If this lawyer thinks he is going to get a ordinance declared unconstitutional based on the grounds of "fairness" then these RSOs need another lawyer! How about trying OVERBROAD and as written I am quite sure no one can micro manage folks and their every move who are not under some form of supervision as this ordinance does. Also, as written it would not be possible for RSOs to live due to lack of access to normal businesses that any reasonable person would need to obtain life's necessities.
11-12-2009 Florida:
by Jeremiah Jacobsen
FORT MYERS, Fla. - A Fort Myers lawyer is fighting to throw out a new law meant to protect your kids from sex offenders.
On Thursday, a Lee County judge will hear arguments about whether Lee County's "Child Safety Zone" ordinance is unconstitutional. Attorney Peter Aiken says the law is far too broad to be fair.
"I'm a grandfather in this community. I have two little grandkids," Aiken said. "I don't have a problem in the world with real laws, with real penalties."
But Aiken says the "Child Safety Zone" law makes it too difficult to understand where offenders can and can't be.
"The problem with a law like this, which I call a feel-good law, is it makes the public feel good and feel safe, but it doesn't do anything," Aiken said.
Aiken represents 57-year-old Joseph Comfort, the first person arrested under the ordinance, after visiting a Lehigh Acres swimming pool in July.
The law orders offenders to stay 300 feet from areas "where children congregate" like schools, parks, and beaches; but Aiken says the language is so vague, offenders don't know where they can be legally.
"If you read this ordinance technically, you can't go to McDonald's, because McDonald's has the playground out front."
Lee County Sheriff Mike Scott was one of the law's leading supporters before it passed in March.
"The sympathy in terms of restrictions would not lie with the person who did the violating, it should lie with the victim, in the light of protecting future victims," Scott said, during an interview on the subject with WINK News last January.
But Aiken says Florida law lumps all sex offenders together in one category, whether the past crime involved a child or not.
"This law deals with anybody that's been convicted of a sex offense and has been labeled a sex offender, regardless of how long ago, regardless of the conduct," Aiken said.
Aiken says Comfort's crime nearly 20 years ago didn't involve a child; yet the attorney says this ordinance is like punishing his client for life.
"A lot of these people are living clean, productive lives, with children, with families. It's not fair," Aiken said. "It is absolutely, 100-percent, not fair."
Aiken says sex offenders are already subject to tough laws and regular visits by deputies.
The sheriff's office says it will let the legal process go forward without speculating on an outcome. ..Source..
Thursday, November 12, 2009
FL- Attorney says Lee County sex offender law is unconstitutional
Wednesday, November 11, 2009
MI- Ruling gives state most of child-killer Dean Metcalfe's pension
9-20-2009 Michigan:
MUSKEGON COUNTY -- A Muskegon judge has awarded most of child-murderer Dean Catlin Metcalfe's pension money to the state, to reimburse taxpayers for some of the cost of keeping Metcalfe in prison until he dies.
The Sept. 3 order by 14th Circuit Judge James M. Graves Jr. ends a lawsuit by the state treasurer seeking the bulk of the killer's past and future pension checks from CMS Energy. Metcalfe gets a $263 monthly check deposited into his prison account from CMS, formerly Consumers Power, where he worked as a mechanical repairman.
Graves' order gives the state 90 percent of the assets already in Metcalfe's prison account, including past pension proceeds, but excluding wages from his prison job. The judge also ordered the warden of Metcalfe's prison to give the state treasurer 70 percent of Metcalfe's future pension checks.
The state estimated the cost of Metcalfe's incarceration at nearly $360,000 as of March 2009, when the lawsuit was filed. It costs Michigan an estimated $32,000 to $33,000 per year to house an inmate in a state prison.
Metcalfe's pension checks amount to $3,156 per year.
Earlier, Graves ruled that the estate of Metcalfe's murder victim, Andre Bosse, has no legal right to the pension money. That ruling was not disputed by the victim's mother, Linda Bosse, whose attorney conceded the state's argument that a December 1997 judgment awarding all of Metcalfe's assets to the victim's estate was no longer in effect because more than 10 years had passed without its being enforced.
Metcalfe, now 56, kidnapped, molested and shot 11-year-old Andre Bosse in June 1997. Massive searches for her body were mounted in Muskegon, Oceana and Lapeer counties, all without success. Her remains were finally discovered in March 2002 in a wooded area of Lapeer County.
