Doe and Roe vs Attorney Dean Boland

Child Porn Defense Expert Hit for Civil Judgment; Affirmed on Appeal

more+
less-

This is the 6th Circuit's opinion affirming a district court's award of $300,000 against a child pornography defense expert in the case of Doe and Roe vs Attorney Dean Boland.

The civil claim against Boland arose in relation to his expert testimony and the attendant exhibits prepared for the accused in a pair of separate child pornography cases; one state, the other federal. Boland admits that he took stock photos of children, models from the Internet, and "morphed" them [think photoshop] onto images depicting sexual acts.

[Note: the opinion references Boland's "apology" tendered to the Cleveland Bar Association, wherein he stated, "I do recognize that such images violate federal law."]

The idea, according to Boland, was to demonstrate to a jury the difficulty in ascertaining genuine child pornography. His testimony, combined with the digitally manipulated images he created, were used to create reasonable doubt in the criminal trials. By showing the juries "before and after" images of the children, Boland implied that it was impossible to know for sure whether an accused intended to view genuine child pornography.

His expert trial testimony caught the attention of FBI agents in Cleveland, who then searched and seized his computer, and brought the images to the attention of the parents of the minors depicted in the images.

The parents sued Boland under the civil damage provisions of the federal child pornography statute. The statute liquidates damages in the minimum amount of $150,000.

Initially, the federal court judge granted Boland's motion for summary judgment, ruling that the civil damages provisions of the statute exempt expert witnesses from liability; the Sixth Circuit reversed this decision and remanded the case back to the trial court.

On appeal, Boland's argument that his images were protected by the First Amendment failed. Likewise, his argument that the district court's judgment violated his Sixth Amendment right to the effective assistance of counsel argument also fails. The 6th Circuit's ruling stuck to precedent holding that the evil of child pornography far outweighs it's expressive value, even in the "expert witness" context.

Boland also asserted that such plaintiffs were required to show "actual damages". The Sixth Circuit disagreed, holding that these were no ordinary claims, and that damages of this nature are liquidated precisely in order to minimize the catastrophic nature of any hearings designed to force the victims of child pornography to prove how they were injured.

The Sixth Circuit concluded their very well-reasoned opinion by noting that the $300,000 judgment against Boland was "tough medicine" for an attorney that created the morphed images thinking he was helping the accused; not committing fresh crimes.

The case is notable for the consequences that sprout from certain strains of zealous representation.

LOADING PDF: If there are any problems, click here to download the file.

Published In: Constitutional Law Updates, Criminal Law Updates

Reference Info:Decision | Federal, 6th Circuit, Ohio | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Timothy Flynn, Clarkston Legal | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »