Injustice for all jd-3

by Scott Pratt

  “Here’s the thing, Mr. Dillinger,” Kay says. “I wouldn’t know how to find child porn if I wanted to, and I’m guessing everyone else in this courtroom is the same way. I mean, you don’t just log on to Google and type in ‘child pornography,’ do you? That seems like a surefire way to get a visit from the feds. So how did you know where to find it so you could attach your virus to it?”

  “It isn’t that difficult,” Dillinger says.

  “Explain it to us.”

  Dillinger looks at me for help, but the judge has already made his feelings known on the objection. Dillinger has inserted himself into this situation, and Judge Green and William Kay are making sure he has to live with the consequences.

  “People find it through chat rooms, mostly,” Dillinger says reluctantly.

  “And you have personal experience with this?”

  “Yes.”

  “Why? Are you some kind of pervert?”

  I could stand and voice the objection of badgering or argumentative, but I don’t want Dillinger to come across as being spineless. I decide to let him handle it himself. His eyes tighten, and he leans forward.

  “I believe your client is the pervert in this room,” he says angrily. Attaboy. Don’t let him intimidate you.

  Kay looks immediately to the judge. “Will the court instruct the witness to answer the question, please?”

  “Answer the question,” Green says curtly.

  “I don’t remember the question,” Dillinger snaps.

  “The question is why,” Kay says, starting to re-frame the query. “Why do you know how to locate child pornography on the Internet?”

  Dillinger pauses, and I feel for him. I’ve asked him the same question, of course, during our preparation for the hearing. It initially seemed as odd to me as it does to Kay, but once I heard the answer, I understood. Kay should have learned the answer himself before he asked such a dangerous question. The word why can be a powder keg in the courtroom.

  “I know how to locate it because I was raped as a child by a man who showed me the same kind of smut that your client downloaded onto his computer.”

  Dillinger’s tone is one of indignation and disgust. He lifts his chin and folds his arms, glaring at Kay, who is surprised but manages to recover quickly.

  “So what you’re telling me is that your motivation in finding child pornography on the Internet and attaching this virus to it is anger, correct?” Kay says.

  “I don’t know.”

  “Anger, and maybe revenge? You regard yourself as a cyber vigilante of some sort?”

  “I don’t regard myself as anything. I just find the perverts and report them.”

  “So you’ve done this before? How many times?”

  “I don’t know exactly. A few.”

  “Would a few be more than ten?”

  “Not that many.”

  “More than five?”

  “Maybe five. Maybe six. I don’t keep a log.”

  “And these reports, do they usually wind up in the hands of the police?”

  “Sometimes. I guess so.”

  “So what you’re doing is helping the police find people who might be pedophiles; isn’t that right?”

  “What I’m doing is alerting Pedofind when illegal images of child pornography are downloaded from the Internet.”

  I let out a slow, deep breath. Dillinger is doing fine. He isn’t letting Kay back him into a corner on the issue of whether he’s working specifically for the police.

  “But Pedofind reports what you tell them to the police, don’t they? Isn’t that the point?”

  “They do what they do.”

  “Of course that’s the point,” Kay says. “You wouldn’t report it to them if you thought they were going to ignore you, would you, Mr. Dillinger?”

  “I don’t know.”

  “Let me ask you this. What’s to keep you from attaching your Trojan Horse virus to some other kind of file, something harmless, and then going into Mr. Carver’s computer and downloading these images yourself?”

  I pop to my feet again. “Objection. Foundation. There’s absolutely no evidence in the record to suggest that Mr. Dillinger did any such thing.”

  “Overruled.”

  “Judge, he’s trying to suggest that Mr. Dillinger picked Mr. Carver randomly out of all the people in the world who have access to the Internet and intentionally set him up. There’s no evidence to support it. It’s ridiculous.”

  “Did I stutter, Mr. Dillard? I said your objection is overruled.”

  “It didn’t happen like that,” Dillinger says. He seems to be nearing his breaking point.

