How is Bentley planning to get around that provision in his plea agreement? The answer to that is not clear (although Zeigler has ideas), but the language in the deal Bentley struck with prosecutors is more broad than most Alabamians probably remember. Here is how al.comreported the key terms in an article dated April 10, 2017:
Bentley, as part of the deal, was expected to:
* Resign immediately and leave public life.
* Plead guilty to two campaign violations: converting campaign contributions for personal gain and failing to report campaign contributions.
* Serve one year of probation.
*Perform 100 hours of unpaid community service as a physician.
*Repay the $8,912 his campaign spent on the legal fees of former aide Rebekah Mason, whose involvement with Bentley led to the charges against him.
*Forfeit all the money in his campaign account, which is currently $36,912. The money will go into state coffers.
In response, the state attorney general's office will not pursue other felonies against Bentley, including those referred for prosecution last week by the Alabama Ethics Commission.
Bentley might already have violated the first provision -- the one about leaving public life -- by attending the National Governors Association meeting last weekend in Washington, D.C. From a report at al.com:
Bentley tweeted out a photo showing him at the meeting with his “governor colleagues, former and current.”
“Looking forward to working with them and (the National Governors Association) as states tackle tough issues facing our country in trade, (criminal justice) reform, healthcare and jobs,” he tweeted. Those attending the meeting heard from President Trump, Vice President Mike Pence, Cabinet secretaries and representatives from foreign countries.
Sounds like Bentley already has returned to public life, doesn't it? Is the Alabama Attorney General's Office supposed to enforce the "Luv Guv's" plea agreement? If so, are Steve Marshall and Co. asleep at the switch?
Al.com reported last August that Bentley was considering a return to politics, perhaps in a U.S. Senate run against Democrat Doug Jones. Reporter Leada Gore even noted the roadblock in Bentley's way:
Former Governor Robert Bentley, who resigned in 2017 as part of plea deal related to ethics and campaign finance violations, isn't ruling out a return to public life.
In an interview with political site Yellowhammer, Bentley was asked if would consider returning to public office, possibly in the U.S. Senate race against Democrat Doug Jones in 2020.
Bentley responded:
"I love serving the people of this state. Serving as governor was the greatest honor of my life. I have a heart for our people and I believe we are all called to serve one another in some capacity. I found public service was a way to do that. I believe what is missing in public service today is loving the people that you serve and wanting to help those who need help, especially those who are less fortunate and really have nothing. If God shows me a new avenue where I can do that, I'll do it."
The deal that led to Bentley's exit might make that impossible, however. In his plea with the Alabama Attorney General's Office, Bentley agreed to "not seek or serve in any public office."
Does Bentley plan to ignore the terms of his plea agreement? Well, he is shameless enough to have traveled to D.C. with a cozy companion, Rebekah Caldwell Mason, with whom he has shared all kinds of intimacies -- involving her boobs, nether regions,and perhaps "other parts." From Jim Zeigler's Facebook post yesterday -- under the headline "Bentley takes Rebecca Mason to Washington as he lines up support for U.S. Senate run." (Zeigler, by the way, also is considered a possible U.S. Senate candidate in 2020.):
She was Gov. Robert Bentley's senior policy adviser and believed to be the 'acting governor' in decision making. Now, she is the manager of Dr. Bentley's dermatological clinic in Tuscaloosa.
But last weekend, Mrs. Rebecca Mason was the ex-governor's escort to Washington. As an ex-governor, Bentley was invited to a national governor's conference. And the two of them went.
Jim Zeigler
But is Mason also assisting Bentley as he gets ready to run for the U.S. Senate in 2020, seeking to be the Republican nominee against Democrat Sen. Doug Jones?
Many of the nation's governors were in Washington for the conference and breakfast with President Donald Trump. Bentley used the conference to go and line up national support for an expected run for the U.S. Senate next year.
The issue of Bentley's seedy behavior while serving as governor likely hits close to home for Zeigler, in part because he filed the initial ethics complaint that led to Bentley's exit.
Zeigler also provides a possible explanation for how Bentley might skate around the terms of his plea agreement:
Bentley resigned as governor in 2017 and pleaded guilty to misdemeanor violations. He signed a plea agreement that stated he would not run for pubic office again. In January Bentley obtained clearance from the prosecutor to run for a federal office even though his plea agreement stated he would not run for office. The U.S. Senate is a federal office.
State Auditor JIm Zeigler, who had filed the initial ethics complaint that led to Bentley's departure, said: "It is unbelievable that Bentley is doing this. Bentley was a problem for Alabama as governor, and he would be a continuing problem as U.S. Senator. While I do not believe Bentley can be elected, there are still some Alabama voters who think Bentley was a good governor that got a raw deal.. I was there, and neither of those things are true. He was not a good governor, and he got off easy."
Bentley served no jail time.
Zeigler has formed an exploratory committee eyeing his own possible run in 2020 for the seat now held by Democrat Sen. Doug Jones. The deadline to file candidacy is this November and the primary is March 3, 2020.
A Republican political hoaxwe -- who created false online narratives about Robert Mueller, Ruth Bader Ginsburg, and Kamala Harris -- was banned from Twitter yesterday after bragging about his plans to create more deceptive content.
Wohl, an ardent Trump supporter, first came to our attention last November when he was found to have created false online posts that Robert Mueller was the target of sexual-harassment allegations. The FBI reportedly is investigating that episode. Alabama political insider Jill Simpson said at the time that Wohl was connected to Akbar and his National Bloggers Club. As usual, Simpson proved to be right -- Wohl is aligned with Akbar, and we will have more on that shortly.
USA Today quoted one legal expert who says Wohl is playing a dangerous game by publishing admittedly false narratives designed to affect political outcomes:
Stanford Law School professor Robert Weisberg said Wohl’s actions could be construed by a federal prosecutor as wire fraud, obstruction of justice or conspiracy – or as possibly violating various state statutes – but likely fell into a legal “gray zone.”
Ali Akbar mugshots
“The whole thing smacks of illegality and nefariousness and deception, but it still needs to have an anchor in criminal statute,” Weisberg said.
Twitter announced that it is permanently suspending Jacob Wohl, a 21-year-old Internet hoaxer and supporter of President Donald Trump, following the publication of a USA TODAY article in which he boasted of using the social media platform to spread lies and disinformation.
In the article published Tuesday morning, Wohl disclosed what he claimed were his plans to create “enormous left-wing properties,” including Facebook and Twitter accounts, before the 2020 presidential election in order “to steer the left-wing votes in the primaries to what we feel are weaker candidates compared with Trump.”
Throughout the day, Twitter users had messaged the platform's CEO, Jack Dorsey, demanding that the company take action against Wohl.
