law to have access to the images the prosecution says was in their possession.  The Act specifically states “Property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility.”  The Government will not do this unless the defendant asks for this right.

Once an image is determined beyond a reasonable doubt to be contraband, the next step is to determine how the image got onto the evidence drive.  With the modern technologies of today and wireless Internet available in many places, including your local coffee shop, it is not enough to say that the person is in knowing possession of the image because the image exists on a computer.  There are people who “side jack,” using a wireless Internet portal belonging to someone else without their knowledge, and install hack tools onto those computers – allowing them to use a computer not physically in their possession for the purpose of storing contraband images.  With the use of peer-to-peer programs, such as LimeWire or Google Hello, contraband traders can trade these images with each other and even transfer a prohibited image onto a computer’s hard drive without the owner ever knowing it was stored there.

It is a basic precept of criminal law that the state must prove an individual’s knowledge or intent of possession.

As for collecting the computer and related materials, you need to determine whether the police effectively shut the system down, searched any part of the system prior to the shutdown and/or warrant, and whether they shut the computer down or just disconnected the power.  Learn whether officers photographed and marked all items of the computer, including cables, keyboard, hard drives, and all recording media.  All of these questions need to be resolved to determine whether the evidence was properly preserved.

One of the most important steps in establishing a chain of custody is validation of the BIOS clock.  BIOS (basic input output system) is the set of routines the computer’s operating system goes through to accurately run the hardware.  At startup, the BIOS tests the operating system and prepares the computer for operation.  The BIOS clock is the computer’s internal clock that establishes when information was obtained and modified by the computer.  If the officers fail to preserve and validate the BIOS clock, it will be impossible for law enforcement to establish the actual date and time information was transmitted.  Their failure to validate the BIOS clock leaves open several potential defenses, including third-party access to the computer and alibi.  Any indictment must specify the date and time of the crime.  If the internal clock cannot be verified, the government will have issues establishing when the crime occurred.  The government’s inability to validate the clock was properly activated and working will allow you to argue statute of limitations or allow you to create an alibi arguing you were not at home/work when the material was downloaded.

The initial search was so one-sided that the results do not accurately reflect the contents of the computer.  That there may be one hundred images of contraband on the computer does not mean that was the client’s intent – especially if you can show that the actual amount of adult pornography was thousands of images.

Do not let the officer’s opinion of the content on the computer sway you from discovering your own opinion.

Please don’t take anything for granted.  DON’T TAKE WHAT A LAWYER TELLS YOU AS AN ABSOLUTE.  Research the subject for yourself.  Hire your own expert.  Ask questions.  If I had done all that I’ve listed above perhaps my brother’s life might have been saved.

But for one careless or cruel comment, it could happen to me – or you.

My brother was a good man who served his country well.

My brother was a good man who served his country well.