  “But it could, right?” Kay says, holding on to the line of questioning like a bulldog to a forearm.

  “I said it didn’t happen like that.”

  “That’s all I have,” Kay says, and he sits down.

  “Anything else, Mr. Dillard?” Judge Green asks.

  “We rest, Judge.”

  “You can step down, Mr. Dillinger. Do you want to say anything before I rule, Mr. Dillard?”

  I’ve already laid out the argument and all the case law for the judge in a brief that I filed two weeks earlier. I’ve called two witnesses prior to Dillinger. The first was the president of Pedofind, who outlined what the organization does, how they do it, and specifically what happened in this case; the second was the Johnson City detective who investigated the report, obtained the search warrant, and arrested Buddy Carver. Both of them testified that Dillinger was not working on their behalf when he hacked into Carver’s computer. The detective testified that she’d never heard of Pedofind or Dillinger prior to the investigation. The Pedofind executive admitted that they’d obtained information from Dillinger before, but that Dillinger received no compensation, no direction, and no encouragement from their organization. He just popped up on their radar every so often and gave them information about suspected pedophiles actively downloading child pornography from the Internet. The Pedofind executive also testified that his company receives no funds from the government-no grants, no loans, no stipends, nothing. The organization is funded entirely by private donations.

  As an aside, I’ve reminded the judge that Dillinger isn’t a citizen of the United States and wasn’t in the country-let alone in the city or the state-when he alerted Pedofind. Therefore, I’ve argued, he could not possibly be acting on behalf of any U.S. governmental agency. The protections of the Constitution simply do not apply.

  I stand up and lay it all out for the judge one last time. He won’t look at me, which is always a bad sign.

  Kay gets up and argues his side of the case again. Pedofind is obviously an agent of the government, he says. They report illegal activities to law enforcement whenever the opportunity arises. Their activities have resulted in the prosecution of more than a dozen pedophiles. Dillinger, he says, is an agent of Pedofind. He’s given them information in the past, they’ve turned it over to government authorities, and the information has resulted in criminal prosecutions. Because both are acting on behalf of the government, the search of Carver’s computer is covered by the Fourth Amendment. A warrant is required. Since there was no warrant, the search is illegal. The evidence must be suppressed.

  When Kay is finished, I experience the same feeling of gloom that I experienced so many times as a defense lawyer. I’m going to lose. The judge’s attitude, his mannerisms during the hearing-his interest when Kay is talking and his distance when I’m talking-have tipped his hand. I know he’s going to rule against me as sure as I know it’s going to rain when a thunderhead rolls in over the mountains to the west.

  “Do you require findings of fact and conclusions of law, Mr. Dillard?”

  I remain seated, unwilling to stand and show him the respect required by tradition because I regard him as a small man in terms of intellect and morality. Despite the fact that he’s sitting above me on his throne and could possibly do the same thing to me that he’s done to Ray Miller, I can’t force myself to genufl
ect.

  “Is there any point?” I mutter from my seat at the table.

  “Speak up!”

  I lift my head and glare at him. “I think you made up your mind before we walked in the door.”

  Judge Green stiffens briefly but manages to control his anger. He knows the press is in the audience. He knows this is a big story. He knows he has a rare chance to deal a blow to the prosecutor’s office and me personally, and he’s relishing it.

  “I am an elected official,” the judge says deliberately, “whose primary responsibility, in my view, is to interpret and uphold the law. The people of this district elected me because they trust me. They’ve trusted me for many years, and I’ve served them faithfully.”

  I drop my head into my hands, certain that this is a preamble to a decision that only he can rationalize. I’ve already considered what I’ll do if he rules against me, and I resign myself to the fact that this battle will be fought elsewhere.

  “However,” Green continues, “a judge must occasionally make a ruling that is not popular. He must do what’s right under the law. He must protect the very foundation of our laws and our government, the Constitution of the United States of America.”

  He’s making dramatic pauses while he speaks. I want to throw up.

