The Best Way to Be Professionally Responsible is to Do Your Job Well


There's an interesting article by Lindsay Beyerstein on AlterNet about a Connecticut substitute teacher who faces up to 40 years in prison for exposing children to pornography. The teacher was convicted of four counts of "injury or risk of injury to, or impairing morals of, children."

Here's what isn't in dispute: the teacher was using a school computer. That computer began displaying lots of pop-ups for porn sites. She tried to close the pop-up windows, but more kept appearing. Somehow students saw the pop-ups. It's unclear how the monitor was positioned in relation to the class, whether it was pointed at the class, away from the class, or somewhere in between. She did try to stop one student from looking at it when he was talking to her by pushing his face away from the screen, which would tend to support the idea that it couldn't be seen by the class at large from their seats.

The trial turned around this question: Was the teacher surfing for porn at school? The prosecution maintained that she was. As evidence, they provided a police detective as an expert witness. The detective had used ComputerCOP Pro, a program used by police in forensic analysis of computers. The detective had determined that someone had been clicking on links to open the pop-ups. He testified that there was no way the pop-ups could have been opened without the user willfully clicking on links to cause them to appear. The detective's expertise was derived from a pair of two-week FBI training programs on computer crime issues, along with an orientation program for the use of ComputerCOP Pro. That orientation involved an hour of training followed by a test, generally administered over the phone.

The defense tried to argue that the teacher had not been surfing for porn. Rather, the porn pop-ups had appeared as a result of malware that had wormed its way onto the computer. The defense's case turned around the testimony of their own expert witness, Herb Horner, owner of an IT consulting firm, who had forty years of experience as a software engineer and IT consultant.

Horner had used sophisticated software to examine the computer and had determined that the system had been infected with malware. The school's IT department provided no support or protection for computers infested with malware or obscene content, its firewall license had expired, and the computer used was an antiquated Gateway running Windows 98, a configuration notably vulnerable to infection by spyware, viruses, and other such programs. The sort of malware on the computer was the sort that would open up pop-ups for porn sites regardless of the content of the site visited. Moreover, to a relatively primitive forensic program like ComputerCOP Pro, the manner that the malware used to open pop-ups would be indistinguishable from a user clicking on a link.

Horner determined that the malware had been installed on the computer several days before the incident, when the computer was not under the substitute teacher's control. He further found that the pop-ups began appearing about 45 minutes before class started, when a user (it's uncertain whether this was the substitute or a student) accessed the site

The defense's case seems to have been fairly air-tight; it explains how the appearance of the porn was not the substitute's fault and it explains the results that the prosecution's expert came up with in a manner that exonerates the defendant. At trial, however, the defense was forbidden from presenting any evidence relating to malware or similar other programs that might provide an alternative explanation for why the pop-ups appeared. Horner was permitted to testify, but his testimony was extremely limited; he was allowed to present only 2 of his 40 prepared slides, and could not discuss malware at all.

The jury never heard anything about malware and the defense could therefore offer no explanation for why the pop-ups appeared. In the absence of any case by the defense, the jury accepted the prosecution's argument that the substitute was surfing for porn. It found the teacher guilty of four counts of exposing children to pornography, each count of which carries a maximum penalty of 10 years in prison.

So why did the court exclude any arguments and evidence related to malware? Because the defense attorney failed to inform the prosecution of his planned malware defense prior to trial, as required by the rules of procedure. Accordingly, because the defense failed to raise the defense before trial, it was forbidden to raise it during the trial.

This illustrates why the duty of competence is the most fundamental of the professional responsibilities. This teacher is almost certainly innocent, and the defense prepared would probably have cleared her, but the defense attorney failed to meet a deadline, or failed to prepare an adequate brief. Because her attorney screwed up on a seemingly picayune filing requirement, the teacher now faces up to forty years in prison and her professional life has been ruined.

Attorneys have to be familiar with a web of rules governing their relationship with their clients, covering confidentiality, conflicts of interest, duties to the tribunal, and so on. But the most fundamental is the duty to be competent. Making a stupid mistake like this can cost a client dearly.


