Ruling in fake child-porn case

Associated Press

CINCINNATI

An appeals court said Wednesday that a lower court should revisit a ruling in a civil case against an expert witness who took stock images of children from a photo website, digitally changed them to make them pornographic, then used them in court.

The children’s guardians sued Dean Boland, seeking money for damages under federal child pornography laws. But a district court in Cleveland rejected the claims, finding that Congress didn’t intend those laws to apply to expert witnesses.

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati reversed the lower court’s ruling, saying the law “contains no such exception.”

Boland, a Cleveland attorney who specializes in technology-related legal issues, downloaded innocent-looking images of the 5-year-old and 6-year-old and digitally changed them to make it look as if they were engaging in sexually explicit acts, the appeals court said.

Boland displayed the before-and-after images as an expert witness to show that it would be impossible for someone who did not participate in creating an image to know for sure whether those depicted in it were minors, the court said.

Despite Boland’s claim that a court permitted him to create and possess the images, “none of this authorized or required the creation or possession of new child pornography,” the ruling says. The judges wrote that Boland could have combined two “innocent pictures into another innocent picture” to illustrate the difficulty of determining whether an image is real or virtual.

Authorities argued that Boland may have violated federal law by creating and possessing some of the images, and the appeals court said Boland admitted in a 2007 pretrial diversion agreement with federal prosecutors in Cleveland to violating a ban on knowingly having child pornography. The children’s guardians sued a few months later, claiming they are due money under the pornography laws they say Boland violated.

Boland said Wednesday that he admitted to a federal claim that possession of child pornography violates federal law, “but I never admitted the statute applies to me.”

Boland says the images he altered were not child pornography because they do not show actual children being harmed.

“Another main concern is that this court determined that there should be no immunity for an expert witness to present exhibits which appear to be child pornography, even though everyone agrees that they are not that and that no chilren are being harmed,” Boland said.

He questioned whether the ruling will mean that defense attorneys even picking up pornographic pictures in court risk being sued by those pictured or their parents.

Boland has not decided whether to ask for a full appeals court hearing, appeal to the U.S. Supreme Court or raise additional arguments in district court.

The appeals court left it up to the district court to address Boland’s other defenses, including his argument that that the children did not suffer personal injury because the guardians said the children do not know about the images.

The guardians’ attorney was pleased with the ruling.

“My clients are owed at least $150,000 each for starters, and I’m hoping to get that now,” said Elyria attorney Jonathan Rosenbaum.