  “I hope those who read about this in the newspaper tomorrow morning or watch it on the evening news will understand that this ruling is for all of you. It will protect you from future illegal intrusions into your privacy. There is no doubt in this court’s mind that the state’s primary witness in this case, Mr. David Dillinger, was acting as an agent of the government when he hacked into the defendant’s computer. Mr. Dillinger has testified that he was abused as a child by someone he believes was a pedophile, and that he has undertaken a mission to see that other pedophiles are exposed and brought to justice. In order to accomplish his mission, Mr. Dillinger intrudes on the privacy of other citizens by clandestinely hacking into their computers with the intent to have them prosecuted under the criminal laws of this country. The court finds that the fact that the governmental agencies involved in this particular case were unaware of Mr. Dillinger’s activities is irrelevant. At the very core of it, Mr. Dillinger is a wannabe police officer, a ‘cyber vigilante,’ as Mr. Kay so adroitly pointed out. Mr. Dillinger obviously regards himself as a sort of charitable mercenary, working on behalf of the government without the expectation of compensation or recognition, but in reality, he’s no different than a common burglar. Instead of stealing jewelry, he steals information, and he does so by secretly invading the privacy of his victims’ computers. He then expects his targets to be prosecuted, which in this court’s view, makes him an agent of the government. His warrant-less search of Mr. Carver’s computer was illegal, and any evidence obtained as a result of that search is hereby suppressed.”

  Kay stands. I’m sure he wants to get out of the courtroom as quickly as possible. I also stand and turn to look at Dillinger. I want to apologize to him on behalf of the state of Tennessee, on behalf of the entire U.S. criminal justice system. But he’s already out of his seat, heading for the door. He slams it as he leaves, and the bang rips through the courtroom like a gunshot.

  “Bailiff!” Judge Green shouts. “Stop that man and bring him back here.”

  I fix a stare on the judge as the bailiff hurries out the door. I hear shouting in the hallway. Thirty seconds later, the bailiff walks back through the door, holding Dillinger by the elbow. The look in Dillinger’s eyes is one of fear and humiliation.

  “Bring him to the lectern,” the judge says.

  Dillinger stands before Judge Green, looking down at the lectern.

  “You’re in contempt, Mr. Dillinger. Your punishment is a hundred-dollar fine, payable in the clerk’s office before you leave the building. If you don’t pay it, I’ll have you arrested and jailed. Go back to Canada where you belong, sir. The Canadian government may allow you to invade the privacy of others to your heart’s content, but this is the United States of America. We don’t tolerate such behavior.”

  Dillinger’s shoulders drop, and he walks out of the courtroom like a condemned man. As soon as he leaves, I speak up.

  “In light of your ruling, Judge, the state moves to dismiss the indictment against Mr. Carver.”

  “Really, Mr. Dillard? You mean you don’t plan to appeal?”

  He’s smug. He knows an appeal will take two years. Even if his ruling were reversed-and I feel certain it would be-so many things can happen in two years. Evidence is lost. Witnesses die or move away. They become uncooperative. After what Dillinger’s been through today, I’m certain he won’t return in two years.

  “No, Judge. I’m not going to appeal.”

  “Very well. Case dismissed. Costs taxed to the state. Mr. Carver, you’re free to go.”

  6

  Katie Dean spent two months in the hospital after she was nearly murdered by her father. The blast entered the right side of her chest, smashed her sternum and several ribs, and blew out a large part of her right lung. She didn’t remember what had happened for at least two weeks after the shooting. There was only blackness-a vast hole in her life. She didn’t even remember dreaming.

  When she had finally healed enough to leave the hospital, Katie’s aunt Mary took her to the cemetery. It was mid-October 1992. The weather had turned cold, the wind was howling in off Lake Michigan, and leaves were falling from the trees and swirling in the air like giant, colored snowflakes. Katie’s mother, along with Katie’s brothers and sister, were buried side by side. She knelt and laid fresh cut flowers in front of the headstone that marked her mother’s grave, and she wept so hard her stomach cramped. She couldn’t believe she’d never see them again. She couldn’t believe what Father had done. She wished he’d killed her, too.