In announcing the suspension Tuesday afternoon, Twitter said in a statement: “The account was suspended for multiple violations of the Twitter Rules, specifically creating and operating fake accounts.”
Is Wohl a tad reckless, even dim? Consider this from USA Today:
According to Twitter, after Wohl bragged of his intentions to violate its rules against the creation of fake or misleading accounts, the company scrutinized his activity on the platform and found he already created multiple fake accounts.
Ali Akbar at Grindr
Wohl said when reached by USA TODAY that he had never created a false or misleading account. "I've had accounts for my businesses and my future think tank, but that's about it," Wohl said, confirming that all of those accounts had been "nuked" Tuesday afternoon. "I've not created fake accounts or bot armies or anything like that."
When asked the name of the "future think tank," Wohl declined to provide it, saying he planned to use it in a "clandestine manner."
Among accounts that were suspended was that of Surefire Intelligence, Wohl's operation that played a central role in his scheme to disgrace Special Counsel Robert Mueller in the days before the midterm elections.
Former Trump attorney general Jeff Sessions provided more evidence over the weekend that his mental faculties are eroding. Meanwhile, a candidate for Sessions' old U.S. Senate seat sounds like his brain wattage is not so hot, either.
Sessions said that he was very proud of what he accomplished while he was Attorney General.
“No cabinet department did more to advance the Trump agenda than the Justice Department,” Sessions said. Sessions said that he worked to make the DOJ less political. “It was time to end the politicization of the Department of Justice.”
Let's break that down into two parts:
(1) Sessions says the Department of Justice (DOJ), on his watch, did more to advance the Trump agenda than any other cabinet department -- even though long-standing rules hold the DOJ is to operate independently of the White House.
(2) Sessions claims he made the DOJ less political.
Statement No. 2 came mere seconds after Sessions admitted having worked to advance a political agenda in the nation's chief law-enforcement agency.
The notion that Sessions might be "out of it" mentally arose recently with the release of The Threat, a book by former FBI Director Andrew McCabe. From a recent report at Newsweek:
Former Attorney General Jeff Sessions regularly and casually used shocking racist sentiments while serving in President Donald Trump's cabinet, according to a new book written by former FBI Deputy Director Andrew McCabe.
In his memoir—titled The Threat—McCabe paints a picture of an attorney general who struggled to understand the workings of government, was unable to stay on top of his busy schedule and blamed almost all the country’s problems on immigration, Washington Post reporter Greg Miller wrote in his review of the book.
In one particularly shocking exchange, Sessions reportedly told McCabe the FBI was a better organization when “you all only hired Irishmen.” Drawing on archaic and offensive stereotypes, he clarified, “They were drunks but they could be trusted. Not like all those new people with nose rings and tattoos—who knows what they’re doing?”
McCabe's portrayal of Sessions gets even more alarming:
Sessions’ views on race were described as “reprehensible” and constantly aimed to link immigration to crime, Miller reported. The attorney general “believed that Islam—inherently—advocated extremism,” while discussions about specific criminal suspects always began with the question, “Where’s he from?” quickly followed by, “Where are his parents from?” Not only was Sessions outwardly ignorant about ethnic minorities, he also apparently struggled to keep up with the most basic demands of his job. The former Alabama senator—whom Trump reportedly once branded “mentally retarded” and a “dumb Southerner”—had “trouble focusing, particularly when topics of conversation strayed from a small number of issues.”
McCabe also noted that electronic tablets used to deliver the daily presidential brief to Sessions came back with no sign that he had even entered the passcode to view the important document. He not only failed to read other intelligence reports but also got confused between classified material and information he read in newspaper clippings.
Is Jeff Sessions out of touch with reality? Consider these words from APR's report on the speech in Birmingham:
“President Trump is making great appointments to the judiciary,” Sessions added. “We need another four years of good Trump judicial appointees.”
If that line doesn't make you guffaw, I'm not sure what will. A review of the Brett Kavanaugh confirmation hearings to the U.S. Supreme Court suggests Trump can't even nominate a decent human being, much less a good judge.
Bradley Byrne
As for the man who would claim Sessions old seat -- currently held by the oily Doug Jones, who is nothing more than a bootlicker for Rob Riley -- we are talking about U.S. Rep. Bradley Byrne (R-Fairhope), who announced his candidacy last week. Byrne supports Trump's efforts to build a border wall and claims it is a matter of "fairness" and respect for "the rule of law." From a post at Byrne's blog:
Growing up, my parents taught me the basic values of fairness and following the rules. I think these values were common in households all across our state and country.
In today’s society, those two basic values need to be applied to the ongoing debate about illegal immigration.
In terms of fairness, we have people who are going through the legal process to enter our country, which takes time and effort, only to have people skip that entire process and just walk across our border illegally. That goes against the basic value of fairness. Also, we are a nation built on laws, but currently illegal immigrants openly disregard the rules and laws of our country. By not holding them accountable, we are further encouraging a culture where the rule of law does not matter.
Immigrants disregard our laws? Has Byrne considered public officials from his own party in Alabama? In recent years, we've had a governor (Robert Bentley), speaker of the House (Mike Hubbard), and chief justice of the Alabama Supreme Court (Roy Moore) forced out of office due to corruption charges.
As for Donald Trump, Byrne claims to agree with the president on almost all issues. But how does that square with Byrne's supposed concerns about "fairness"? Wouldn't it be fair for Trump to fulfill his campaign promise to have Mexico pay for a border wall, rather than U.S. taxpayers? And Byrne actually believes Trump abides by the rule of law? Perhaps Byrne needs to share that insight with Special Counsel Robert Mueller.
That should fly about as well as Jeff Sessions' claim to have been a non-partisan attorney general.
Can a computer virus actually make you the unwitting recipient of child pornography? Can that cause government investigators to track you down, leading to criminal charges that threaten your freedom, sanity, and financial well-being? Just ask Michael Fiola, a former resident of Boston, Massachusetts.
In the pending Missouri case of U.S. v. Scott J. Wells, charging documents indicate prosecutors have spent little or no time considering all the ways suspect images could have arrived on Wells' computer without his knowledge.
As for Michael Fiola, he was issued a Dell laptop in 2006 for his job as an investigator with the Massachusetts Department of Industrial Accidents. Unknown to Fiola, the computer was infested with viruses, leading to criminal charges that almost ruined his life. From an ABC News report, titled "A Misconfigured Laptop, a Wrecked Life":
When the Commonwealth of Massachusetts issued Michael Fiola a Dell Latitude in November 2006, it set off a chain of events that would cost him his job, his friends and about a year of his life, as he fought criminal charges that he had downloaded child pornography onto the laptop. Last week, prosecutors dropped their year-old case after a state investigation of his computer determined there was insufficient evidence to prove he had downloaded the files.