Metcalfe is serving a term of life without chance of parole for first-degree murder, as well as lesser terms for first-degree criminal sexual conduct with a person younger than 13 and possessing a firearm while committing those felonies. He is lodged at Bellamy Creek Correctional Facility in Ionia. ..Source..
WA- Bremerton Neighbors Question Cluster of Sex Offenders
11-11-2009 Washington:
by Josh Farley
For Libby Parins, having eight sex offenders as neighbors has not only decreased the quality of life on the 900 block of Washington Avenue, it has hurt the value of her home.
She understands the need for housing ex-convicts like sex offenders once they’ve done their time. But she doesn’t get how so many can pile up in a home so close to her own.
Parins and about 40 of her neighbors and other residents came to Kitsap Community Resources’ Park Avenue offices Tuesday night to express to authorities their frustrations that someone on their block is renting to sex offenders.
Authorities from Bremerton Police and the Department of Corrections explained that they can monitor certain offenders while they’re on probation. They encouraged residents who see suspicious activity to call 911 so they could investigate it.
But ultimately, authorities told the crowd, that they don’t have the power to say where the offenders live, or with how many other offenders.
That came as a disappointment to Parins and others.
“I want to know my neighbors,” Parins said.
Such sex offender concentrations are common around the state, according to Washington Department of Corrections Secretary Eldon Veil. Veil prefers sex offenders to have homes, which provide stability and reduce the chance they’ll re-offend, rather than live on the streets.
He added that in such group settings, “they’ll snitch” on each other — because they don’t want to lose the housing — and such monitoring helps keep them from re-offendeing.
Bremerton Detective Sgt. Kevin Crane told the audience Tuesday night that the number of Level 3 sex offenders in Bremerton has doubled in just a few years, by 20. There are a total of 211 in Bremerton, 792 in Kitsap County and about 20,000 in the state.
Such offenders live in a city like Bremerton because they have access to buses, their community corrections officer, counseling and otherwise, Crane said.
“This is where all of the services are,” Crane said.
Department of Corrections officials pointed out that there are about 15 landlords in Kitsap County that will rent to sex offenders. Without them, many more would be homeless — and more likely to re-offend, they said.
Still, such pockets of offenders gives the area a bad name, some told authorities.
“This is a concentration that’s making us a sex offender neighborhood,” said resident David Farr, who added that he’s contacting lawmakers about the situation.
There’s also residents like Jessica Fox, who have to face such convicts on a daily basis while watching her children go to the school bus stop, which is not far from the house that is rented by the offenders.
Robbyn Myers, an area landlord, came to the meeting to tell residents to try and keep an open mind.
“These people want a second chance,” she said of sex offenders. “They’re trying to make things right.”
Andrew Oakley, Bremerton’s community resource officer, extended to audience members the idea they could start a block or neighborhood watch, which resonated with residents like Parins.
Jan Clayton-Bryant, who had just moved her family from Port Angeles to Bremerton three weeks ago, said she hasn’t gotten much sleep lately, worrying about her seven children and four grandchildren.
When she found out about the sex offenders on the 900 block, she said her first instinct was “to cut and run.”
She decided to stick it out, feeling empowered by having knowledge, and attend Tuesday night’s meeting.
“You can go into any neighborhood and there will be some sex offenders,” she said. “Better to have knowledge of them than not.” ..Source..
Tuesday, November 10, 2009
FL- Two arrested in attack on accused child molester
11-10-2009 Florida:
by JON BURSTEIN, Sun Sentinel
Two Broward men were in jail Sunday after allegedly beating a third man with concrete blocks when a young boy said the man had fondled him.
The Fort Lauderdale man who police say was severely beaten by a furious father after allegedly fondling a 3-year-old boy had been arrested twice before -- but never convicted -- in sex crime cases, according to court records.
Luke Petruschke had to be placed in a medically induced coma Saturday after he was kicked, punched and bludgeoned with concrete blocks and rocks by Manuel Vega, 27, and another man, according to Davie police. The attack took place just after Vega's son revealed that Petruschke had fondled him the night before at the family's home in Davie, authorities said.
Officials at Memorial Regional Hospital in Hollywood would not release Petruschke's medical condition Sunday afternoon.
Petruschke, 38, was acquitted in 1997 of two sex-related charges in Sarasota County and, four years later, prosecutors in Osceola County dropped a lewd and lascivious molestation charge against him, online court dockets show. Details of the two cases were unavailable Sunday.