  Father’s grave wasn’t there. Aunt Mary said he’d been placed in another cemetery. Katie didn’t ask where it was. Mother always said he was sick, but Katie couldn’t find it in her heart to forgive him for what he did.

  Aunt Mary was Mother’s older sister, and she bore a striking resemblance. She was slender, not very tall, with blond hair, blue eyes, and a kind face. She looked tired most of the time, as though she never got enough sleep. Mother had taken Katie and her brothers and sister to Tennessee to visit Aunt Mary once, not long after Aunt Mary’s husband was killed in a logging accident. She lived in a farmhouse at the base of a mountain near a place called Gatlinburg. Katie was just a little girl, but she remembered they went there late in May, right after Kirk and Kiri got out of school for the summer. Aunt Mary was pregnant.

  It was the first time Katie had ever seen the Great Smoky Mountains and the purple haze that hung over them in the evening. They were so beautiful. She would go out onto the front porch in the evening and sit for hours, just looking up at the massive humps and gentle slopes shrouded in mist. Sometimes after dark the mountains would sparkle with tiny lights, as though thousands of fairies were flying among the leaves on the trees. The image made her think of magic kingdoms, filled with wonder and mystery.

  Aunt Mary took Katie back to her farmhouse in Tennessee the day after she visited her family’s grave sites. Katie supposed Aunt Mary was the only person in the family who wanted her. Father’s parents had both died of cancer before Katie was born. Mother’s mother died of an aneurysm in her lung when Katie was nine. Her grandpa Patrick was still alive, but he’d married another woman and was living in Oregon.

  Katie was sitting in the front seat beside Aunt Mary in the car on the way to her house. They crossed into Tennessee near a town called Jellico. Rain was beating against the windshield, and the tires on the tractor trailers were throwing up huge plumes of water like geysers. Darkness was falling.

  “Katie,” Aunt Mary said, “we don’t have much, but what we have is yours. You’re my daughter now.”

  Katie scooted over and buried her face in Aunt Mary’s shoulder. She started to cry.

  “There, there now,” Aunt Mary said. “Everythi
ng’s going to be all right. I can’t imagine how hard this is for you, child, but you have to keep on going. God chose you to go on living. He chose you, Katie, and for a reason. We don’t know what His reason is yet, but you have to be strong. It’s what God wants, and it’s what your momma would have wanted.”

  Katie had thought a lot about God when she was lying in the hospital, after Aunt Mary told her that everyone in her family was dead. She was angry with Him. Katie and her mother and brothers and sister had gone to church every Sunday morning, and every night since she could remember, Katie knelt down next to her bed and prayed before she went to sleep. Now I lay me down to sleep,

  I pray the Lord my soul to keep.

  If I should die before I wake,

  I pray the Lord my soul to take.

  At the end of the prayer, she always asked God to bless Mother and Father, her sister, and her brothers. If there was anyone she knew who was sick or having problems, she’d ask God to bless them, too. She never asked Him to bless her; she thought it would be selfish. She never asked Him for a thing. Maybe she should have asked Him to keep her family safe.

  When they finally arrived in Tennessee in the middle of the night, Aunt Mary and Katie carried their things inside. The house was dark except for a lamp near the front door. The hardwood floors creaked under Katie’s feet with every step, and the wind was rattling the shutters outside the windows. The house smelled odd, like a doctor’s office.

  A light came on down a short hallway to Katie’s right, and a door opened. A black woman stepped into the hall and walked toward them. The woman stopped and looked down at Katie. She smiled. She had the darkest eyes and the whitest teeth Katie had ever seen, and her face was as shiny and round as a ceramic dinner plate. She was much bigger than Aunt Mary. Her hair was wrapped in a blue bandanna, and she was wearing a faded blue flannel robe.

  Katie heard a muffled sound coming from the other side of the door. It sounded almost like a sheep bawling.

  “Welcome home, Mary,” the black woman said to Aunt Mary. They embraced.