X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
If you practice criminal law, you’d better get used to the ever-increasing presence of people like Mike Morris in the process of justice. Just as serologists, ballistics experts and medical examiners are part and parcel of many criminal trials, Morris’ expertise is fast becoming equally as important. Morris, a special agent for the Federal Bureau of Investigation, is an expert in computer forensics. He heads a computer forensics laboratory that opened this year in conjunction with the Office of the U.S. Attorney for the Northern District of Texas. The downtown Dallas lab serves as a resource for police officials in a 132-county area in North Texas. A legion of local police departments have lent their officers to the lab to help examine computer hard drives for criminal evidence. The lab is only the second of its type in the nation. Once used mainly in kiddie porn, hacker and fraud cases, computer evidence is now being examined in a broader spectrum of criminal cases. For example, drug trafficking, illegal immigration and even murder cases have all had computers admitted into evidence recently in Texas. Along with blood, fingerprints and shell casings, police are also now likely to examine the computer in a murder victim’s home, Morris says. An e-mail from a jilted lover, for example, may put the police on the path to a suspect. “We’re finding more and more cases where the computer information shows intent,” Morris says. “You can apply it to anything,” says Joel Payne, a Carrollton police detective assigned to the Dallas computer forensics lab. “If you need to verify an alibi, you can check it on the computer” assuming a person says they were on a computer when a crime was committed. After the computer is processed, Morris, Payne and other computer forensic examiners eventually are called by prosecutors to explain to juries how such evidence is gathered and processed. “Part of our job is to educate jurors about how a computer stores files,” Morris says. “It may be critical to let the jury know how a file was stored.” While computer evidence has been dissected and introduced for years in civil cases such as trade secret disputes and intellectual property battles, it’s only recently come into its own in criminal trials. As the price of computers comes down, more people have them — including criminals, lawyers say. Instead of by telephone, more illegal transactions are performed on computers by e-mail. While criminals often think their e-mails are eventually erased from a computer’s memory banks, they are easily retrieved by a trained computer forensic examiner, experts say. Naturally, it’s challenging for prosecutors to present such technical evidence to juries. Proving the “chain of custody” of that evidence — ensuring that it wasn’t altered by police investigators — is especially crucial with computer evidence. “You’re dealing with digital information which is the most fragile information known to the courtroom,” says Brian Flood, chief prosecutor of the Dallas County District Attorney’s Office’s Specialized Crime Unit. “By turning on the computer, you can alter the information. You have to convince the jury that you are competent and didn’t alter the evidence.” What can appear to be rock-solid evidence can be easily attacked by a crafty defense attorney, Flood says. “The first thing that they are going to attack is [that] their client didn’t put that information in the computer,” Flood says. “That it’s just mixed up data, therefore it’s not reliable.” This is where forensic testimony becomes crucial, Morris says. “When they say, �I didn’t mean to download that file,’ it’s tough to say that when they’ve had a file created for that download,” he says. But like any forensic analysis, the examination can just as easily damage the prosecution’s case as strengthen it, Morris says. “We’re not an investigative arm for anybody. We’re a forensic lab,” he says. “We may find evidence that may help somebody or hurt somebody. Our job is to do an impartial examination of evidence.” DEFENDING COMPUTER EVIDENCE For criminal-defense attorneys, computer evidence can be important long before a case goes to trial. Defense lawyer Mark Werbner, who handles white-collar crime cases as a partner in Dallas’ Sayles, Lidji & Werbner, says what a lawyer doesn’t know about computers can be detrimental to the client. “You’ve got to use all of the benefits of technology” before turning over a client’s computer to the government as evidence, Werbner says. “Some computer hard drives save not just e-mails but entire correspondence,” Werbner says. “If you’re used to having everything in a three-ring notebook binder, it can be a new experience.” Tom Melsheimer, a partner in the Dallas office of Fish & Richardson, has handled computer evidence in both high-tech civil trials and in defending a client accused of operating an international immigration smuggling ring. Big civil clients have the money to have computer evidence prepared and examined by experts; criminal defendants usually don’t, Melsheimer says. “It’s a very, very expensive and time-consuming process,” Melsheimer says. “Unless you know that there’s something out there … you’re just going out there trolling for something that’s recoverable. It’s a ton of work.” Melsheimer’s client accepted a plea bargain, eliminating the need for an expert to comb through the evidence against him. But even finding an expert as a criminal lawyer can be difficult. You can’t just open the Yellow Pages and locate one, says Dallas’ Tom Mills, a criminal-defense attorney who’s also chairman of the Computer Crime and Security Issues Subcommittee of the American Bar Association’s Intellectual Property Section. “I would know where to look, but I don’t know if the average lawyer would know,” says Mills, of Mills, Presby & Associates. It’s difficult to rebut that evidence without expert help, Mills says. “Unless you really get an education in forensic computing, it’s like a different language,” he says. “The people that are making the best strides and making lawyers understand are the big five accounting firms. They have become the main resource for the lawyers. But the catch is you have to be able to afford them.” Paul Coggins, U.S. attorney for the Northern District of Texas, pushed to have the computer lab set up in his district to get law enforcement ahead in processing computer evidence. The lab is open as a resource for most police departments in North Texas. Many departments have already been taking advantage of its services. “We had a backlog of 200 computers and a six-month wait to have those searched. We’ve whittled that down to 80,” Coggins says. “That backlog will grow again. I just wanted to make sure that North Texas is poised to handle the most sophisticated cyber crimes in the world. Cyber crimes will be a major part of our workload.” Such cases are filed in both state and federal court. But the larger cases involving multiple defendants in different states are generally filed in federal court because federal officials have broader subpoena powers. Morris has found himself testifying in state cases in such far-flung locations as rural Bonham in a child pornography trial. “The jury was nodding along and following the information,” Morris says. “While I was testifying, the defense objected twice,” Morris says. “The judge said, �This is interesting. I want to learn about this.’ “ Notes Morris, The objection was overruled.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.