Ohio Lawyer Forced To Admit To Child Porn For Trial Exhibit of “Morphed” Images and Then Hit With $300,000 In Damages

A case out of Ohio raises in my view some highly disturbing questions on the expanding reach of pornography laws. The Sixth Circuit has upheld a $300,000 award against an Ohio lawyer for his use of a trial exhibit in a child pornography case. Dean Boland wanted to show how an innocent picture can be converted into a pornographic picture without actually causing a child to engage in the displayed conduct. In order to avoid federal prosecution, Boland had to apologize publicly and admit to possession for child pornography. He was then hit with the damage award from the featured children despite his statement in court that these children did not participate in the depicted acts.


Here is how the court described the underlying facts:

In February 2004, Dean Boland downloaded images of two identifiable children, given the unidentifiable names Jane Doe and Jane Roe for purposes of this litigation, from a stock photography website. See Doe v. Boland, 630 F.3d 491, 493 (6th Cir. 2011). Boland digitally manipulated (“morphed”) the photographs to make it look like the children were engaged in sex acts. In one picture, five-year-old Jane Roe was eating a doughnut; Boland replaced the doughnut with a penis. In another, he placed six-year- old Jane Doe’s face onto the body of a nude woman performing sexual acts with two men. In March and April 2004, Boland used the images as part of his expert testimony in two Ohio state-court proceedings and a federal criminal trial in Oklahoma involving child pornography. He displayed “before-and-after” versions of the images, testifying that it would be “impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor.” R. 77-2 at 119.
Boland’s testimony caught the attention of the FBI’s Cleveland office. Federal agents searched his home and seized several files from his computer. Boland, 630 F.3d at 494. In April 2007, Boland entered a pre-trial diversion agreement with the U.S. Attorney’s Office for the Northern District of Ohio, in which he admitted violating 18 U.S.C. § 2252A(a)(5)(B) by knowingly possessing a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” R. 73-1; 18 U.S.C. § 2256(8)(C). Boland also published an apology in the Cleveland Bar Journal, stating, “I do recognize that such images violate federal law.” R. 73-1 at 12.

Before getting to the lawsuit by the parents of the depicted children, my primary concern rests with the federal investigation and threatened prosecution against Boland. This is an attorney who was clearly using the images not to arouse but to educate the viewers. It was also a relevant exhibit that was allowed by a court.

I fail to see such a use of morphed images can be deemed a possible crime. Indeed, many civil libertarians have argued that morphed images cannot constitute children pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down two provisions of the Child Pornography Prevention Act of 1996 as an abridgment of “the freedom to engage in a substantial amount of lawful speech.” The Court noted that “CPPA prohibits speech despite its serious literary, artistic, political, or scientific value.” This case might add “legal value.” Normally, you are privileged in terms of defamation for what is said in court. However, even if the same would apply to the display, the FBI simply raided his home and computer. The opinion does not state that there was any use of these images other than to make his legal point.

After being alerted to the display, the Jane Roes and their guardians filed this lawsuit in 2007 against Boland under 18 U.S.C. §§ 2252A(f) and 2255. Section 2252A(f) provides a civil remedy to “[a]ny person aggrieved” by child pornography, while § 2255 provides a civil remedy of at least $150,000 in damages to minor victims who suffer a “personal injury” from various sex crimes. Once again, there is substantial question of the “sex crime” here. Yet, the district court avoided that question by ruling that two civil remedy statutes exempt expert witnesses from liability. The Sixth Circuit reversed and held that the laws contain no such exemptions or any other exemption that would cover Boland.

Section 2255 allows “[a]ny person who, while a minor, was a victim” of a variety of sex crimes “and who suffers personal injury as a result . . . regardless of whether the injury occurred while such person was a minor” to sue and “recover the actual damages such person sustains.” Since Boland admitted to the crime to avoid prosecution, it locked him into the case.

Judge Jeffrey Sutton brushed aside the fact that the lawyer did this to make a legal point in court through a relevant exhibit: “When he created morphed images, he intended to help criminal defendants, not harm innocent children Yet his actions did harm children, and Congress has shown that it means business in addressing this problem by creating sizable damages awards for victims of this conduct.”

The result is a breathtaking award for a trial exhibit not seen outside of the case where the children were expressly stated as not participating in what the images showed.

