The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the final chapter in the story of Dean Boland, the lawyer and expert witness who unfortunately chose to create child pornography in defense of his clients charged with possessing child pornography. Two of the children victimized by Boland won a $300,000 civil judgment against him, which he tried to wipe away ("discharge") in bankruptcy. A judgment can be discharged in bankruptcy, provided the judgment wasn't the result of the debtor knowingly injuring someone. The bankruptcy court here discharged the civil judgment, but only because it bought Boland's implausible pleas of ignorance. That was clear error, so we REVERSE….
The story begins in 2004, when Boland was serving as a technology expert for Oklahoma and Ohio defendants charged with possessing child pornography. Boland provided his clients a simple defense: doubt. Here's how it went. Boland created "before-and-after" exhibits. The "before" exhibits were innocuous stock photographs Boland found online of two young girls, Jane Doe and Jane Roe. Boland manipulated ("morphed") these photographs on his computer to create the "after" exhibits: images of Doe and Roe engaged in sex acts. If Boland could whip up doctored pornography this easily, the argument went, then it's possible the pornography his clients downloaded was doctored, too. In essence, the defense was that there's just no way of knowing whether real children are depicted in pornography found on the internet.
Boland tried out his exhibits in an Oklahoma federal court. After he testified, to his surprise, the prosecution turned toward him. The "after" exhibits, prosecutors claimed, were actionable child pornography. The judge interrupted that the exhibits were prepared "at court order" but told Boland to delete the images anyway. Boland didn't comply. Instead, he called federal prosecutors in his hometown, Cleveland, to see if they agreed his exhibits were illegal. The prosecutors didn't call back. So Boland shipped his computer from Oklahoma to his mother in Ohio, fearing prosecution. Nevertheless, he also continued using the exhibits in testimony in Ohio courtrooms.
As it turns out, Boland's exhibits were in fact illegal. 18 U.S.C. § 2256(8)(C) defines as "child pornography" any image which is morphed to make it appear that a real minor is engaging in sexually explicit conduct. Ohio federal prosecutors caught up with Boland and offered him a pre-trial diversion agreement in lieu of prosecution, which Boland signed. In the agreement, Boland admitted he violated federal law (18 U.S.C. § 2252A(a)(5)(B), specifically) in morphing the images of Doe and Roe into child pornography.
Federal prosecutors identified Doe and Roe as part of their investigation and told Doe and Roe's parents what Boland had done. The parents promptly sued Boland under the civil-remedy provision of the federal child pornography statute, 18 U.S.C. § 2255, which provides minimum damages of $150,000 to victims of child pornographers. Seeing as Boland admitted he violated the law, Doe and Roe won a combined $300,000 judgment. We rejected all of Boland's challenges to criminal and civil liability….
Some of the links he sought to deindex (thus hiding them from Google searchers) reflect what the stories were about (I've reordered the list for clarity); I've also added a space after each "https" to avoid HTML weirdness:
The court order offered to Google as a basis for the request was a name change order, which of course isn't really a substantive justification, coupled with this statement (which seems to have been truncated):
The entire court order is sealed for my personal safety. I am a victim of domestic violence, death threats and harassment that followed from that incident. The perpetrator is my former spouse. She plead guilty to charges related to her assault on me in our home with your school age children present. Following that event, she made numerous threats on my life, her own life, and threats to "crash her car with the children inside." She interfered with my work such that I was terminated from my job. She interfered with second career schooling I enrolled in nearly causing me to be dropped from the program until the administrators realized who was making the false complaints, etc. I showed this evidence and my own testimony to the Probate Court and they granted me a sealed name change. Name changes are only sealed in Ohio upon a showing of a significant threat to the personal safety and security of the applicant for the name change. However, my form …
I suspect that Google isn't going to act on the request, but the attempt to hide this information struck me as worth noting.