Davie police spokesman Sgt. Greg Gasse said that if Petruschke recovers, he will face charges of lewd and lascivious molestation.
While Vega's anger was understandable, Gasse said, it was not his place to act as ``judge, jury and executioner'' immediately after the boy made the accusation.
Vega now faces more serious charges than Petruschke, and whatever the boy suffered will be compounded by having his father behind bars, Gasse said.
Vega's mother said her son is a good father who ``lost it.'' Vega met Petruschke about two months ago, and they would go fishing and play cards together, said Evelyn Vega, the 3-year-old's grandmother.
``I pray that [Petruschke] lives for my son's sake because if he dies, my son will be in jail for a long time,'' she said. ``We will not drop these charges. He will pay for what he did to my grandson.''
Manuel Vega and his friend, Krish Carter, 43, are being held at the Broward County Jail without bond, facing attempted murder charges. Vega has a criminal history that includes convictions for grand theft, burglary and cocaine possession.
Petruschke had spent Friday night at Vega's home in the 5100 block of Davie Road after having dinner with the family, police said. The next morning, as he prepared to leave, the boy told his parents that Petruschke had fondled him.
Davie police responding to a 911 call about the suspected molestation arrived to find a bloody Petruschke staggering out of a nearby wooded area with severe head injuries.
Vega claimed that Petruschke had wrecked his Chevy Cavalier, but an investigator quickly concluded the damage wasn't the result of a crash, police said. Car windows had been smashed and there were two bloody chunks of concrete inside.
A witness later told police he saw Vega and Carter breaking out the car's windows with the concrete, punching Petruschke inside the car and then pulling him out to continue beating and kicking him. Vega and Carter left Petruschke motionless on the ground and went into Carter's home to wash their hands, the witness told police.
When Vega was arrested, he told the officers, ``That is my son, man. What would you do?''
Evelyn Vega said her grandson seems to be doing fine emotionally, but has asked for his dad.
``Manuel has been in jail before and done his time, but he loves his son and he cares for his son dearly,'' she said. ``I'm pretty sure he's driving himself crazy because he can't see [his son], talk to him and give him a hug. I know Manuel is destroyed in there thinking about this.'' ..Source..
CA- Detectives Use New Technology to Capture Sex Offender in Santa Cruz
11-10-2009 California:
by KCBA.com
SANTA CRUZ, Calif- Police have arrested a man who allegedly contacted a 12 year-old over the internet for sex.
Santa Cruz Police were investigating Jeffery Totten for over a week when a Santa Cruz Police Department Detective who posed as a 12 year old female in an Internet chat room was contacted by Totten.
Totten made offers of sex and sent lewd photos of himself to the person he thought was a 12 year old female. Totten eventually agreed to "meet" at an undisclosed location, for the purpose of having sexual relations.
When Totten arrived he was subsequently arrested by Detectives and booked in to the Santa Cruz County jail.
Detectives were able to utilize newly acquired software "WebCase" in the course of this investigation. The software was acquired through a grant in partnership with the Innocent Justice Foundation, which serves to provide law enforcement with the technology tools to manage these intensive investigations. ..Source..
IN- Sex offender registry reduced by 1/3
11-10-2009 Indiana:
by Megan Stembol
Supreme court decision opens potential
ALLEN COUNTY, Ind. (WANE) - A landmark case at the Indiana Supreme Court may decrease the number of people in Allen County that have to register as a sex offender by more than a third.
The Indiana Supreme Court overturned a ruling by a Marion County judge in the case of Richard P. Wallace vs. the State of Indiana . It's a decision that could echo across the state.
In 1988, Wallace pleaded guilty to a Class C felony Child Molesting charge. He completed his sentence in 1992, two years before state legislators passed the Sex Offender Registration Act into law. It required probationers and parolees convicted of child molesting on or after June 30, 1994 to register as sex offenders, among other things. The law was later amended to include all offenders, regardless of conviction date. The Indiana Supreme court ruled making Wallace register as a sex offender is unconstitutional because it violates the state's ban on ex post facto laws.
Deputy Prosecutor Michael McAlexander, the Allen County Prosecutor's office , explained what that means. "[The Indiana] constitution does not allow you to look at an event first and then decide that [it] should be against the law and then retroactively enforce it against people."