An initial state investigation had come to the opposite conclusion, and authorities took a second look at Fiola's case only after he hired a forensic investigator to look at his laptop. What she found was scary, given the gravity of the charges against him: The Microsoft SMS (Systems Management Server) software used to keep his laptop up to date was not functional. Neither was its antivirus protection. And the laptop was crawling with malicious programs that were most likely responsible for the files on his PC.
Fiola had been an investigator with the state's Department of Industrial Accidents, examining businesses to see whether they had worker's compensation plans. . . . He's become a spokesman for people who have had their lives ruined by malicious software. He now works as an insurance salesman in North Scituate, Rhode Island.
Of all the sinister things that Internet viruses do, this might be the worst: They can make you an unsuspecting collector of child pornography. Heinous pictures and videos can be deposited on computers by viruses — the malicious programs better known for swiping your credit card numbers. In this twist, it’s your reputation that’s stolen.
Pedophiles can exploit virus-infected PCs to remotely store and view their stash without fear they’ll get caught. Pranksters or someone trying to frame you can tap viruses to make it appear that you surf illegal Web sites.
Whatever the motivation, you get child porn on your computer — and might not realize it until police knock at your door.
If you are like me, that segment contains some of the scariest information you've seen in a while. An enemy, a prankster, a true pedophile can invade your computer via a virus and remotely fill it up with unlawful child-porn images. Sheesh. Fiola, in fact, hardly is alone in facing such a nightmare, as AP reports:
An Associated Press investigation found cases in which innocent people have been branded as pedophiles after their co-workers or loved ones stumbled upon child porn placed on a PC through a virus. It can cost victims hundreds of thousands of dollars to prove their innocence.
Their situations are complicated by the fact that actual pedophiles often blame viruses — a defense rightfully viewed with skepticism by law enforcement.
“It’s an example of the old ‘dog ate my homework’ excuse,” says Phil Malone, director of the Cyberlaw Clinic at Harvard’s Berkman Center for Internet and Society. “The problem is, sometimes the dog does eat your homework.”
What exactly happened in the Fiola case? AP explains:
In 2007, Fiola’s bosses became suspicious after the Internet bill for his state-issued laptop showed that he used 4½ times more data than his colleagues. A technician found child porn in the PC folder that stores images viewed online. Fiola was fired and charged with possession of child pornography, which carries up to five years in prison. He endured death threats, his car tires were slashed and he was shunned by friends. Fiola and his wife fought the case, spending $250,000 on legal fees. They liquidated their savings, took a second mortgage and sold their car.
An inspection for his defense revealed the laptop was severely infected. It was programmed to visit as many as 40 child porn sites per minute — an inhuman feat. While Fiola and his wife were out to dinner one night, someone logged on to the computer and porn flowed in for an hour and a half.
Prosecutors performed another test and confirmed the defense findings. The charge was dropped — 11 months after it was filed.
The damage, however, was done -- and it might be irreparable:
The Fiolas say they have health problems from the stress of the case. They say they’ve talked to dozens of lawyers but can’t get one to sue the state, because of a cap on the amount they can recover. “It ruined my life, my wife’s life and my family’s life,” he says.
The Massachusetts attorney general’s office, which charged Fiola, declined interview requests
.
Here is information that should make all of us rest easy at night:
Pedophiles can tap viruses in several ways. The simplest is to force someone else’s computer to surf child porn sites, collecting images along the way. Or a computer can be made into a warehouse for pictures and videos that can be viewed remotely when the PC is online.
“They’re kind of like locusts that descend on a cornfield: They eat up everything in sight and they move on to the next cornfield,” says Eric Goldman, academic director of the High Tech Law Institute at Santa Clara University. Goldman has represented Web companies that discovered child pornographers were abusing their legitimate services.
But pedophiles need not be involved: Child porn can land on a computer in a sick prank or an attempt to frame the PC’s owner.
The inconvenient truth? The modern computer world is like "The Wild, Wild West," with all sorts of potential danger lurking under those keyboards:
“Computers are not to be trusted,” says Jeremiah Grossman, founder of WhiteHat Security Inc. He describes it as “painfully simple” to get a computer to download something the owner doesn’t want — whether it’s a program that displays ads or one that stores illegal pictures.
It’s possible, Grossman says, that more illicit material is waiting to be discovered.
“Just because it’s there doesn’t mean the person intended for it to be there — whatever it is, child porn included.”
How did U.S. Judge Virginia Emerson Hopkins, who is so crooked she must squeak when she walks from all the oil and grease dripping off of her, get backed into a corner while trying to cheat us in "The Jail Case"? We invite you to come along for a step-by-step explanation of how an oily federal judge found herself with no ammunition and essentially threw up her hands by using the "We Just Disagree" card. (With apologies to English singer-songwriter Dave Mason, who surely did not record his 1970s hit "We Just Disagree" with the intention of it being used as a cover for judicial corruption.)
Hopkins dismissed "The Jail Case" -- and wrongfully denied our Rule 59 Motion to Alter or Amend Judgment -- on two primary grounds: statute of limitations and state immunity. Let's take a look at her actions on those two issues. (All relevant documents to this post -- our complaint, Hopkins' dismissal order, our Rule 59 motion, two amendments to it, and Hopkins' Rule 59 order -- are embedded at the end of this post. The case currently is on appeal before the 11th Circuit.):
Statute of Limitations
(A) The ticking clock and the face of the complaint -- Shockingly, Hopkins does make at least one correct citation to law, and it comes on page 6 of her dismissal order: "“Dismissal under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc.,358 F.3d 840, 845 (11th Cir. 2004).
Just because Hopkins occasionally can make a correct statement of law, that does not mean she can correctly apply it to our case. Please hold that thought; it's important, and we will come back to it.
(B) What's that you're saying? -- Hopkins primary justification for dismissing our claim on statute of limitations grounds can be found on page 15 or her order: "Claims based on arrest and/or imprisonment pursuant to legal process accrue on the date of such arrest. Wallace v. Kato, 549U.S. 384, 397, 127 S. Ct. 1091, 1100, 166 L. Ed. 2d 973 (2007) (holding that the statute of limitations for a § 1983 claim seeking damages for false arrest begins to run at the time the claimant becomes detained pursuant to legal process)."
Dave Mason
In the first segment of that sentence, Hopkins absolutely butchers the U.S. Supreme Court (SCOTUS) finding in Kato. In fact, it's so bad that a reasonable person could wonder if she was drunk when she wrote it -- assuming she wrote it, which she probably did not; it likely was penned by a clerk in her office.First, Kato is about claims of FALSE arrest and FALSE Imprisonment, and Hopkins makes no mention of that in the first segment. More importantly, nowhere in Kato does it say a claim based on false arrest/imprisonment accrues on the date of the arrest.
