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Computer forensics helped get Dera Jones convicted in December of threatening to kill a federal judge. Problems with the testimony � and how prosecutors disclosed it � may get her a new trial. In a motion for a new trial filed Feb. 27, Jones’ lawyer, Assistant Federal Public Defender Elizabeth Falk, took umbrage with the timing of federal prosecutors’ expert disclosure and the content of the expert’s findings. A threatening statement Jones left on an America Online message board against the Florida judge in the Terri Schiavo case led to her conviction, bolstered by a computer expert who helped impeach the credibility of the defense. Falk argued in court filings that the late production of the expert’s testimony � delivered at 9 p.m. the night before the trial � violated a rule intended to prevent a situation “where untested, unchallenged forensics conclusions are presented through an �expert’ to a jury as the unrebuttable truth,” because defense lawyers don’t have time to hire their own witness to offer similar expertise. It’s not clear that the San Francisco resident had the means or intention of following up on her statement posted last year on the online message board � that if Terri Schiavo died, “I WILL KILL MICHAEL SCHIAVO AND THE JUDGE. THIS IS FOR REAL!!” Jones’ defense, that the statement was made in the heat of the moment after trolling a Schiavo message board, was contradicted by government witness Jan Hayes, who said Jones’ hard drive bore no evidence of that heated Web use. Jones’ threat was seen by a Maine college professor, who forwarded it to the FBI. Also, the judge in question, Florida federal Judge James Whittemore, happened to be on the America Online message board when the message was posted. Jones’ reaction to the controversial case, in which legislators were trying to keep Schiavo’s husband, Michael, from pulling the plug on his brain-dead wife, got her convicted in San Francisco federal court of sending a death threat across state lines. She faces up to five years in prison. Falk attached to her new-trial motion the testimony of a high-profile computer specialist hired by the defense after the verdict. The expert argues that the prosecution expert failed to perform a proper examination of Jones’ hard drive, missing evidence that supported Jones’ defense. Hayes has been an issue since the first day of trial, when Falk objected to Assistant U.S. Attorney Robert Rees’ late disclosure of Hayes’ testimony. It’s not clear why the information was produced so late; Rees would not comment on the case on Friday, and Falk wrote in court filings that Rees gave no explanation at the time. On the first day of trial, Falk moved to put proceedings on hold so she could find a rebuttal expert. But Judge Charles Breyer, after acknowledging a possible evidence rule violation, allowed only a brief delay, and the proceedings moved on. Court filings indicate that Falk � and, apparently, Breyer � were under the impression that the government witness would testify only to how documents were obtained from Jones’ hard drive, and would offer little substantive ammunition to prosecutors. Instead, Hayes’ testimony turned into a surprisingly integral piece of the government’s attack on Jones’ credibility. Hayes said that, contrary to the defense assertion that viewing messages on AOL had worked Jones into a rage, her hard drive indicated she had barely logged on prior to the message. That testimony, Falk wrote in her motion for a new trial, “undercut Ms. Jones’ credibility with the jury, as she had testified that she had reviewed far more AOL Web board history than was indicated by Hayes’ report.” After the trial, Breyer also seemed to take the unrebutted testimony seriously. “I am concerned in this case about the issues related to the disclosure,” the judge said after the verdict. “I want to pay particular attention to that matter and whether it is the basis for a new trial because I do consider it a serious issue that has to be addressed,” he added. Falk was out of town this week and could not be reached for comment, and Federal Public Defender Barry Portman said his office wouldn’t comment on the pending case. According to Falk’s court filings, timing wasn’t the only problem with the government testimony: the defense witness hired post-verdict says it was wrong. In her request for a new trial, Falk writes that computer expert Mark Seiden examined Jones’ hard drive and found that Hayes had failed to look in the right place for files on AOL activity. “In my opinion as an expert on computer security, there are both technical flaws and technical questions” raised by Hayes’ evidence, Seiden wrote in a court filing. “As a result,” he added, Rees’ argument “drew conclusions of fact that do not appear to be true.” Specifically, Seiden said, “in my opinion the jury was severely misled that the evidence presented by the government was the only evidence of AOL access.” In fact, Seiden said, his examination of the hard drive uncovered thousands of hits on the Schiavo message board, apparently supporting Jones’ testimony that she had spent quite a bit of time reading it. Luke Macaulay, a spokesman for the U.S. attorney’s office, wrote in a Friday e-mail that “there are motions pending before the court. Our response to these motions is due on March 22.” A hearing on the motion for a new trial is set for April 5.

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