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MADISON — The Wisconsin Association of Computer Crime Investigators (WACCI) recently recognized a number of Wisconsin Department of Justice Employees at their annual conference held in Madison.
At this year's conference, WACCI presented two “Prosecution Team” awards to recognize the importance of the team approach to investigating computer crimes and crimes involving electronic evidence. The nominations were based on the effective use of electronic evidence in holding criminals accountable. The Wisconsin Department of Justice played a crucial role in both cases.
In the first case, State of Wisconsin v. Benjamin Mercer, the following received a Prosecution Team Award:
Assistant Attorney General Michael G. Schaefer, Special Agent Michael A. Hoell, Criminal Analyst Timothy W. Lokrantz, and David Losen, Sergeant Laboratories.
Mercer was the Human Resources Director for the City of Fond du Lac, WI. The City IT Department noticed Mercer's unusual internet activity during work hours via computer monitoring software. After a criminal investigation, full forensic analysis of Mercer's work computer, a preliminary hearing, and a two-week jury trial, Mercer was found guilty of 14 counts of possessing child pornography.
Mercer was charged with a total of 34 counts of Possessing Child Pornography. Twenty of those counts related to images found in the unallocated space of the computer hard drive during forensic examination. The other 14 counts related to images identified and preserved by Fond du Lac police during a review of the computer monitoring software, which showed that Mercer had accessed certain web sites and certain specific images at those sites on a particular day and time. The monitoring software allowed investigators to access those same images in real time. The Fond du Lac police did so and preserved the content of those images. Those 14 images were never found on Mercer's computer hard drive.
At trial, Mercer was found not guilty of possessingthe 20 images found during the forensic examination in the unallocated space of his computer hard drive (meaning they had been deleted previously). He was convicted of the 14 counts related to images identified and preserved through the City's computer monitoring software.
The case is unique because it is the first known case where a person was found guilty of possessing digital images which were not actually found on his hard drive. The defendant had argued that because the images were not found on the computer hard drive there was insufficient evidence that he had ever possessed them. The trial court (and the jury) rejected that argument based in part on the extensive evidence presented by the state regarding the operation of, and the reliability of, the computer monitoring software log entries created by the monitoring package used by the City.
This evidence established that Mercer had twice systematically navigated through the Internet to a child pornography web site and systematically accessed multiple child pornography “magazines” at that site and sexually explicit images of children within those magazines on the date charged. The state relied on detailed and extensive testimony from one of the developers of the computer monitoring package used by the City. David Losen from Sergeant Laboratories provided an interpretation of the logs created by the monitoring package and provided the jury with an in court demonstration of how the package logs and reports web pages visited by the user and the interactions by the user with the web site (clicking, scrolling, etc.).
As a result, the testimony established that Mercer had specifically navigated to the child pornography site in question repeatedly on the date of the charges and the monitoring logs essentially recreated his interaction with the site and the images present there. This evidence was sufficient to establish that Mercer knowingly possessed the 14 charged images, even if temporarily, when he caused the images to be delivered to his computer to view them before discarding them. Testimony by DCI computer forensic analyst Timothy Lokrantz confirmed and corroborated the monitoring software evidence and identified evidence suggesting that Mercer had taken steps to hide or destroy digital evidence of his illegal Internet activity.
The conviction in the Mercer case was appealed to the Wisconsin Court of Appeals. That court reviewed the evidence and found that it was sufficient to support the convictions because the computer monitoring software established that Mercer's computer was used to access the Internet child pornography site in question and the specific images at issue (and other evidence established that Mr. Mercer was the person using his computer at the time).
The court essentially applied the existing definition of “possession” in the context of the receipt and viewing of a digital image and concluded that possession of the digital image is complete when a person knows of the nature of the image and causes it to be delivered to his computer even temporarily. Assistant Attorney General Christopher Wren represented the state in the appellate litigation.
The Mercer case is the first known example of a case in which a defendant was convicted for possessing a digital image of child pornography that was not found by computer forensic investigators to be located on the computer hard drive in some form at the time of the search of the computer. The conviction is owed primarily to the existence of the computer monitoring package and the action of the Fond du Lac police in using that software to preserve in a timely way the images accessed and displayed by Mercer on the date in question.
In the second case, State of Wisconsin v. Ryan Davison, the following received a Prosecution Team Award.
Criminal Analyst Mark Howard, Special Agent Michael Hoell, William F. Bedker (former Dodge Co District Attorney), Sgt. Chris Mireski of the Lomira Police Department, New Waterford (Ohio) Police Chief Daniel Haueter and former DOJ-DCI Director Craig Klyve (posthumously).
In May 2009, New Waterford, Ohio Police Chief Daniel Haueter, acting in an undercover capacity, made contact with a user later identified as Ryan Davison of Lomira, WI,in an incest chat room.
Forensic analysis of the computers seized pursuant to a search warrant executed at Davison's residence revealed numerous child pornography images and sexually explicit chat logs. Additionally, Analyst Howard recovered several still images of a nude young child relative of Davison.
On 11/16/09, Davison pled guilty in Dodge County Circuit Court to Incest with Child, 1st Degree Sexual Assault of a Child under 13 - sexual contact, and 1st Degree Sexual Assault of Child under 12 - Intercourse. Davison was sentenced to 33 years in prison followed by 19 years of extended supervision, and lifelong sex offender registration.
“These cases exemplify cooperation between law enforcement agencies,” said Attorney General J.B. Van Hollen. “It is our mission to assist law enforcement, and to do so with the highest level of professionalism and competence. I want to thank the WACCI Board for recognizing the outstanding work of these Prosecution Teams.”
“I'm grateful to the WACCI Board for recognizing the great work done by our staff with our local and federal partners. Through our combined efforts, we continue to make a difference in protecting our children from internet predators,” said DCI Administrator Ed Wall.
WACCI is an association of professionals dedicated to sharing information on computer crimes.