The second segment of Hopkins' sentence is a fairly accurate paraphrase of the Kato holding, as it applies to certain CRIMINAL cases. But was mine a criminal case -- in reality and on the face of the complaint? No, I was falsely arrested an imprisoned based on a civil case, for alleged defamation.
(C) What does Kato really say? -- We spell this out on page 8 of our Rule 59 motion:
For false imprisonment and its subspecies false arrest, "[t]he ... cause[ s ] of action ... provid[ing] the closest analogy to claims of the type considered here," Heck v. Humphrev, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383, the statute of limitations begins to run when the alleged false imprisonment ends. sec, e.g., 4 Restatement (Second) of Torts§ 899."
The general rule in Kato is clear: The clock starts ticking on the statute of limitations when the alleged false imprisonment ends. There is no shortage of other authority that says the same thing.
(D) A matter of authority -- What do other authorities say on the accrual of the statute of limitations in a case alleging false arrest/false imprisonment? The issue already has been decided in the Northern District of Alabama, from a case styled James v. City of Birmingham (ND of AL, 2012):
"The running of the statute of limitations on false imprisonment is subject to a distinctive rule-dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: 'Limitations begin to run against an action for false imprisonment when the
alleged false imprisonment ends."' Wallace, 549 U.S. at 389 (quoting 2 H. Wood, Limitation of Actions§ 187d(4), p. 878 (rev. 4th ed. 1916).
What do you know, a judge in the Northern District of Alabama -- U.S. Magistrate John E. Ott can discern the actual law and apply it correctly. Maybe Hopkins could learn from him. She also could learn from reading other authorities, such as 4 Restatement
(Second) of Torts § 899, which we cite on pages 2-4 of our first amendment to the Rule 59 motion:
“For false imprisonment, the statute [of limitations] begins to run only when the imprisonment ends, since the period of imprisonment is treated as a unit." Restatement (Second) of Torts;§ 899, (1979). See Wallace v. Kato, 549 U.S. at 389, 127 S. Ct. 1091. "The running of the statute of limitations on [common-law] false imprisonment is subject to a distinctive rule — dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned.").
Hopkins also could learn from When Statute of Limitations Begins to Run Against Action for False Imprisonment or False
Arrest, 49 A.L.R. 2d 922 (2010), M.C. Dransfield, which we cite on page 4 of the first amendment:
For false imprisonment in particular, the authorities overwhelmingly hold that a cause of action for false
imprisonment accrues on the discharge from imprisonment.
My discharge from imprisonment was on March 26, 2014, and our complaint was filed on March 26, 2016, meeting the two-year statute of limitations. It can't be seriously argued that our claims are untimely, but Hopkins tries anyway, even though she can make no accurate, valid citation to law that supports her ruling. Hence, she shrugs and says, "We just disagree."
(E) Land of confusion -- Why is there any confusion abut this? There shouldn't be, for anyone who has integrity and can read. But we probably can thank the late SCOTUS justice Antonin Scalia author of the Kato decision, for any confusion that surrounds this issue. While Scalia was revered on the right, the truth is that he was a shallow thinker, a poor writer, an enemy of civil and human rights, and a pawn for law enforcement and corporate America.
In the Kato opinion, Scalia cites the holding noted in items (C) and (D) above. But then, as was his tendency, he muddies the waters, with this (citations omitted):
The running of the statute of limitations on false imprisonment is subject to a distinctive rule — dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: "Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends." Thus, to determine the beginning of the limitations period in this case, we must determine when petitioner's false imprisonment came to an end.
Reflective of the fact that false imprisonment consists of detention without legal process, a false imprisonment ends once the victim becomes held pursuant to such process — when, for example, he is bound over by a magistrate or arraigned on charges.
For good measure, here is the summary holding in Kato:
Held: The statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.
What does Scalia's muddled writing tell us? The petitioner (Wallace) in Kato was charged with a crime, and his arrest was followed by criminal proceedings, and he eventually was detained "pursuant to legal process." Scalia even gives examples of such legal process -- and they include being bound over to a magistrate or arraigned on charges.
None of that happened in my case because I was not arrested for a crime. There was no arraignment, I was not bound over to a magistrate, and there was no legal process. That takes us back to item (A), where Hopkins states (correctly) that a lawsuit can be dismissed on statute-of-limitations grounds only if it is "apparent from the face of the complaint that it is time-barred." That also takes us back to item (B), where Hopkins claims the statute of limitations began to run when I was held "pursuant to legal process."
But was there ever "legal process" in my case? Were there any criminal proceedings following my arrest on alleged "civil contempt" -- any arraignment, any appearance before a magistrate? The answer is no because I was not arrested for a crime. Even more importantly, the face of our complaint -- which you can see under the Factual Allegations section in Hopkins' order, starting at No. 25, never says I was subjected to criminal proceedings or legal process of any kind.
Chris Blevins
While I was in the Shelby County Jail, inmates told me I would go to a "72-hour hearing," where you are arraigned on charges, get a court date, etc. I went to a 72-hour hearing, with a bunch of other inmates, and never heard my name called for the alleged offense -- contempt of court related to a 100-percent civil matter. When I asked the magistrate about the contempt charge, for which I apparently was incarcerated, she said, "We don't have that in our records."
Why? Well, this was a criminal proceeding -- the very thing Scalia mentioned in Kato -- and I was not arrested for a crime. To bring it closer to home, Hopkins claims I eventually was held pursuant to "legal process," but I was not -- and the face of our complaint never says I was. Hopkins finding that our complaint is time-barred is based on what lawyers call "assuming facts that aren't in evidence."
State immunity
Hopkins' claim that deputy Chris Blevins is immune from lawsuit for breaking into our home, beating me up, dousing me with pepper spray -- all for a non-criminal matter -- is, to borrow a crude phrase, "batshit crazy." And we make that clear in the second amendment to our Rule 59 motion, beginning on page 1:
The Alabama Supreme Court . . . has adopted a burden-shifting framework for establishing a right to immunity, per Ex parte Estate of Reynolds, 946 So. 2d 450 (Ala., 2006): “A defendant initially bears the burden of demonstrating that he was acting in a function that would entitle him to immunity.” In this case, the defendants hold the burden of proving they were acting within the line and scope of their employment, and they have not come close to doing that, making dismissal on this issue improper.
