Technology Law Notable Successes

While past performance cannot guarantee future success, it is an indicator of the ability of an attorney to understand the key issues of criminal cases involving technology.

08/22/2008
In yet another unprecedented decision, the Ohio Supreme Court granted an emergency motion for stay filed by Dean Boland on behalf of his client. His client had previously been ordered released by the court pending his appeal. After his release, the state of Ohio threatened to indict Boland's client unless he registered as a sex offender despite his conviction being currently on appeal to the Ohio Supreme Court. Dean Boland's work, along with that of his co-counsel, Brandie Swickrath, persuaded the court to order the state of Ohio to stop all such actions against his client.

The court also issued an order at the same time setting the date for oral argument in this case for November 19, 2008, several months earlier than is typical for such cases.

08/06/2008
The Ohio Supreme Court today granted Dean Boland's motion to release his client pending his appeal to the Ohio Supreme Court. Among the various arguments for a bond for his client, Dean Boland argued that the likelihood of success on appeal was a factor for the Ohio Supreme Court to consider in granting the motion for a reasonable bond and release of his client after two long years in prison.



08/06/2008
Our client contacted us after working with initial counsel for nearly two years on a federal child pornography investigation. Utilizing our experience, expert witness contacts and select private investigators, Dean Boland and his firm persuaded the government to drop its case.

The United States District Court for the Eastern District of Virginia today received a motion by the federal government to dismiss its entire case without prejudice against our firm's client. After an exhaustive investigation, including the use of a computer forensics expert ...the government was persuaded to delay our client's indictment until August 5, 2008. Today, our office was informed the government has asked the court to dismiss the entire case following its review of the evidence and witnesses uncovered in our investigation. Our client's rigorous pre-trial restrictions are lifted and he is ecstatic to return to the life that was in limbo for nearly two years.

These types of outcomes can only be achieved by counsel experienced in the unique mix of technological and legal issues present in these cases. These issues change on a nearly daily basis requiring a strict focus on these cases in order to insure counsel is as prepared as they can be.

06/01/2008
The Ohio Supreme Court has accepted for review the third child pornography/technology law case submitted by Dean Boland in the past 24 months. The details of this third ground breaking case filled with potentially precedent setting legal issues can be found here.

02/06/2008
Using Dean Boland's technology and law strategy plus the reliance on qualified computer forensics experts, the Commonwealth of PA agreed with the defense that our client was completely innocent of all 1500 counts against him. The allegations in this case presented our client with virtual lifetime sentences.

Instead of contemplating a trial or perhaps a guilty plea to lesser charges, thanks to the work of local counsel in PA and Dean Boland's technology and law experience and knowledge, the client's case was dismissed today after the state's own expert took a second look at our client's computer. That second look was prompted by the work of Dean Boland and our expert witnesses in computer forensics who discovered artifacts and other evidence from our client's computer proving he was innocent of all 1500 counts in the indictment.

The Commonwealth's expert's report is included here as a testament to the solid results that can only be obtained in these cases when qualified technology attorneys are retained.
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01/28/2008
Client given probation despite pleading guilty to 20 separate counts in state case regarding digital imaging and importuning allegations.

Dean Boland's strategy along with co-counsel produced a sentencing memorandum that convinced the court to make a rare exception and provide probation for their client.

07/09/2007
Following the implementation of Dean Boland's fair trial argument strategy in this state child pornography prosecution, the court ordered the state to provide "immunities" for defense counsel and any potential experts from both state and federal prosecution. The state, instead, elected to dismiss its case.

The judge's journal entry explaining his analysis agreeing that a fair trial could not be provided this defendant is included here.
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01/03/2007
Client facing multiple counts of possession of images. After implementation of Dean's child pornography defense, state offered him plea to charges with no jail time. Following completion of probation, his file is expunged leaving him with no record at all.

01/02/2007
Client faced 100 felony 2 counts and a potential sentence in excess of 200 years.

Along with Dean's child pornography defense, a significant sentencing presentation enabled a plea to lesser charges.

