The Laptop, Child Exploitation and the Expert Witness

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After a jury convicted him of five counts of child exploitation in violation of Mississippi Statutes § 97-5-33, John Bartholomew Lowe appealed.  Lowe v. State, 2013 WL 6503609 (Supreme Court of Mississippi 2013). 

As this news story notes, the trial judge “gave Lowe a life sentence for each count.” Lowe then appealed twice, first to the Mississippi Court of Appeals and then, after that court affirmed his conviction, to the state supreme court. Lowe v. State, supra. 

Each count “alleged that on June 6, 2009, Lowe downloaded sexually explicit images or videos of children under the age of eighteen via the internet to his laptop computer.”  Lowe v. State, supra.  After he was charged, the judge “entered an arraignment order, determining that Lowe was indigent and appointing him counsel.”  Lowe v. State, supra. 

The opinion does not explain precisely how the prosecution arose, but it does outline the evidence presented at the trial, which began on April 11, 2011:

Marie Taylor testified she and her two daughters had resided with Lowe for some time. She testified that they each used Lowe's computer under various user names and passwords. Further, she explained Lowe never refused anyone access to his computer and that, on at least one occasion during a party, numerous visitors had access to the computer. Finally, she testified that, to her knowledge, [he] had never downloaded pornography.

Lowe's employer testified that on June 6, 2010, Lowe worked alone at a Masonite Corporation plant. The investigating officer testified that he and the State's computer forensics expert drove around near that plant and found several unprotected internet networks that Lowe could have used to download the content.

Finally, Tom Thomas, the State's expert, testified that all five of the files in question were saved under Lowe's user name and password. He also testified that it appeared the files were downloaded through unprotected networks, including an unprotected network at a McDonald's near the Masonite plant. Finally, Thomas opined that the `digital fingerprint’ pointed to Lowe as the individual who downloaded the files. 

Thomas did acknowledge, however, that someone could have placed the content on Lowe's computer from a different computer and that someone else could have downloaded the content using Lowe's user name and password. But Thomas testified that, in his opinion, neither of those was likely here.

Lowe v. State, supra.    

According to the opinion, Lowe

contended that several others had access to his computer, and that someone else had downloaded the material. He requested funds to hire an expert to assist him in refuting the opinions of the State's expert. 

Lowe v. State, supra.   Thomas, who testified for the prosecution at trial, “performed a forensic examination of Lowe's laptop for the State”, which provided the basis for his testimony.  Lowe v. State, supra.  

Since Lowe and his attorney were clearly aware of the role Thomas’ examination and testimony would play at the trial, Lowe initially raised his need for

an expert in a motion for continuance filed March 18, 2010. Therein, Lowe argued that he needed additional time to prepare his defense so that he could obtain an expert to examine the computer's hard drive. That same day, Lowe filed a motion for funds to hire a computer expert. In that motion, Lowe argued that, because the State's expert had examined his hard drive and allegedly had found illegal material, he needed an expert to refute those allegations. He informed the court that he was an indigent defendant and would be unable to afford to pay his own expert.

Lowe informed the court an expert would be necessary to `examine the hard drive which is alleged to have come from his computer to determine who could have downloaded the pictures and video clips onto his computer’ and `to determine when the material was downloaded and under whose user name and password the alleged child pornography was accessed.’ Lowe averred that his expert was necessary `to properly meet the charges against him,’ and that granting a continuance and providing funds to obtain an expert would cause no harm to the State.

Finally, Lowe presented an estimate of $1,500 as the cost to obtain the necessary expert. Thereafter, at a motion hearing before the trial court, the State agreed to a continuance so Lowe could attempt to obtain funds for an expert and review discovery, but the trial court failed to rule on the motion for funds.

Then, on May 27, 2010, Lowe filed a second motion for continuance. In this motion, Lowe asserted that, following his previous motion for funds, the trial court had instructed Lowe's counsel to speak with the State's expert. Lowe informed the court that the State's expert had refused to discuss the specifics of his forensic examination and had agreed to meet with Lowe's counsel less than two weeks before trial. Lowe averred that, without an expert of his own, counsel would lack the requisite knowledge to question the State's expert properly.

Lowe also reasserted his prior argument that he required an expert `to determine the presence or absence of other user names and passwords” and “the time the alleged pornography was added to the computer.’ Finally, Lowe argued that a continuance was `absolutely necessary’ so that he could obtain an expert and give that expert the requisite time to analyze the hard drive.

Lowe v. State, supra.  

On June 3, 2010, the trial judge “denied Lowe's motion for expert funds” and on June 8 he “granted Lowe's continuance following a hearing on that motion.”  Lowe v. State, supra. During that hearing, the judge told “Lowe's counsel he needed to consult with the State's expert before the court would burden the State with funding a defense expert.” Lowe v. State, supra.   