On the Allen County Sex Offender Registry alone, the case potentially affects about 245 of the 650 people registered. That's about 37% of Allen County registered sex offenders that potentially won't have to check in with local authorities and have their addresses and other personal information available to their neighbors on the registry website.
"I don't get to interpret the law, my job is to enforce the law," said Allen County Sex Offender Registry Administrator, Detective Jeff Shimkus. "I don't have to like it, but we have to apply the law the way the courts tell us to. That's the bottom line."
Shimkus warns parents that the registry is only a tool, and that thorough parenting is the best preventative measure to protect kids.
"You can have someone who's not registered, never been convicted of anything, who may be a very sick individual and he just hasn't gotten caught yet. Parents have to have common sense," said Shimkus.
The Allen County Sheriff's Department makes contact with about 200 registrants per month, knocking on their doors to confirm their address is correct. Shimkus admits, reducing the number of registrants by a third would reduce the work for police, who are dramatically taxed by the requirement of the Sex Offender Registration Act. Since it's conception in 1994, the law has been amended time and time again, to include more offenses, and more monitoring of offenders.
The Indiana Department of Corrections , the state registry administrative body, has a message to offenders on its website , regarding the Wallace case. It advises offenders to seek legal counsel if the Wallace case applies to them. Shimkus says locally, offenders have to file a motion to have themselves removed from the registry. A handful of people have already done that in Allen County. ..Source..
MI- Editorial: Sex Offender Registry: Too broad a list
11-10-2009 Michigan:
by Muskegon Chronicle
Lawmakers need to review the rules that put names on the list
The Michigan Court of Appeals’ precedent-setting decision to remove a Muskegon man’s name from the state’s Public Sex Offender Registry was the right one.
And we urge the state Legislature to follow up with a careful review of the sex registry and who should be on it.
Robert Lee Dipiazza was convicted in 2004 under the Holmes Youthful Trainee Act, which allows the dismissal of cases against young first offenders if they successfully complete probation. Youthful offenders’ court files also are suppressed to establish a clean record and give them a second chance.
Dipiazza, who was convicted of having consensual sex with his underage girlfriend who is now his wife, followed all the rules. So, his court files were suppressed, but his name remained on the sex offender list.
The sex registry is on the Internet and any employer can check that list. Unfortunately for Dipiazza, because his court files had been suppressed, employers couldn’t check them out to confirm his story that he was not a pedophile or a rapist.
Dipiazza claimed in his court case that because his name is on the registry he has been unable to find work and actually lost two jobs because his employers discovered his name on the list.
Since Oct. 1 2004, no one convicted under the Youthful Trainee Act has been listed on the sex registry. But the names of all the people convicted under the act before that date remained. If Dipiazza’s case had been handled 32 days later, his name never would have shown up on the registry.
“I think it’s a very important ruling,” Miriam Aukerman, who argued the case, told The Chronicle. “It’s kind of a wake-up call, because the registry has become so overbroad. ... I think it’s a signal to the Legislature to really think about who needs to be on the registry and who doesn’t.”
The intention of the Sex Offender Registry, which was placed on the Internet in 1999, to alert neighbors, employers and others of “potential serious menace and danger to the health, safety, morals, and welfare of the people and particularly children,” was never an issue in Dipiazza’s case. There was never a reason to believe he was a danger to the public.
Having his name and others like him on the list just makes it more difficult to keep track of the most dangerous offenders. In fact, there are 10 photos on the information site right now of convicted sex offenders living in the state who have not complied with the law. The last reported address for one, Terry Lee Salazar, was Hart.
To show how difficult following up on sex offenders can be, neighboring Ohio is dealing with the aftermath of the alleged murders of at least 11 women by a registered sex offender who regularly checked in with the sheriff’s department. He was released from prison in 2005 after serving 15 years on a charge of attempted rape. He was arrested last week and charged with five murders.
More than 44,700 names are on the Michigan Sex Offender Registry. About 16 percent were not in compliance with the registry law.Actually 16% is incorrect, statistics released a few days ago by the Michigan State Police show 4,315 out of compliance out of 45,164 which is 9.5% (see last entry in chart). Further, out of compliance includes those IN PRISON who have no reason to comply with the registry, to them it is a non-issue until they are released.
That’s a lot of checking by parole officers and police.
Lawmakers need to review the list requirements now. ..Source..