Client was sentenced to 5 years of probation and 6 months in a residential treatment program.

12/15/2006
Client was charged with three counts of possession of child pornographic images. Working with co-counsel, our firm's child pornography defense, pre-trial, resulted in a favorable resolution for our client. Facing years of prison time, our work resulted in no prison time and only five years probation.

12/13/2006
Oral argument in this precedent setting case was held today in the Ohio Supreme Court in Columbus, Ohio. The client's child pornography defense was successful at trial and again on appeal.

Click on the link below and look for case nos. 2006-0105 and 2006-0216, third from the top of the December 13, 2006 archive videos.
here.

Interesting questions from the justices. They clearly understood the question of indistinguishability, but struggled with the legal result that technological fact compels. The decision should be released sometime in the first half of 2007.

Contact me at dean@deanboland.com for copies of our supreme court brief on behalf of the citizens of Ohio.

11/22/2006
Following the court's historic decision to exclude the government's leading digital imaging expert, it filed for reconsideration. On November 22, 2006, the court issued its response to that request. It re-iterated the key points regarding digital imaging technology and again rejected the government's contention that juries are capable of deciding whether digital images are real or not by just looking at them. This case represents a huge step in child pornography defense.
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11/06/2006
Co counsel and Dean prepared a brief in this client's child pornography defense case advocating the overturning of the provisions of the Adam Walsh Act relating to defendant's access to evidence. Dean Boland argued that motion and persuaded the court to convene the first ever hearing on the constitutionality of this provision.

Co-counsel decided to attempt to defend the case on his own at that point. It is presumed he was able to competently handle the complex computer forensics, digital image and digital video issues of that hearing. Without training or experience in these areas, lawyers ought not venture to defend high tech cases, however.

At that hearing, digital video experts and computer forensics experts testified as to the difficulties the statute poses to their work on these types of cases. Their testimony, rather than argument at this point, was the key to informing the judge about the statute's problems.

We are awaiting a ruling from the court and I fully expect continuation of the case including this issue on appeal if necessary with whatever competent counsel he can retain.

The text of the winning brief is linked below.
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10/06/2006
"A motion to have the Court appoint Boland as a defense expert to a major criminal prosecution, had the State scheduling a limine hearing to shut down his testimony. The Court still was going to grant expert witness fees and travel expenses to have Boland testify at the hearing. It was imminent that Boland was going to be permitted to testify for the defense at the hearing on State's motion in limine (intended to shut down his testimony at trial). Either way, Boland's testimony was going to be a part of the record (even if State's motion had been granted, with proper objections and proffering, Boland's testimony would be preserved as part of the appellate record)." Sometimes the best child pornography defense is a good offense.

- Craig Newburger, Appointed Counsel in Ohio v. Carpenter.

09/08/2006
Oral Argument in this case was heard in front of the 11th District Court of Appeals. This is the same court that ruled unanimously in favor of Dean Boland's client, in another case on appeal to the Ohio Supreme Court being argued in December 2006.

The court of appeals sternly questioned the state's representative regarding the inability of the defendant to obtain a fair trial. Dean's argument relied upon the right to any citizen to a vigorous and effective child pornography defense.

Look for a decision on this case in early 2007.

The case brief is in the read more section.
This is the type of complex, yet effective advocacy that is only possible by an attorney with a sophisticated knowledge of technology and the emerging legal issues in child pornography cases.

These cases are not done effectively as part-time endeavors.
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08/18/2006
The state filed a motion attempting to exclude Dean Boland as an expert consultant to appointed defense counsel. Dean consulted with appointed counsel, assisted in the preparation of various pre-trial motions and strategized regarding the hearing on his expertise. As always, part of a vigorous and effective child pornography defense includes choosing the right expert witnesses.
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08/11/2006
Dean Boland consulted with the Federal Public Defender's Office as it sought to expose the junk science used by government experts in digital imaging.

In this child pornography defense case the court concluded that the FBI's leading digital imaging expert, Thomas Musheno, used an unreliable, untested and subjective methodology to allegedly authenticate digital images and videos in child pornography cases.