Alabama law goes even further:
In fact, the Alabama Supreme Court has held that a determination on immunity for deputies cannot be made without discovery, so again, dismissal is improper and outside the law. From Ex parte Haralson, 853 So. 2d 928 (Ala., 2009): “The Court cannot conclude, at this early stage of the proceedings, without evidence showing that at the time of the accident, [the deputy] was acting within the line and scope of his employment, that [the deputy] is entitled to immunity.” No such evidence has been produced in the instant case, so the Shelby County sheriff officials are not entitled to a finding in their favor on immunity. At this early point in the proceedings, they definitely are not protected by any form of state immunity.
Did the cops ever meet their burden of proving they were immune because they acted within the line and scope of their employment? Nope. Has there ever been any discovery on that issue, and has the cops' lawyer asked for discovery, which he should know is due, by law? Hell, no.
Do cops have a right to enter your home to make a non-criminal arrest? The answer is "absolutely not." Did the Alabama cops grossly violate my civil rights by beating me up inside my home? They absolutely did:
Speaking of warrants, the U.S. Supreme Court’s finding in Payton v. New York, 455 U.S. 537 (1980)“prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." The deputies’ entry into the Shulers’ home was warrantless and nonconsensual and did not involve a criminal arrest, much less a felony arrest.”
Alabama law, per Ex parte Alabama Department of Youth Services, 880 So. 2d 393 (Ala. Supreme Court. 2003), spells out exceptions to immunity for law-enforcement officers:
Youth Services goes on describe exceptions to immunity for law-enforcement officers: “Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity: (1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or (2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.
Did Blevins and his thug colleagues act "maliciously," "in bad faith," "beyond his authority"? No one could seriously argue otherwise.
Hopkins' claim that the Alabama thugs are protected by immunity is preposterous -- probably enough to make Vladimir Putin wobbly. No wonder Hopkins took the lazy, easy route and played the "We Just Disagree" card. That's how crooked judges roll.
Let's close this out on a high note, with Dave Mason performing an acoustic version of 'We Just Disagree' -- with help from Rick Derringer (Edgar Winter, Steely Dan), Mark Farmer (Grand Funk Railroad), and Johnne Sambataro (Firefall):
This might read like a misprint, but it's a central question that arises in many child-pornography cases: Is the accused a sophisticated computer user?
Why would that matter in a child-porn prosecution? Well, we will go into specifics in upcoming posts, but the main reason is this: In the postmodern digital world, child-pornography images (and images of other kinds) can appear on a computer without the user's knowledge -- or without him taking any steps to acquire them. Images also can be stored on a computer -- in various places, most likely a thumb or browser cache -- without the user having any idea they are there.
To obtain a conviction, the government must show the accused "knowingly" received, possessed, or distributed "contraband" -- unlawful images of child pornography. That task is made easier if it can be shown the accused is a sophisticated user -- who knows how the guts of a computer work.
That certainly would exclude your humble blogger, along with many computer users -- including the defendant in the Missouri case of U.S. v. Scott J. Wells. The feds' complaint/affidavit in the Wells case provides little or no evidence that the accused is the kind of user who would know how to enter the bowels of his laptop and exert "dominion and control" over images he might or might not know were even there. (The complaint/affidavit is embedded at the end of this post.)
Our review of the court file indicates that is one of several reasons the government has an exceptionally weak case against Wells. In fact, it's a prime reason Wells should be acquitted, the charges probably should be dismissed, and he likely should never have been charged or detained (for almost two years).
This issue has arisen in numerous child-porn cases, across state and federal jurisdictions. Our research indicates state and federal child-porn laws share much in common, with identical language often turning up in both. A classic example of "sophisticated-user" analysis providing a turning point in a child-porn case is Barton v. State of Georgia (2007). Here are the key facts:
Following a jury trial, Edward Ray Barton was convicted of 106 counts of sexual exploitation of children. On appeal from the trial court's denial of his motion for a new trial, Barton asserts that the State failed to prove his knowing possession of child pornography. He further claims that the trial court erred in allowing a computer forensic analyst to testify as to the age of persons depicted in images found on Barton's computer. Finding that the State failed to prove knowing possession of child pornography, as charged in the indictment, we reverse. . . .
. . . the evidence shows that, after the Walker County Sheriff's Department began investigating allegations of child molestation against Barton,1 his wife provided authorities with Barton's laptop computer. Upon conducting a forensic examination of that computer, law enforcement retrieved 156 images they believed met the definition of child pornography stored on the computer's hard drive. Barton was indicted for sexual exploitation of children with respect to 106 of those images. Specifically, Barton was charged with “knowingly possess[ing] ” child pornography in violation of OCGA § 16-12-100(b)(8), which makes it unlawful “for any person knowingly to possess or control 2 any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.”
How did the government seek to prove it's case. The process sounds a lot like what probably will happen in U.S. v. Wells:
At trial, the State sought to prove Barton's knowing possession of child pornography via the testimony of Special Agent Ben Murray of the United States Secret Service, a forensic computer analyst. Murray testified that all computers will store pictures or other information viewed over the internet on the computer's hard drive, in temporary internet file folders. There is nothing that such a user can do to prevent the computer from storing such items. Murray also explained that not everything stored in a computer's temporary internet file folders results from the affirmative conduct of a computer user. Rather, even those images which “pop-up” on a computer screen, even though neither sought nor desired by the computer user, are stored on the computer's hard drive. Furthermore, despite the fact that they are stored on the hard drive, Murray testified that no one using the computer can retrieve information stored in the temporary internet file folders without special forensic software. No such software was present on Barton's computer.
Murray testified that each of the pornographic images on Barton's computer was stored on the hard drive of his computer, in temporary internet file folders. This meant that Barton had viewed the pictures over the internet, but had taken no affirmative action to save them on his computer. Barton could not access or alter the pictures found stored on his computer's hard drive. Murray further testified that Barton had viewed all of the images within two separate time periods, totaling slightly less than four hours, on December 2 and 3, 2003. He offered no testimony as to whether the images resulted from some affirmative action by Barton, represented “pop-ups” which appeared on Barton's computer, or both. Although Murray could not tell how long Barton had spent viewing each individual image, or how long he had kept those images open on his computer, he could say that Barton had never opened any image more than once.
How did Special Agent Murray's testimony fly with the Georgia Court of Appeals? You might say it crashed and burned:
Barton argues that this testimony was insufficient to establish his knowing possession of child pornography because: (1) he took no affirmative action to store the images on his computer; (2) he was unaware that the computer had automatically saved those images to the hard drive; and (3) he had no ability to retrieve or access those images. Reluctantly, we must agree.
(Note: The last sentence, highlighted above, shows the presumption of guilt that defendants often face in child-porn cases. Why would a judge be "reluctant" to properly apply the facts and the law? Such a statement is hard to comprehend, displays flagrant prejudice against Barton, and suggests someone on the Georgia court is a smart-ass.)