FL- Bus stop protestors reach agreement
This takes the cake, the original issue was the school bus stop which is outside the park on the main road. Now, the resolution is, to install 9 cameras inside the park to monitor sex offenders, but which ones? In addition, the bus stop may have kids for a few minutes of the day, say twice a day, but they intend to monitor the sex offenders 24/7. Why? Is that a violation of any law or rights of the registrants? If parents would take their children to the bus stop there would not be any problem and $18,000 plus maintenance costs would be saved.
11-10-2009 Florida:
by Tracy Jacim
ORLANDO, Fla. (WOFL FOX 35) - After spending many nights sleeping on the side of Orange Blossom Trail in protest and after trying to get a daycare established so that high-level sex offenders living nearby would have to move, a contract between abuse survivor Barbara Farris and the HOA at the Lakeshore Village Trailer Park was forged on Monday.
Some eighty sex offenders of all types live in the community near a school bus stop. They, with the permission of the park's owner, have agreed to install internet accessible surveillance cameras throughout the park and at the bus stop.
Farris shook hands with not one, but two sex offenders who live in the Lakeshore Village Trailer Park.
"We are all happy with the outcome," said Farris, who will no longer threaten to put a daycare up to chase the high level offenders out.
Instead, Farris and her watchdog group Bee Aware, will install nine surveillance cameras. Only Farris and a select few will have the access code to access them any time online.
Farris explains, "If they're going to do something wrong, offenders will change patterns, and now we'll be able to see them on tape. We'll be recording 24 hours."
"We've been fighting for the wrong reasons. We're really out for same resolution," said the president of the park's HOA. He is also a registered sex offender.
He says he also wants a safe community. He also wants surveillance cameras to keep a close eye on the higher level repeat offenders.
"A consensus vote was taken by the park and we came up with a high 70 percent vote for the surveillance cameras proposed by Ms. Farris. If you're not doing something wrong, what have you got to worry about?"
They hope to have nine cameras installed within the month. Each one will cost about $2,000, and Farris is footing the entire bill. ..Source..
MI- Bay County attorney hopes to test homeless defense for man accused of failing to register as a sex offender
11-10-2009 Michigan:
by LaNia Coleman | The Bay City Times
How does a convicted sex offender comply with the state Sex Offender Registration Act if he’s homeless?
“The legislature has us in a quandary,” Bay City attorney Mark E. Janer said.
Janer is representing Patrick J. Maher Jr., a 29-year-old man jailed in April for failing to comply with the act that compels sex offenders to register their addresses with state police.
Offenders charged with misdemeanors must register annually. Felons must register every three months.
Registrants must show state-issued photo identification. The state, however, won’t issue a photo ID card to a person without an address.
“If he can’t find a place to live, it’s impossible to comply with the law,” Janer said.
Maher entered a guilty plea in April and was scheduled for sentencing Monday but Janer filed a motion to withdraw the plea.
Janer said he wants the opportunity to introduce the homeless defense, either in a preliminary hearing in District Court or at trial in Circuit Court.
As Janer prepares to test the defense in Bay County, a state Court of Appeals is grappling with the same issues in the case of People v. Dowdy.
The case of Randall L. Dowdy sprang from Ingham County and landed in the lap of the state Supreme Court in February.
Dowdy, 61, was rendered homeless in 2006 after operators of an Ingham County homeless shelter gave him the boot because of his sex offender status.
Dowdy failed to register his address because he had no address to register. Meanwhile, he was bunking in abandoned buildings and public places.
The high court justices hashed over the case for about six months, failed to reach a consensus, then tossed the hot potato to the appeals court for further consideration.
“There is no published case law governing the unusual factual circumstances,” Chief Justice Marilyn Kelly wrote in an Aug. 6 order remanding the case to the Appeals Court.
Assistant Prosecutor Barbara J. Hayward isn’t convinced that Maher’s case mirrors Dowdy’s.
“He (Maher) was transient but not homeless,” Hayward said.
She said he has stayed with friends and family off and on and this was not the first time he failed to comply.
“He would rather float along than apply himself,” Hayward said. “Is he making the choice to bounce around and make himself technically homeless?”
Hayward said any sex offender could claim homelessness to skirt registration requirements.
Bay County Circuit Judge Joseph K. Sheeran granted Janer’s motion to withdraw Maher’s plea.
Maher’s next court date is pending.
Maher pleaded guilty April 15, 2002, to attempted third-degree criminal sexual conduct with a person 13 to 15. The charge stemmed from a July 4, 2001, incident in Bay County, state records show. ..Source..