This opinion is the first of its kind in the country to expose a government digital imaging expert. It follows Dean Boland's exposure of a claimed state digital imaging expert in an Ohio case state case from 2004.

It reminds one yet again that without sophisticated technological knowledge, all the legal training and trial experience in the world can leave an attorney unable to see legal issues connected to technological facts.
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04/12/2006
The Ohio Supreme Court agreed, for the first time in nearly twenty years, to hear a child pornography case.

It agreed to address two narrow questions of law.

1. Whether the statutory inference provided in R.C. 2907.322(B)(3) renders R.C. 2907.322(A)(5) unconstitutionally overbroad in light of the decision announced in Ashcroft v. The Free Speech Coalition [(2002), 535 U.S 234]?

2. Whether R.C. 2907.323(A)(3)'s culpable mental state of recklessness renders this section of the statute unconstitutionally overbroad in light of the decision announced in Ashcroft v. The Free Speech Coalition?
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12/19/2000
The 11th District Court of Appeals reversed the convictions of the client and ordered that a directed verdict of acquittal.

Dean Boland wrote the appellate brief assisting attorney Tim Hart.

Every assignment of error offered by Dean Boland was found to have merit by the unanimous court of appeals.

In addition to overturning the client's conviction, the 11th District became the first court in the country to strike down as unconstitutional child pornography statutes.

The court found, agreeing with Dean Boland's brief, that two of Ohio's three child pornography statutes are unconstitutionally overbroad. It also found that images alone are insufficient to convict a defendant of knowing possession.

This decision has wide application to many similar state laws.

It also represents a conflict with federal child pornography laws that can be exploited in federal cases as well.
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11/16/2000
Based upon arguments drafted by Dean Boland and expert testimony in digital imaging, all 50 counts of possession of child pornography against the defendant were dismissed. The client's child pornography defense was unfairly restricted by federal statutes threatening defense counsel and their experts in this case.

Again, Dean Boland's work represents the first ever dismissal of an entire indictment based upon the inability of a state defendant to get a Fair Trial.

The inherent conflict of federal and state law is present as an attack on many state prosecutions for child pornography possession.

See the journal entry in the read more section for the court's concise and pointed analysis.
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07/27/2000
Dean Boland's work as an expert in digital imaging resulted in a 47 count felony indictment being reduced to one misdemeanor count in a plea negotiation completed on the day of trial.

The state attempted to qualify its expert in digital imaging and failed to convince the judge the witness could testify whether the charged images were real or not. As a result, the state dropped all charges and entered only an unrelated misdemeanor onto the record during the plea. There are many ways to quantify a successful child pornography defense and this plea was one of them.

Being able to cross-examine so-called digital imaging experts for the government is critical to winning cases depending on the circumstances. In this case, Dean Boland's knowledge of technology, coupled with his criminal trial experience, was the difference between a multi-year prison sentence and a misdemeanor.
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03/17/2000
The state attempted to offer Detective Stan Smith as an expert in digital imaging. Detective Smith claimed he could just zoom in on an image and detect if pixels had been changed.

He was cross examined with the assistance of Dean Boland and exposed his claimed technique as unreliable. His so-called reliable technique was rejected by the judge in an order entered March 17, 2004.

Dean Boland remained as a qualified digital imaging expert. His testimony resulted in a dismissal of ALL digital image counts against the defendant after a trial to the judge. Nothing defines a successful child pornography defense better than the result on these image counts in this case.

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03/15/2000
At trial, Dean Boland was qualified as an expert witness in digital imaging and digital video. He assisted counsel in preparing his direct examination questions and the cross examination questions for the state's experts.

Following a trial to the judge, the court dismissed or found the client not guilty as to 20 of the 25 counts.

He convicted the client on the 5 counts reliant upon the hearsay testimony of the state's only witness on the issue, Gabrielle Hagan.

She testified that the relevant items were in a database and were placed there by another investigator somewhere in the world and represented a "known victim." That hearsay was admitted over defense objections.

On appeal, the case for the state fell apart.