I fail to see why such a case would motivate the FBI when we are awash with child pornography that needs to be prosecuted. There is also the concern that the FBI took such action against a lawyer or expert who appeared in opposition to a federal prosecution. I have great qualms over the implications of this case for the practice of law. What do you think?

Here is the underlying opinion: 12a0382p-06

Source: ABA Journal

29 thoughts on “Ohio Lawyer Forced To Admit To Child Porn For Trial Exhibit of “Morphed” Images and Then Hit With $300,000 In Damages

  1. “I fail to see why such a case would motivate the FBI when we are awash with child pornography that needs to be prosecuted.”

    Laziness and revenge.

  2. This kind of thing leaves me shaking my head. However, I do think the attorney could have headed off some of this by blurring out the faces so they would not be identifiable.

    One thing that has concerned me in the past was possession of explicit photos of children or young teens given to me by both a US Attorney as well as local district attorneys. These were actual pieces of evidence discovered in the course of the investigation. When one is obligated to preserve files, how about these images? They are part of the body of evidence in these cases. Furthermore, what if the images are turned up by a defense attorney instead of the prosecutor? Will that make a difference?

    I recall the case of the teacher who was fired and tried several years ago when the school computer in her classroom was infected with a virus and porn sites kept popping up on the screen. She was found guilty, despite the fact it was the school who had not provided antivirus software and she was virtually computer illiterate.

  3. Thse children were identifiable. It violated federal law. Professor’s argument seems to be there are bigger fish to fry. (And maybe also that this man is a lawyer.).
    There are always bigger fish to fry, that does not mean you ignore the littler ones. He admitted it violated the law.
    I have to wonder if someone had done this to prove to another person it could be done, all other facts being equal, would that person also have the same defense Professor Turley gives here?
    It seems all Boland had to do was gray out the faces so they were not identifiable .

  4. Ditto, he should have blurred them out.

    Why not use some of HIS kids/relation for the demonstration? Just tell the kid’s/parents what he’s up to…see how many volunteers he gets.

    There’s a line….don’t cross it….

  5. OS, Absolutely, blur the faces and this is a non story. However, having presented video a photos juries many times, the blurring would diminish the impact somewhat. The question since he didn’t blur is, was he trying to inform or shock the jury?

  6. Fed government has way too much power when it co.mes to criminal prosecutions–too many laws that are vague and overbroad, and no checks on the system from abusing those laws

  7. JT indicated:

    Before getting to the lawsuit by the parents of the depicted children, my primary concern rests with the federal investigation and threatened prosecution against Boland. This is an attorney who was clearly using the images not to arouse but to educate the viewers. It was also a relevant exhibit that was allowed by a court.

    I fail to see such a use of morphed images can be deemed a possible crime. Indeed, many civil libertarians have argued that morphed images cannot constitute children pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down two provisions of the Child Pornography Prevention Act of 1996 as an abridgment of “the freedom to engage in a substantial amount of lawful speech.”

    Nuff said.

    What happened was the perversion of legitimate litigation.

    What next The Crucible for heaven sake?

  8. I have no experience with these kinds of cases, but I can imagine that the quality of the evidence might be substantially degraded if the face is blurred since it seems to me that he was trying to prove that children were involved (not simply a blurry youngish face) and that the process of digital image manipulation can create a very real/believeable product.
    I think I am with Turley on this one.

  9. And, I don’t like the quote from Judge Sutton where he seems to suggest that the value of the evidence is less significant because it is being offered to defend someone accused of child pornography.
    Sutton’s point about not harming children in the process is important, but I don’t know what the damages are that he is referring to.

  10. Since the days of Reagan, and probably even before, American politicians have shown contempt for the idea of the right to a competent defense.

    The charges agaisnt the lawyer weren’t about child pornography. They were a message to defense lawyers, and attempt to intimidate (or “encourage” as some might say) defense lawyers into not taking cases, or not doing their best to defend their clients.

    This goes hand in hand the with the uncountable number of cases of prosecutorial misconduct, falsified and/or destroyed evidence, witness intimidation, and other illegal attempts to make convictions easier. And let’s not forget the attempts to eliminate legal aid funding for those accused of the most heinous crimes like rape and murder.

