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| Electronic Evidence Case Digest – Search Results |
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Court of Appeals of Ohio.
The STATE of Ohio, Plaintiff-Appellant,
v.
DANIEL BRADY, SR., Defendant-Appellee.
Case No. 2005-A-0085.
April 13, 2007.
Jurisdiction: Court of Appeals of Ohio Date: 4/13/2007 Keywords: Discovery, Computer Forensics, Experts The state of Ohio appealed the trial court’s decision to dismiss all charges against defendant Daniel Brady for pandering obscenity involving a minor. The appeals court upheld the lower court’s dismissal of the charges. After Brady was charged with over 30 counts of pandering obscenity involving a minor, the trial court appointed Dean Boland to serve as Brady’s expert witness. Boland was appointed to determine if the images seized from Brady’s computer were in fact images of real minors as required by Supreme Court’s ruling in Ashcroft v. The Free Speech Coalition. When the trial court appointed Boland as Brady’s expert, the trial court also issued a protective order allowing Boland and Brady’s attorney to possess and transport a disc containing the allegedly illegal images. The same month that the state gave Boland a copy of the disc, the FBI executed a search warrant for Boland’s home and seized the disc as well as other materials. Although the trial court had issued a protective order, federal law did not provide an exception that allowed a “proper person” to possess child pornography as did the corresponding Ohio law. Upon the advice of his counsel, Boland refused to accept another copy of the disc because he was still facing a possible federal indictment. Brady then moved to have his case dismissed because he was denied the assistance of an expert witness, and the trial court granted his motion. On appeal, the stated argued that Brady was not denied access to an expert witness because Boland could still examine the evidence at the prosecutor’s office. Boland testified that he could not conduct his analysis at the prosecutor’s office because the computers were not equipped with the proper software; in addition, Boland stated that he could still be charged with receiving child pornography, under federal law, even if he was in the prosecutor’s office. The appeals court concluded that, due to circumstances beyond his control, Brady was denied the assistance of an expert witness, and without the services of an expert, Brady could not receive a fair trial. Accordingly, the appeals court affirmed the lower court’s decision. The dissent, however, argued that the trial court’s dismissal of the charges was premature. The dissent claimed that the trial court could not conclude prior to trial that Brady would not receive a fair trial.
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