Injustice for all

5

“Would you state your name for the record, please?”

The next morning I’m standing at a lectern in Criminal Court in Jonesborough, Tennessee, the seat of Washington County and the oldest town in the state. There are dozens of spectators beyond the bar, all anxiously awaiting the outcome of the hearing. The witness on the stand is an intelligent, frail-looking twenty-five-year-old with an acne-scarred face and straight, shoulder-length brown hair parted in the middle. He leans toward the microphone.

“My name is David Dillinger,” he says. I notice a quake in his voice. His anxiety is understandable since he’s traveled thousands of miles and is a stranger among us, but anxiety seems to be a way of life for Dillinger. When I interviewed him before the hearing, he had to leave the room half a dozen times to smoke.

“Where do you live, Mr. Dillinger?”

“I live at 401 West Fifth Avenue, Vancouver, British Columbia, Canada.”

“And what do you do for a living?”

“I’m a computer programmer for Royal National Bank.”

“Do you know the defendant?”

Dillinger shifts uneasily in the chair and looks over at the man sitting at the defense table.

“No. I don’t know him. I’ve never met him.”

Douglas “Buddy” Carver stares straight ahead from his spot at the defense table. There isn’t a trace of emotion on his sixty-year-old face. His thinning white hair has been combed to the side and held firmly in place by a sticky product of some kind, and he’s wearing a loud, red sport coat. Carver is a slumlord, one of the wealthiest landowners in northeast Tennessee. He’s also an extremely popular deacon at one of the largest Methodist churches in Johnson City and hosts a local television show called Bringing the Light that airs at five o’clock every Sunday afternoon. Most of the people in the gallery are supportive members of his church. They stared at me coldly when I walked into the courtroom.

“Would you please explain to the court how you became involved in this case, Mr. Dillinger?” I ask.

“I received notice that Mr. Carver had downloaded some images onto his computer.”

“You say you received notice. How were you notified?”

“By my computer.”

“Can you explain to the court how it worked?”

“I attached what’s known as a Trojan Horse virus to some pornographic material on an Internet Web site. The pornographic material depicted children. When the images were downloaded, the virus notified me. I was then able to get into the computer of whoever downloaded the images. From there, I was able to find out who was doing the downloading.”

“How many pornographic images of children were downloaded?”

“Twelve the day I found out about it, but when I got into the computer, there were about fifteen hundred more.”

“And what did you do, Mr. Dillinger?”

“I called Pedofind. It’s a nonprofit organization that tracks pedophiles in the United States and Canada. I gave them the information I had.”

“And after that?”

“All I know is that Mr. Carver wound up getting arrested, and here I am today.”

Pedofind had contacted the Johnson City Police Department, and they, in turn, had followed up. They gathered enough information to get a search warrant, executed the warrant at Buddy Carver’s home a week later, seized his computer, and arrested him a couple of days after that.

“Did you have any contact regarding Mr. Carver with any law enforcement agency in Tennessee before you found these images on his computer?” I ask.

“No.”

“Did you have any contact with any law enforcement agency anywhere about Mr. Carver before you found these images?”

“No.”

“Thank you, Mr. Dillinger.”

Cut-and-dried, I think. Straightforward. Nothing to attack. But I know there’s never anything cut- and-dried in the field of criminal law. I also know I’m in front of a judge who is strangely sympathetic to sex offenders in general and pedophiles in particular. I suspect he and the defendant might have something in common.

Judge Green has been taking notes and listening intently to the testimony, his glasses perched precariously on his long, thin nose. Buddy Carver’s lawyer is a fifty-year-old named William Kay who brownnoses judges so blatantly that everyone calls him Fudge. He has filed a motion asking the judge to throw out all of our evidence (the pornographic images) because, he alleges, his client’s rights under the Fourth Amendment to the United States Constitution have been violated. Specifically, Fudge is arguing that David Dillinger illegally searched Carver’s computer, thereby requiring the court to exclude the evidence he found and subsequently turned over to Pedofind.

Were David Dillinger a police officer, Kay’s argument would have legs. But Dillinger is a private citizen who took it upon himself to intervene in a situation that offended him personally. The guarantees under the Fourth Amendment don’t extend to searches conducted by private individuals-only to searches conducted by agents of the government. Fudge is arguing that because Dillinger contacted authorities as soon as he found the pornographic material and sought to have Carver prosecuted, he was acting as an agent of the government and was therefore required to obtain a warrant before searching the files of Carver’s computer. Fudge is wrong, but that doesn’t mean a thing.

“Cross, Mr. Kay?” Judge Green asks, and Kay gets up. He’s short and pudgy. His brown hair is matted and looks as though he just got out of bed.

“Mr. Dillinger,” Kay says as he waddles around the table toward the lectern, “why did you attach this virus to this particular kind of material?”

“Because it offends me.”

“How did you know where to find it?”

“Excuse me?”

I’m watching Dillinger intently. He sits on his hands and his face flushes. He’s already becoming flustered, so I stand.

“Objection, relevance,” I say. “How Mr. Dillinger originally found the material has nothing to do with whether Mr. Carver downloaded it to his computer.”

“Overruled,” Judge Green snarls. “Sit down, Mr. Dillard.”

“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 genuflect.

“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.”