    “The adversarial system” used to mean two sides trying to argue their points, especially in regard to lawyers. Now it means prosecutors are adversarial to justice and people’s right to a fair trial.

  11. It is no surprise that two of the three judges, Sutton (author) and Griffin, are GW Bush appointees. The third judge, Bertelsman, is a senior judge sitting by designation, appointed by Carter.

    This opinion definitely puts a chilling effect on representation of your client in a court proceeding, and frankly I find it ludicrous that the court would find that the attorney committed a criminal act. I fear that our federal judiciary has been tainted by ideological goals of the rightwing (i.e., Citizens United).

    Perhaps a petition for rehearing is in order. I doubt the Supreme Court would grant cert.

  12. I do not think the use of children was actually necessary; in fact I think the point could have been made by morphing pictures of identifiable adults, capable of giving their consent to the procedure, eating a donut or whatever.

    A) Show the pictures of the children in the innocent original photographs.
    B) Show pictures of adults in otherwise identical innocent poses.
    C) Show the morphing of the adult pictures into sexually explicit pictures, with the same assurances that the adults in fact did not engage in the depicted acts. Heck, the adults recruited or hired for that purpose could testify to that fact under oath.

    Point made. I believe one can trust the imagination of the jury in believing that if the morphing could be done with the picture of an adult, it could be done with the picture of a child.

    To some extent I agree with the professor, but I also believe that attorneys are supposed to know, better than non-attorneys, when law applies and how to research any applicable laws. The prospect of showing in public a child engaged in a sexual act should have raised some alarm bells and prompted some research. The point could have been made without that.

  13. The court allowed this lawyer to present the morphed images during trial. If this was a crime, then the judge during that trial facilitated it. Of course, nothing will be done against the judge, since he/she sits in a seat of power.

    Furthermore, the law provides for certain people to perform certain illegal acts under some circumstances. For instance, police officers routinely possess, sell, and occasionally even use cocaine or heroin during undercover narcotic operations. They also routinely solicit men for sex during prostitution stings. These activities are blatantly illegal. Yet the officers who engage in them are not prosecuted because their otherwise illegal activity is being performed with lawful permission and in service of the law and judicial system. This lawyer should have been treated the in a similar manner. If the judge had not allowed the images in court, then the lawyer wouldn’t have produced them.

  14. Neil, in my med mal case the doctor sommitted perjury, said facial paralysis a major and common complication in 2 separate depositions. When on the stand said was “unknow”. I was pro se (long story) and asked which statement was true. The judge said you are not allowed to ask him that.
    The Pa. Superior court called his testimony perjurioous yet not one person who had taken an oath to uphold the law bothered to file a complaint against him for what is a felony.
    In my limited experience judges can do whatever they want, lawyers can do whatever they want and often the client be darned.

  15. Balanced,
    “Sutton’s point about not harming children in the process is important, but I don’t know what the damages are that he is referring to.”

    Even though the photos were from a stock photo website, I doubt that the guardians of the children agreed with the photos being manipulated into port. Would you consider it damaging if it were your child in those pictures?

  16. LJC,

    Not to point you out, but would graying out have protected him from the FBI charge.

    ==============================

    IN general if one makes evidence on a EtchaSketch then is that also pornography too.

    And if it is a goodlikeness of Elizabeth Taylor do her heirs get to file suit?

    Where does purpose and use enter into these cases?

    NOwhere it would appear.

  17. I am not an attorney but if I understand correctly the issue is identifiability which blurring should act to make unidentifiable.

  18. Whoo boy, where do I start.

    The whole idea of criminalizing child pornography was to nip off the market for it, so pornographers would not create it and victimize children for those purposes.

    We are now talking about a defense attorney, who was permitted by a judge, who created an imaginary sexual act by imaginary composite children, for the protected/privileged act of submitting evidence into a court proceeding.

    Then he was extorted into admitting mens rea, that he obviously did not have, in order to avoid a trial and loss of his license.

    It is so wrong on so many levels, all I can do is start.

    Sure, many here say he should have blurred out faces, perhaps he should have, not so much because of fear of a crime, but from fear of civil suit from the childrens’ faces he used. But that is obvious 20/20 hindsight.