That is STUPID. The teacher should have sixteen different kinds of recourse against the negligence of her attorney, there should be some way that an attorney who has disqualified his or her entire argument on such a technicality can make up for it during the trial while still satisfying reasonable disclosure requirements, and, in conclusion, jesus h. christ this is dumb.



It's hard to tell exactly what went down in terms of the attorney's failure. On the one extreme, it could be that the attorney missed a simple filing deadline. Perhaps he had to get his brief filed by 3:00 PM on a Friday and he didn't fax it until 3:02 PM. At the other extreme, maybe the defense attorney didn't even mention the possibility of malware until he asked a question to the police detective. Maybe he didn't seriously discuss malware until his case began. In that case, the judicial process gets massively fucked up by allowing him to continue. The only equitable solution I can see in that circumstance would be to have a mistrial declared and start the whole thing over, but procedurally that almost certainly wouldn't happen. You generally can't petition for a mistrial on the basis of your own fuck-up (or else you could delay completion of a trial for decades), so the defense couldn't get a mistrial declared. And given that exclusion worked in the prosecution's favor they didn't have an incentive to petition for a mistrial; at that point, the defense had handed them an easy conviction on a platter.

All told, the teacher would rather that things were on the small fuck-up side rather than the big fuck-up. If it was a minor technicality, then she can probably appeal exclusion as an unreasonable remedy and get a new trial. If the fuck-up was big, she can probably win a civil suit against her attorney, but she also doesn't have much to appeal and will face criminal punishment. You can only appeal defects on the part of the court, not on the part of your attorney.

We can't really know where the fuck-up came without more information, and the attorney in this case, as you'll note from the article, has completely clammed up. His silence does make some legitimate sense; there's a strong duty of attorney-client confidentiality, and it's better to err on the side of too little disclosure rather than too much (Especially when the attorney's already probably facing liability for failing his duty of competence). But it's also probably him covering his ass. Apparently he's a personal injury attorney by trade and hadn't handled many criminal cases, which may explain part of it. Also, generally, personal injury attorneys aren't known for being the apex of the legal profession.

Of course, this doesn't even get into the big policy question of "even if she were surfing for porn, why the hell would that justify as much as 40 years in prison?"

Actually, having said that, she could probably appeal on an Ineffective Assistance of Counsel claim. According to Strickland v. Washington, this means that she would have to show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." She could probably show that on appeal.

Incidentally, she is appealing, and is apparently using a different lawyer than the one she retained for her trial.

Good on both of your last two counts: that she's using a different lawyer and that there is a precedent and procedure for appealing on the grounds that your lawyer has utterly failed to make your case.

I do agree that the possible sentence is a bit outrageous. People kill people and get less than a decade of prison time sometimes, but thank goodness we're not being too soft on anyone who shows kids things they might see anyway if they walked in on their parents. I suspect this is one of those things that a visitor from 100 years ago and/or any given developing country would regard as evidence that we have all gone dangerously insane.

Realistically, it's unlikely she'll actually get 40 years in prison; that would only happen if she got the maximum 10 year sentence for each count and had to serve them consecutively rather than concurrently. Given that she has no prior convictions, no history of sex crimes, and that the circumstances of this offense are really at the outward bounds of "injury to the morals of children" (I would imagine a less sympathetic example would be someone who deliberately stops children on the way home from school to show them porn), I would actually be surprised if she was sentenced to any jail time at all. Nonetheless: A conviction for four counts of a sex crime (and possibly having to register as a sex offender) are bad enough, particularly since teaching is her profession.

I'd imagine what happened here is that the kids told their parents and the parents went apeshit and complained to the school. The school realized they had a problem and possibly faced a lawsuit by the parents. Therefore, they decided that the easiest way to shift blame was to place it on the substitute teacher. She wasn't a regular teacher, so it wouldn't be too great a loss, and they could claim that the rogue substitue was outside of their control and they couldn't possibly be responsible for the porn. I don't know where the criminal charges came from, if the parents complained or the school.

Interestingly, the school probably is actually responsible for the whole incident. They let their firewall lapse, which, coupled with the lax anti-virus and anti-spyware systems they have, probably puts them in violation of federal regulations on internet security in public schools. Which may be all the more reason why they were interested in letting someone else take the fall.

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This page contains a single entry by Zach published on January 21, 2007 3:37 PM.

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