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25 Sep 2012

Computer Porn Charges in Two Separate Counties Dropped

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Jeffrey H. Garland was retained to represent JJM in both St. Lucie and Marion Counties.  Attorney Garland began the investigation in the St. Lucie County by obtaining a copy of the Excel Spreadsheet created by the States computer expert as part of his examination of the hard drive.  Garland was able to re-order the interactive spreadsheet, putting in different parameters such as dates and hash marks.  This technique revealed that questioned images were in the temporary internet files from a time and date when JJM had no access to the computer.

The investigation disclosed that JJM was house sitting for less than a week and had no prior access to the computer.  The inescapable conclusion was that certain of the questioned images had nothing to do with the accused.  Garland’s investigation further established discrepancies in the time stamps associated with the temporary internet files.  The States expert utilized EnCase software to examine the contents of the hard drive.  The time stamps were inconsistent with the BIOS time set by the computers internal clock.  The States expert admitted that this discrepancy could be caused by several factors, including the changing of the BIOS time.  The State attempted to triangulate the times by using internet service provider (ISP) records and BellSouth records.  However, the time stamps did not correlate.

During deposition, the State’s expert agreed that popups, advertisements and banners can appear without any conscious effort by the operator to bring them up.  Any images contained on such popups, advertisements and banners would appear in the temporary internet files with an appropriate time stamp.  The size of each temporary internet file, however, would indicate whether each image was a thumbnail (usually associated with an advertisement) or a full image (which may or may not be associated with an advertisement).  In any event, there was no evidence that any of the questioned images were intentionally accessed, or re-accessed, by any person during the time when JJM would have had access to the computer.

While the St. Lucie County charge was pending, the Fourth District Court of Appeal decided the case of Strouse v. State, 932. So.2d 326 (Fla. 4th DCA 2006), review denied, Strouse v. State, 933 So.2d 522 (Fla. 2006).  Citing federal precedent, Strouse held that the presence of temporary internet files, without more, is insufficient to prove possession of computer pornography.  In light of Strouse, which is binding precedent throughout Florida at this time, the State elected to drop the St. Lucie County charge.  The St. Lucie County charges were dropped by the State on March 9, 2007.

The Marion County case involved a used computer which JJM purchased from a small computer company in Dunnellon, Florida.  The computer was examined by an expert employed by the United States Customs Service.  The computer expert inadvertently “tripped the jumper” when attempting to access the BIOS portion of the computer.  This action effectively reset the internal clock of the computer, making it impossible to conduct a time frame analysis.  Garland filed a motion to dismiss the prosecution based on destruction of evidence due to the experts error.

The State charged JJM with 19 counts which occurred during a specific time period beginning on August 1, 2005, and ending on October 19, 2005.  Since the computer was purchased used, and was an older model, it is not known who or how many people may have had access to the computer.

As part of continuing discovery, Garland set the deposition of the proprietor of the business which sold the used computer.  Police reports reflected that the proprietor said he had wiped the hard drive clean and installed a new operating system.  At deposition, the proprietor denied making any such statement to the detective.  The proprietor testified that used computers are taken in trade and resold without any further inspection.  The proprietor denied wiping any hard drives clean and reinstalling any new operating systems.  Importantly, the proprietor showed up at deposition with an attorney, which suggested that the proprietor may have had concerns about the legal ramifications of his actions and/or testimony.  During the course of his deposition, the proprietor revealed that his 25-year-old son was also employed by his computer business and presumably would have also had access to the computer.

The State’s computer expert, during deposition, confirmed that questioned images were found only in temporary internet files and in lost files.  He could not determine whether the lost files were erased, overwritten or remnants from a previous operating system.

The Marion County spreadsheet was obtained on paper.  It was unavailable on an interactive CD.  As a result, Garland had to manually evaluate the spreadsheet data.  The evaluation disclosed a number of irregularities.  The meta-data showed that some 72 images were simultaneously recorded on the hard drive at the same second.  The meta-data also showed that dozens of re-access times preceded the file creation times by exactly one hour, down to the second.  These irregularities were suggestive of an internal time problem within the computer.

The defense retained the services of John A. Magliano, III, a forensic computer expert.  He confirmed defense suspicions regarding problems with the meta-data recovered from the computer.  He also agreed that the resetting of the internal clock was prejudicial to the defense.  Based upon all these considerations, the State elected to drop all 19 counts on March 29, 2007.

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