Framed for child porn _ by a PC virus
11-10-2009 National:
by JORDAN ROBERTSON
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.
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 & Society. "The problem is, sometimes the dog does eat your homework."
The AP's investigation included interviewing people who had been found with child porn on their computers. The AP reviewed court records and spoke to prosecutors, police and computer examiners.
One case involved Michael Fiola, a former investigator with the Massachusetts agency that oversees workers' compensation.
In 2007, Fiola's bosses became suspicious after the Internet bill for his state-issued laptop showed that he used 4 1/2 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 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.
At any moment, about 20 million of the estimated 1 billion Internet-connected PCs worldwide are infected with viruses that could give hackers full control, according to security software maker F-Secure Corp. Computers often get infected when people open e-mail attachments from unknown sources or visit a malicious Web page.
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.
In the first publicly known cases of individuals being victimized, two men in the United Kingdom were cleared in 2003 after viruses were shown to have been responsible for the child porn on their PCs.
In one case, an infected e-mail or pop-up ad poisoned a defense contractor's PC and downloaded the offensive pictures.
In the other, a virus changed the home page on a man's Web browser to display child porn, a discovery made by his 7-year-old daughter. The man spent more than a week in jail and three months in a halfway house, and lost custody of his daughter.
Chris Watts, a computer examiner in Britain, says he helped clear a hotel manager whose co-workers found child porn on the PC they shared with him.
Watts found that while surfing the Internet for ways to play computer games without paying for them, the manager had visited a site for pirated software. It redirected visitors to child porn sites if they were inactive for a certain period.
In all these cases, the central evidence wasn't in dispute: Pornography was on a computer. But proving how it got there was difficult.
Tami Loehrs, who inspected Fiola's computer, recalls a case in Arizona in which a computer was so "extensively infected" that it would be "virtually impossible" to prove what an indictment alleged: that a 16-year-old who used the PC had uploaded child pornography to a Yahoo group.
Prosecutors dropped the charge and let the boy plead guilty to a separate crime that kept him out of jail, though they say they did it only because of his age and lack of a criminal record.
Many prosecutors say blaming a computer virus for child porn is a new version of an old ploy.
"We call it the SODDI defense: Some Other Dude Did It," says James Anderson, a federal prosecutor in Wyoming.
However, forensic examiners say it would be hard for a pedophile to get away with his crime by using a bogus virus defense.
"I personally would feel more comfortable investing my retirement in the lottery before trying to defend myself with that," says forensics specialist Jeff Fischbach.
Even careful child porn collectors tend to leave incriminating e-mails, DVDs or other clues. Virus defenses are no match for such evidence, says Damon King, trial attorney for the U.S. Justice Department's Child Exploitation and Obscenity Section.
But while the virus defense does not appear to be letting real pedophiles out of trouble, there have been cases in which forensic examiners insist that legitimate claims did not get completely aired.
Loehrs points to Ned Solon of Casper, Wyo., who is serving six years for child porn found in a folder used by a file-sharing program on his computer.
Solon admits he used the program to download video games and adult porn — but not child porn. So what could explain that material?
Loehrs testified that Solon's antivirus software wasn't working properly and appeared to have shut off for long stretches, a sign of an infection. She found no evidence the five child porn videos on Solon's computer had been viewed or downloaded fully. The porn was in a folder the file-sharing program labeled as "incomplete" because the downloads were canceled or generated an error.
This defense was curtailed, however, when Loehrs ended her investigation in a dispute with the judge over her fees. Computer exams can cost tens of thousands of dollars. Defendants can ask the courts to pay, but sometimes judges balk at the price. Although Loehrs stopped working for Solon, she argues he is innocent.
"I don't think it was him, I really don't," Loehrs says. "There was too much evidence that it wasn't him."
The prosecution's forensics expert, Randy Huff, maintains that Solon's antivirus software was working properly. And he says he ran other antivirus programs on the computer and didn't find an infection — although security experts say antivirus scans frequently miss things.
"He actually had a very clean computer compared to some of the other cases I do," Huff says.
The jury took two hours to convict Solon.
"Everybody feels they're innocent in prison. Nobody believes me because that's what everybody says," says Solon, whose case is being appealed. "All I know is I did not do it. I never put the stuff on there. I never saw the stuff on there. I can only hope that someday the truth will come out."
But can it? It can be impossible to tell with certainty how a file got onto a PC.
"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." ..Source..
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