    This is so on-point to the lessons we were to learn from the Crucible, and 1984, as to be laughable, if it weren’t so serious.

    It is the very idea of child pornography that has been criminalized, far beyond anything actually related to the actual horrendous crime of creating it.

    That is magical thinking, and exactly like the religious crimes of 300 years ago.

  19. To Gary and all talking about blurred out faces: Blurring the faces would have defeated the purpose of his demonstration entirely; the whole POINT of his demonstration was that modern technology allows a technician to replace, in photographs or film, an adult face or body with a child’s face or body; thus creating a fiction that a child was involved in a sexual act.

    Presumably that demonstration was in pursuit of proving that a viewer of such a photograph cannot be certain it really happened or a child was ever harmed. If the faces were blurred, the demonstration falls flat; if I show the jury a photo of a child eating a doughnut that is so blurred the child cannot be identified, and a second photo with the doughnut replaced by a penis in front of the same unidentifiable blur, that is not going to convince the jury of anything at all!

    The point was that modern digital photography and easy access to Photoshop and many other powerful image handling softwares permits photo-realistic fictions to be created by novices (like lawyers) that no casual viewer can distinguish from the real thing.

    There is some point to that demonstration; pornography already has the same video-game and movie technology for fairly realistic animations, and in twenty years such animations may be hard to distinguish from reality.

    If one adult creates a fiction for the consumption of another adult, and that fiction writing never involved, even by photograph or observation, any child whatsoever, aren’t we resorting to thought police?

    A fictional murder, rape, child abuse, torture or terrorist act should not be considered a crime, no matter how realistic or disturbing it may be to read or watch. I believe that was the lawyer’s point, and blurring the photographs to the point where viewers could not TELL if it was the same face would have failed to prove his point. I believe the alternative approach I provided above would have made his point equally well, without his fictional depiction of an actual child in a sex act. Because although that should be legal, it is not.

  20. TonyC:

    Don’t include me in that admonition; I totally agree with you.
    I was just trying to be civil to those who suggested blurring faces.
    Your point is correct, blurring would have obviated the whole point of the showing how imaginary child pornography could be created.

    However I still stand on the childrens’ right to sue him in civil court.

    (I also wonder, did this guy get his clients a not guilty?)

  21. @Gary: I am torn on the children’s right to sue.

    To some extent it is slanderous; if some enemy of mine (and I have them) posted on the Internet photo-realistic but fictional pictures of me in a sex act with somebody else (or something else) I would be livid and sue. Obviously, as a fiction, that could be anything, another man, an animal, a female colleague, whatever.

    On the other hand, these children signed releases allowing their images to be used for anything. Politicians use stock-photo pictures of all sorts of people in their phony ads, presumably some of those people might be offended at their image supporting a politician they hate, but they got paid for their image. So did these kids (or their parents), they are models and releases were signed; that image no longer belongs to them and they relinquished all control of it for a fee.

    I am not a lawyer, but I question whether they even have any rights over the use of that image, since I presume an explicit agreement exists.

  22. BTW, Consider the motion-capture technology used to create the Golem in Lord of the Rings and various realistically moving monsters and characters in other films. Also, consider the very accurate and realistic aging software, that can work in reverse to show images of adults as children. That software could be used, on an adult actor or actress, to create a photo-realistic animation model of their child self.

    The simple combination of those two technologies would let adult actors perform (on up-sized sets) as their child-selves; for porn or any other purpose. So, if you believed the Golem looked realistic, what I say could happen in twenty years could actually happen today, if a producer wanted to spend the money on it.

  23. If an all inclusive release exists, as a non lawyer I would assume there is no basis to sue.
    As to blurring, I get your point. maybe he could have made some sort of composite if various noses, mouths, etc with say the eyes blurred, you can still tell it is a kid, smallness of face and features visible) but even if putting together a composite ends up being a specific kid’s face, blurring at leats one feature is enough to dissuade id.

  24. @Lee: My daughter earned money in college as a model. Although she did not do stock photos specifically, she signed releases for her image that were all inclusive. I think the purveyors of stock photos do not want any liability, and do not want to build in any work requirement for themselves like having to look up whether there are restrictions on how a photo can be used.

    Unless you are dealing with nationally recognizable people, I don’t think it makes business sense to do anything else.

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