In the end, the Barton court appears to have reached its conclusion rather easily. It cited case law from two federal circuits (plus the U.S. Supreme Court) and three different states:
These decisions differ as to whether possession requires that a defendant take some affirmative action to download or save internet images onto his computer. None of those decisions, however, found that a defendant may be convicted of possessing child pornography stored in his computer's temporary internet file folders, also known as cache files, absent some evidence that the defendant was aware those files existed. Several of those courts specifically found that there can be no possession where the defendant is unaware that the images have been saved in the cache files, reasoning that such ignorance precludes a finding that the defendant could exercise dominion or control over those images. . . . (“[T]o possess the images in the cache, the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession.”); . . . (knowing possession of child pornography in this context requires the prosecution to show that the defendant intentionally sought out and viewed such materials with the knowledge that the images would be saved on his computer).
Here, the State's brief fails to address the issue of Barton's knowledge, and we find that at trial the State failed to meet its burden on this issue. The sole witness on this issue-Agent Murray-testified that Barton took no affirmative action to save these images to his computer, a conclusion supported by the fact that all of the pictures were stored on the cache drive as “thumbnails. . . . ” (citing expert testimony that “if only the ‘thumbnail’ image appeared on a hard drive, this would indicate that no one ever [attempted] to download the [image]”). Murray offered no testimony indicating that Barton was aware that the computer was storing these images, but instead established only that these files were stored automatically, without Barton having to do anything. Murray also testified that Barton would have been unable to view or access these images without using software that was not present on Barton's computer. Thus, there was no way that Barton could have learned of the cache files in the normal course of using his computer. Nor did the State present any circumstantial evidence that would have allowed the jury to infer Barton's knowledge of these files-i.e., they did not show that Barton was an experienced or sophisticated computer user who would have been aware of this automatic storage process. In short, the State presented no evidence that Barton was aware of the existence of the files at issue, and in doing so, they failed to prove that Barton knowingly possessed these images.
Will the government be able to prove Scott Wells knowingly possessed child-porn images. Our review of the case file suggests the answer is no. If the trial involves an honest judge and a competent jury -- both big "ifs" -- Wells should be acquitted. In our view, it would be a grave injustice if the case goes to trial.
We recently discovered that my 2013 "arrest for blogging" in Alabama has been the subject of coverage and commentary at a news forum in, of all places, Russia. Commenters in Russia seem to say the case proves America's First Amendment is not so great after all; they certainly are on target with that.
The Web site RUPostersfeatured the jailing of Legal Schnauzer, complete with my mugshot from the Shelby County Jail,in a piece dated January 13, 2014. The headline is "Блогера из Алабамы посадили в тюрьму за ряд скандальных публикаций о местной элите." For those who need a little translation on that, it comes to roughly "Alabama blogger jailed for row of scandalous publications about local elite."
Rob and Bob Riley
No byline appears on the story, but I have to give the writer props for pretty much trashing Alabama lawyer Rob Riley and his "gal pal" Liberty Duke. Here's how the story translates into English, more or less:
More than 200 bloggers and journalists around the world are languishing in prisons for their publications and convictions. Most of them - the inhabitants of the developing world, one way or another angered their own government. Among them, for example, Saudi blogger Raif Badawi , who was sentenced to death for "insulting Islam" and "cyber-terrorism." However, there are glaring examples in the West. Meet Roger Schuler, a 57-year-old resident of Alabama, the only blogger in the Western Hemisphere who was imprisoned for his work and literally turned the concept of "freedom of speech" inside out. Roger has been the blog Legal Schnauzer for political investigations, scandals and intrigues for several years now . In fact, Schuler can be called a kind of “American Navalny”, only with a “yellowish” tinge, because in his publications there are very juicy details about the lives of the characters.
A blogger has repeatedly sued the political and legal elite of his state, without ceasing to disclose either the corruption schemes of those in power, or the connections of federal judges with the secret gay community. But in 2013, another series of publications ended for him with an indefinite term of imprisonment. That in itself is a blatant fact for the United States, where they are so proud of the freedom and rights of citizens.
It all started with the fact that Schuler published in his blog a series of posts in which he accused the local lawyer, Republican Robert Riley, Jr. of the immoral way of life. Referring to his own sources, the blogger argued that Riley had a relationship with the woman "on the side", which ended in an abortion. By itself, the news is not unique, if you do not take into account the fact that Robert Riley is the son of the former governor of Alabama and planned to run for the US Congress. It should be noted that for the Republican candidate for congressmen, such publications can put an end to a political career, since the party is in favor of nepotism and abortion.
In general, immediately after the announcement of the abortion, Roger Schuler had problems. At first, the governor’s son and his mistress obtained an injunction - a local judge, without going into too much detail, forbade Roger to publish any “slanderous” material about future congressman Riley and his colleagues (mistress) Liberty Duke.
Naturally, the blogger did not stop publishing (and did not delete the old materials), because he was sure that he was fully protected by the First Amendment of the US Constitution . However, in October 2013, the local sheriff’s department entered the game, arresting Shuler during a car search for "disrespect for the law" and police resistance.
Immediately after his arrest, an information campaign began against him - a number of Republican bloggers accused Shuler of spreading rumors and “cyberbullying”. The goal is quite obvious - Robert Riley had to show Schuler as an ordinary custom slanderer who has nothing to do with journalism.
In November, a second trial of a blogger took place, in which the local judge made a condition: either Schuler deletes all publications about Riley concerning abortion and adultery, and also pays $ 34,000 in legal costs, or remains behind bars for an indefinite period. Naturally, such a decision was not aimed at restoring justice, but at keeping Schuler behind bars as long as possible. Most likely, until the elections are over or until he decides to remove the unfortunate materials. At the moment, Roger Schuler is still in custody, refusing to comply with the requirements of the court. The Committee to Protect Journalists (CPJ) called Schuler "the only prisoner journalist in North America."
In general, looking at this whole story, it becomes obvious that the so-called "freedom of speech," as well as the right to privacy in the United States, are very vague and amorphous concepts. On the one hand, none of the public people in the USA have any guarantees that their personal lives are protected, which often ruins not only careers, but also families. On the other hand, it turns out that even the regional power in America has a very wide toolkit for closing unwanted information from the public eye, and the famous American Bill of Rights is just a historical exhibit that has long lost its relevance.
The article includes a few inaccuracies, but considering the language and cultural barriers involved, I'd say the Russian writer provided a crisp, insightful analysis. By the way, I've been putting up with misspellings of my last name pretty much my whole life, so it seems appropriate that they would get it wrong in Russia, too.
Liberty Duke
As for comments from everyday Russians -- at least, I assume they are everyday Russians and not inhabitants of a troll farm -- I found a number of them at this link. Here is the comment that jumped out at me:
hott_griff, а быть Алексеем Навальным в России, в принципе очень удобно. Можно с утра до вечера поливать государство грязью, пилить какие–то обвинительные "расследования" основанные на допущениях и "аналитических утверждениях" вместо доказательств — и тебе за это особо ничего не и будет. Это же не Штаты, где такой американский Навальный слегка наехал на сына бывшего губернатора Алабамы (ну, как "наехал", всего–то о его любовнице написал) — и тут же... хоба... наручники, суд, обвинения в клевете. А потом и дабл хоба: судебный запрет на публикации, каталажка. Да не понарошку — на 15 суток с цветами и толпой поклонников на выходе, как у Алексея в тоталитарном Мордоре, а по–взрослому. Сразу на полгодика. Для острастки. Ибо американская демократия и свобода слова, это вам не хрен собачий.
I ran that through a translation Web site and came up with this:
hotel_griff, and to be Alexei Navalny in Russia, in principle, very convenient. From the morning until the evening to water the state of the mud, cut some indictment of "investigation" based on assumptions and "analytic statements" instead of evidence — and you for that nothing will. This is not the States where such an American Navalny slightly ran over the son of the former Governor of Alabama (well, as "hit", just something about his mistress wrote)–and then... hoba... handcuffs, court, libel charges. And then double hub: judicial ban on publication, the Slammer. Yes, not for fun-for 15 days with flowers and a crowd of fans at the exit, like Alexei in a totalitarian Mordor, and in an adult way. Once in half a year. For a thrill. For American democracy and freedom of speech, this is not a fucking dog.
I can't help but chuckle at that because our Russian friend seems so sarcastic and snarky, in a way that is almost "un-American." I've highlighted the few segments I kind of understand. As for the rest, it makes for fun reading, across the oceans, even if we are not so sure what the guy is trying to say.
We invite you to check out the photo above of a food tray from the jail in Etowah County, Alabama. I spent five months -- from Oct. 23, 2013 to March 26, 2014 -- in the Shelby County (AL) Jail, and the tray of food above looks a lot like what we tended to have there.
Since my release, we've seen widespread reports of Alabama sheriffs taking funds intended for inmate food and using them for personal expenses and projects -- such as beach houses, in the case of former Etowah County Sheriff Todd Entrekin, who lost his re-election bid and stepped down last month.
Exposure to Alabama jail food can be dangerous -- both due to its sparse quantity and its dreadful quality. I have reason to worry about the impact it has had on my own health.
As for Todd Entrekin -- the poster boy for Alabama sheriff corruption -- he is not the only one to essentially starve inmates, so that his personal bottom line would benefit. Morgan County District Attorney Scott Anderson recently sued outgoing Sheriff Ana Franklin, alleging she used inmate-food funds to pay her legal expenses from battling corruption charges.
That's not the only food-related scam involving Alabama sheriffs. I have little doubt a normal-sized adult could starve in an Alabama jail; I lost 15-25 pounds in five months -- and not being a picky eater, I usually cleaned my plate, what little was on it. As you can see from the photo above, there wasn't much on it much of the time.
Also, you can check out my mugshot (below, left) from the night I entered the Shelby County Jail and another (bottom) after I spent about a week at the Jefferson County Jail, which was near the end of my overall five-month incarceration. You can see that the fullness in my face is pretty much gone, and my shoulders look shrunken. Do people suffer in jail? Can this kind of weight loss under the extreme stress of false criminal charges affect a person's health down the road?I think the answer is obvious, and something close to starvation is not out of the question.
In order to survive, many inmates while I was in jail would have family put money in an account for the "store" or "commissary" and use that for snacks. The Morgan County Whistleblower blog has reported on this double-dipping scam, and we borrowed from their commentary in a recent Legal Schnauzer post:
. . . as you walk into the doors of the jail you immediately have access to two machines, the first is so you can put money into their account so they can buy items from the jail including food. This seems like a racket to me; first, you don’t feed them adequately and then sell them overpriced food all the while getting rich off leftover jail food money. Next to the first money machine is another money machine to put money into an account so they can use the phones.
We will not address the jail-phone scam for now. But there is an element to the jail-food scam that you likely would only know if you have been in an Alabama jail -- as I have. And it goes beyond quantity of food and isn't even seen on a tray.
Roger Shuler Mugshot No. 1
The choices on an Alabama jail "commissary" list are a nutritional nightmare. While the regular meal trays are filled with food that appears to be extremely starchy, high in carbs and sodium, the "store" list contains almost all junk food. And by junk food, I mean sweets -- as in snack cakes and pies, candy, etc.
Up until the night I was "arrested for blogging," I had been fortunate to enjoy pretty good health -- and so had my wife, Carol. But I'm not so sure that is still the case. Having been exposed to jail food for five months -- not to mention a wrongful foreclosure in Alabama, an unlawful eviction in Missouri (plus the accompanying financial stress), and the emotional strain of watching Missouri cops beat Carol and break her arm, then bring bogus "assault" charges against her, the victim of an assault -- I suspect one or two of my key health numbers are outside the normal range now. I know Carol has at least one key number that no longer is within normal.
Having someone cheated out of his job and health insurance, along with his freedom and the roof over his head, can come with health consequences for the victim and his spouse. That's one of many reasons why it is a stupid thing to do.
If we wind up with a negative health event, or dealing with a chronic, life-altering illness -- all because Alabama political thugs did not like the content of my blog -- someone is going to have hell to pay. There will be major legal liability, and we intend to make sure that dealing with that is going to be painful.
(Note: Legal Schnauzer needs your help. Loyal readers have sustained this blog for years, and support is urgently needed now that my wife, Carol, is recovering from a fainting spell, which led to a recent broken arm. The healing process is going well for Carol, but statements from her doctors indicate this likely was fallout from political thugs cheating both of us out of our jobs [and health insurance] in Birmingham -- and the stress of dealing with financial wreckage that comes from being targeted for right-wing attacks. If you are able to help along our journalism journey, please click on the yellow donate button in the upper right corner of the blog, under the "Support the Schnauzer" headline. We are deeply grateful for your support through the years.)
Many Americans probably do not think much about child-pornography cases because they figure, "Hey, I'm not a pervert, I'm not going to look at that junk, so why worry about it?" In our postmodern, digital world, suspect images -- often called "contraband by law enforcement -- can appear on electronic devices without our knowledge and without us doing anything to put them there.
Many of us spend major chunks of every day -- at home, work, on the go -- with our eyes glued to desktops, laptops, tablets, mobile phones, you name it. That means you -- even if you show zero signs of being a pervert -- could be caught in a child pornography trap.