Lowe’s attorney told the judge “he could not adequately prepare to question the State's expert without the knowledge of a defense expert.” Lowe v. State, supra. On November 9, 2010, the judge “entered a second order denying expert funds.” Lowe v. State, supra. Lowe went to trial without an expert witness. Lowe v. State, supra.  

The Supreme Court began its analysis of Lowe’s appeal by noting that the U.S.

Supreme Court `has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.’ We have echoed this principle, holding that a trial court must provide expert assistance to an indigent defendant when denial of such assistance would render the trial fundamentally unfair.

Lowe v. State, supra (quoting Ake v. Oklahoma, 470 U.S. 68(1985)).

The court also explained that “the determination of whether an indigent defendant must be provided expert funding is made on a case-by-case basis, and `[a] defendant must demonstrate a substantial need in order to justify the trial court expending public funds for an expert to assist the defense.’”  Lowe v. State, supra (quoting Richardson v. State, 767 So.2d 195 (Mississippi Supreme Court 2000)).  The Court of Appeals affirmed Lowe’s conviction and sentence because it found he failed to demonstrate substantial need.  Lowe v. State, supra.

In Ake v. Oklahoma, supra, the Supreme Court explained why indigent defendants have a Constitutional right to the fund needed to hire essential expert witnesses:

`This elementary principle, grounded in significant part on the 14th Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.’

Lowe v. State, supra (quoting Ake v. Oklahoma, supra).

The Ake Court outlined three factors courts are to use in determining whether access to an expert witness is “a basic tool of an adequate defense.”  Lowe v. State, supra.

`The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.’

Lowe v. State, supra (quoting Ake v. Oklahoma, supra). The Ake Court also noted that the defendant’s interest in accurate criminal proceedings is “`uniquely compelling’” and that the State’s only interest in not funding a defense expert is “the insubstantial interest of avoiding the financial cost.”  Lowe v. State, supra.

The Supreme Court then took up Lowe’s case, noting that here, the prosecution could

not have convicted Lowe simply by showing the sexually explicit images and videos were on his computer. It had the burden to prove beyond a reasonable doubt that Lowe, himself, downloaded them. 

The State presented its case without the testimony of any lay witness purporting to have knowledge that Lowe downloaded the files in question. Instead, the State relied solely on the opinions of its expert witness to establish that the files existed on Lowe's laptop and that Lowe, rather than another individual using his laptop, downloaded the images from the internet.

Anticipating this reliance on expert testimony by the State, Lowe's counsel repeatedly explained to the trial court its specific needs for an independent expert in computer forensics. Lowe's counsel argued that he needed an expert to examine the computer's hard drive and to refute the State expert's allegations that the hard drive contained pornographic images of children. He further argued that an expert was necessary to determine who downloaded the content and under what user name and password.

Lowe v. State, supra.

It also noted that as the U.S. Supreme Court

found vitally important in Ake, counsel argued Lowe needed an expert to provide him with the requisite information to adequately question the State's expert. Ironically, both the trial court and the Court of Appeals seem to opine that Lowe's counsel should have been able to articulate problems with the State expert's opinion by questioning that expert pretrial, but before obtaining an expert to provide the necessary knowledge to know what questions to ask.

This view presupposes that the State's expert would have assisted Lowe in deciding whether his opinions could be successfully attacked by another expert. Stated another way, had Lowe's counsel asked the State's expert: `Sir, do you think another expert appointed by the court to assist Lowe could successfully attack some of your opinion?’ we think the answer -- which probably would have been `no’ -- would have been unhelpful in our analysis.

Lowe v. State, supra.

The court therefore found that

[c]onsidering each of the reasons articulated by trial counsel, the probable value of an independent defense expert must weigh heavily in favor of a substantial need for a state-funded independent expert. And, as in Ake, both the State and the defendant have interest in an accurate resolution of this criminal case. The State's interest in avoiding the cost of providing an independent expert cannot overcome those needs.

Where, as here, the State relies on expert testimony alone to connect the defendant to the offense charged, an independent defense expert is part of the `raw materials integral to building an effective defense,’ and the trial judge deprives an indigent defendant of a fundamentally fair trial by refusing him funds to procure such an expert.

Lowe v. State, supra (quoting Ake v. Oklahoma, supra).

The Supreme Court therefore reversed the Court of Appeals’ judgment affirming Lowe’s conviction, reversed the conviction and remanded the case for a new trial.  Lowe v. State, supra.  It also directed the trial judge to “provide Lowe funds to obtain an expert in computer forensics.”  Lowe v. State, supra.