Prosecutors Threaten Child Porn Legal Defender

The Cleveland Plain Dealer (reg. req.) reports a disturbing story regarding a lawyer who serves as a defense expert in child porn cases (Ex-prosecutor now toppling porn cases). The defense expert, a former prosecutor,

has developed a computerized courtroom exhibit that he uses to demonstrate how, with a $650 PhotoShop software program, adults can be digitally morphed into appearing as if they are children, and vice versa.

The reason this is relevant is because the Ohio law requires that:

a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child.

This is becoming a bigger and bigger issue, as I've noted (Volokh on the Future of Virtual Pr0n). The leading case on the issue is Ashcroft v. Free Speech Coalition, which threw out a Federal law that criminalized pornography that only looks like child porn, but was made with adults or virtual actors.

What's upsetting about this story is that Federal and state prosecutors are threatening this defense expert:

"People from the prosecutor's office have called to warn me: 'Dean, watch your back. They don't like what you're doing with digital imaging,' " Boland said. "I'm telling the truth and they don't like it. They want me to shut up. I've been in hypersensitive siege mode ever since I got threatened with arrest in Oklahoma."

Threatened with arrest?!? Indeed,

A judge is expected to rule on Tuesday in Oklahoma, where federal prosecutors considered arresting Boland in April after an explicit courtroom demonstration. Some of the images involved what appeared to be children engaged in sexual acts, which angered prosecutors.

Well, that's the freakin' point isn't it? That is, people can make images that appear to be children engaged in sexual acts, but aren't children. How can you conclusively demonstrate the point in court without showing some of those images and how they may be made? These threats are, as Lewis Katz, a professor at Case Western Reserve University's School of Law, calls them, a "travesty."

This doesn't mean there has to be a huge child porn loophole and all future prosecutions are futile. There is a lot of actual child porn out there. Among other things, prosecutors ought to be developing a database of authenticated child porn and prosecuting those who possess such authenticated child porn.

via Peter D. Junger's Samsara's Blog