The Volokh Conspiracy

Good job, Attorney General! Now everyone in a federal courthouse can bring politics into their defense, since there still hasn't been any rational official explanation for the firing of those attorneys. Of course, maybe all federal prosecutions are politically-motivated. With this administration, that is seeming less and less implausible.

Some right wingers will never understand "blowback," will they?

Are these comments attached to the right article?

http://volokh.com/posts/1179462342.shtml is about child porn and forensics, but the comments are about Gonzales and "blowback."

This is why the Supreme Court needs to rethink precedent permitting State prosecution for essentially the same crime a person was acquitted for on the federal level. The fourth amendement and the fifth amendment privilege against self-incrimination have had real meaning because of the end of the silver platter rule and the ban on use of state compelled testimony in the federal courts, and vice versa. Given the lack of any real constraints on the excercise of power held to be valid under the commerce clause, the same principles that have been used to ban evasion of the search and seizure and self incrimination protections by (all of a sudden) invoking "federalism" should be extended to prevent the shennanigins of trying people for acquitted conduct and turning a blind eye in the name of "federalism". There is no way that any fair interpetation of the the fourteenth amendment would allow New York to try someone who spent a year in jail fiighting the same charges, ultimately resulting in acquittal. Even under the old "shock the concsience" test, it is hard to find anything more "shocking to the conscience".
Similarly, this case shows a need for much more rigorous enforcement of the excessive bail clause. It doesn't seem very sound constitutional theory to require (even at the state level) a jury trial for a six month prison sentence, and then allow a defendant who has a right to a presumption of innocence, a defendant charged with a non-violent crime- allow him to sit in jail for a year with no rights at all. Given his job, the defendant probably initially had enough assests to cover any resonable bail, but had to have save up his fortune in order to have finances sufficient to retain counsel as talented as the always well financed prosecution. There is simply no justification for a[n] lack of enforcement of the execessive bail clause that allowed this man who probably committed no crime to do more time than mnay thiefs and batterers.

Sorry about missing the context; I guess I was just excited by the forensics discussion. :)

In one of Andrew Vachss' novels, his character advertises child s&m porn, keeps the money and turns the addresses over to the cops. Little sideline there.

That's old technology.

Can stuff, including but not limited to child porn be inserted onto somebody's computer w/o the owner's knowledge? If so, can the result be distinguished from files actively sought?

Damn.

mr. meade.
Given the attraction some parentsbasementdwellers have for screwing up the rest of us, giggling at their anonymous potency, when they make up viruses, I could see some serious stuff happening to people who didn't have a clue.
Principal/coach/teacher/cop/clergyman you don't like?
The goodlooking, honor student, socially adept all-conference linebacker homecoming king senior everybody hates....
Political opponent.
Jeez, Mr. Meade. I hope it's a lot tougher than you assume.
Well, if I am ever on a jury for that kind of a case, I'd be inclined to think there could be something to the "I had no idea." defense.

Here's another scenario: saboteur has a flash drive (a keychain-sized storage device, for those not in the know,) the target leaves his/her desk for two minutes, and later, there's porn everywhere, so there's an opening at the company.

Scarier scenario: it's child porn, so the victim is out a job and faces bigtime prosecution.

Even scarier scenario: it happens in Arizona, where the mandatory sentence is ten years per infraction, run one after the other.

I am the defendant in this case. I'm glad Prof. Kerr has posted article about my case. As my attorney noted, the way government prosecutes child pornography cases has become a "modern day witch hunt." In the closing arguments, prosecution strongly suggested that because I was a computer expert, I should have known that by using the internet, I was going to end up with child porn in the computer. The government expert testified that there was no evidence any of the alleged child porn files were ever opened and viewed. So we decided not to call our own expert witness to say the same thing.

My attorney, Mr. Daniel Gerdts, did an excellent job of selecting the right jury and arguing common sense should rule in this case, instead of sexual disgust.

There are a lot of other cases, in which prosecution should never have been proceeded, such as the expert witness of State of Ohio v. Brady, 2007 WL 1113969 (Ohio App. 11 Dist.). After the Ohio state judge ordered a copy of hard drive be handed over to the defense expert, Feds charged the expert with possession of child pornography.

Now that I have been acquitted, I would like to try to do something to bring these types of overzealous prosecutions to light.

NF,
I'm certainly glad you got off, and as a computer programmer I can attest that it would certainly be possible to write a macro to search for titles with certain keywords. But I'm not going to fault the prosecutor here too heavily, after all they didn't plant the evidence on your computer, it was there.

As to whether it is possible to plant child pornography on someones computer unknowingly here is an article about using trojans to plant child porn. It is pretty scary, but with proper browser and firewall settings, and safe downloading practices, I think the risk is pretty minimal.