Our review of U.S. v. Scott J. Wells, an ongoing federal child-porn case in Missouri, suggests authorities are likely to seek search warrants and arrest warrants -- with federal magistrates granting them in a rubber-stamp fashion -- and they even can seek detention of an accused who hasn't been convicted of anything. Scott Wells has been detained for two years -- in Leavenworth, Kansas (due to his health issues, such as a benign brain tumor) and various county jails in Missouri -- even though charging documents suggest the government likely cannot prove central elements of the offense, as described in statutes and case law. (The complaint and affidavit in Wells is embedded at the end of this post.)
Detained is a soft word for "imprisoned" Imagine being behind bars for two years when you have not been tried or convicted of anything -- and feds consider you a "threat to society," even though you must use a walker or wheelchair to get around.
Scott Wells and his middle-class family are living an American nightmare, but abuse of child-porn laws can hit any of us, especially if we use computers and other electronic devices.
Under federal law -- of which prosecutors and investigators tend to be ignorant or oblivious -- an accused in a child-porn case can be convicted only if he is found (beyond a reasonable doubt) to have acted "knowingly," taking "affirmative actions" to exert "dominion and control" over images that match the statutory definition of child pornography. (For example, images of naked children likely are "child erotica," not child pornography, and generally do not constitute contraband.)
But what if images of child pornography appear on your electronic devices without your knowledge? How can this happen? A 2009 article at Harvard Law Review spells it out. Here is an overview, under the heading (on page 2011) "MEANS OF INNOCENT RECEIPT AND POSSESSION VIA COMPUTER":
The ease of internet communication and the low cost of transmitting electronic files have created new ways for individuals to become unintentional recipients of child pornography, and these means of delivery bear little resemblance to the bricks-and-mortar exchanges that
Congress envisioned when drafting the original statute in 1977. There are at least three new ways in which individuals might become
unintentional recipients of child pornography in computer-based transactions: through unsolicited “spam” e-mails, pop-up advertisements
during legal internet searches, and viruses. Suppose an unintentional recipient acquires illegal material, notices its presence on the computer,
and either does not know how to delete it or thinks he need not delete it so long as he does not view it. That recipient may “knowingly” possess the material, yet still be the type of “unwary” recipient that Congress intended to protect by including the knowledge standard in the statute. This Part briefly surveys the mechanics of the internet that have made the possibility of unwitting receipt increasingly salient in cases involving computer-based receipt and possession of child pornography.
Let's take a closer look at each of the three new ways individuals might become unintentional recipients of child pornography. From Harvard Law Review (HLR):
(1) Spam e-mails
Child pornography can easily be transferred among individuals in the form of electronic images sent as e-mail attachments. Although
e-mails containing illicit images can be solicited by participating in certain online chat rooms or websites, a person could also receive e-mails
that are entirely unsolicited. Once an image is sent, the recipient’s computer may be equipped with software that automatically
downloads the e-mail’s contents onto the computer’s hard drive. The user can, of course, choose to delete or retain any e-mails — including
illegal spam — that he receives. This feature of e-mail communication suggests that while unintentional receipt may occur, subsequent knowing possession only occurs if a recipient chooses not to delete the file. In the course of evaluating probable cause to conduct a search of a defendant’s computer in United States v. Kelley, Judge Rymer, writing for the court, acknowledged “the possibility that these e-mails could have been spam,” but she ultimately found it unlikely that spammers would distribute the kind of illegal material that Kelley received. Judge Thomas, dissenting in Kelley, disagreed, citing to a string of sources indicating that spam messages can contain illegal child pornography or links to illegal sites. Though federal judges have disagreed about the likelihood that individual defendants came to possess
electronic images of child pornography through unsolicited spam e-mails, they have nonetheless recognized that spam is at least a possible source of such images.
(2) Pop-up ads and caches
Personal computer web browsers have a “cache” function in which they store copies of web pages viewed by a user, creating a second way that users might accidentally possess child pornography. Because a computer’s cache has a limited capacity, files are automatically deleted through a “first in, first out” system. As an alternative, users can manually delete files from the computer’s cache or use commercial software to remove the files. Because web browsers automatically save cached files, a person need not take any affirmative step to acquire the files in order for them to be saved to his computer. Typically, because files are saved from websites that a computer user has viewed on his screen, people who possess images of child pornography in their computer cache have also sought out the websites that display the original images. But even accidental viewing of an illegal image can lead to caching, giving rise to the possibility that a person can possess child pornography — even knowingly, having seen the unsought image and realizing that his computer has saved it in the cache — without ever having had any intent or desire to do so. If an individual lacks the technological sophistication to remove files from his cache or to ensure their permanent deletion, he “knowingly possesses” electronic images of child pornography within at least one reading of § 2252(a)(4).
(3) Viruses
A third means of unintentionally acquiring child pornography arises when a computer becomes infected with a virus. United States federal courts have considered this possibility, but they have been slow to find that a virus was responsible for procuring the images on which child pornography charges are based. For example, in United States v. Miller, the court relied on expert testimony to conclude that “a person may come to knowingly possess a computer file without ever knowingly receiving it.” The court articulated one way in which unknowing receipt could lead to knowing possession: “This could happen . . . if the person’s computer is infected with a virus or ‘spyware’ software that surreptitiously installs advertising images. Thus, when a defendant is charged with downloading a computer file, the court must rigorously scrutinize whether there is sufficient evidence to establish the intent-element of the crime.”
Though the Third Circuit ultimately rejected Donald Miller’s claim that a computer virus had automatically downloaded illicit files, at least one plausible account of a virus that did just that has been reported. In 2003, a British man was acquitted of child pornographycharges in Exeter Crown Court “after arguing that the material had been gathered without his knowledge by a rogue program created byhackers — a so-called Trojan horse — that had infected his PC, probably during innocent Internet surfing.” Mark Rasch, a former
U.S. federal computer-crime prosecutor, expressed concern over the implications of the British case: “The scary thing is not that the defense might work . . . . The scary thing is that the defense might be right . . . . The nightmare scenario . . . is somebody might go to jail for
something he didn’t do because he was set up.” While adequate forensic examination of a suspected individual’s computer should be able
to determine whether a virus may have downloaded child pornography, the British case suggests that prosecutorial investigation and discretion in deciding which cases to bring may be imperfect mechanisms — on their own — for ensuring that only truly culpable individuals are charged and convicted in child pornography cases.
Do spam, pop-ups, or viruses account for the contraband allegedly found on Scott Wells' computer? We don't know yet. More importantly, prosecutors don't appear to know, and we see little sign they've even considered the possibility. The information we have so far suggests they simply wanted an arrest, followed by a likely guilty plea, and Scott Wells was a convenient target.
