Last week, a Gwinnett County Superior Court judge granted a certificate of immediate review to Kevin Scott Morris, a man facing 45 felony counts of possessing child pornography.
Morris claims that the district attorney’s office interfered with his due process rights when prosecutors prevented Morris from conducting an off-site examination of the evidence against him.
Morris, a former vice president of the Gwinnett County Chamber of Commerce, was arrested in 2007 after law enforcement officers allegedly discovered sexually explicit images of children on his personal computer. After the district attorney’s office concluded its investigation, Morris sought to have his experts conduct their own review of the hard drive.
Pursuant to a protective order issued in March, Morris has the right to have his own computer forensics expert examine this evidence. Specifically, the order requires the prosecution to provide the defense with a mirror image of the hard drive. The issue is that the defense expert uses sophisticated computer equipment to conduct his review and it would be impractical for the expert to bring this equipment to the district attorney’s office every time he examines the evidence.
The trial court held that Morris’ expert cannot review the evidence outside the confines of the district attorney’s office unless a federal prosecutor can assure the court that he can remove the evidence without violating federal laws regarding the distribution or possession of child pornography. As none of the three U.S. attorney’s offices in Georgia have been willing to provide such an assurance, the court will not permit an off-site examination of the evidence by the defense.
Restrictions such as these placed on the examination of computer evidence in child pornography cases certainly put the defense at a disadvantage. While the State has unfettered access to the hard drives, the defense is limited to viewing them in a room in the district attorney’s office on their time and at their direction. As a result, the defense expert will typically need to make numerous trips in order to conduct just a few hours of work. That makes it more costly to the defendant. A second issue arises when the defense expert wishes to put some of the “non-contraband” files on a disc for further review. While this is typically permitted, doing so risks exposing the defense work product.
In order to obtain off-site access to the computer evidence, the defense can file a “Motion to Compel Discovery and Inspection” in which we request a mirror image of each hard drive in possession of the prosecution. If the district attorney’s office refuses to permit the defense to examine the evidence off-site, the defense can enumerate the restrictions imposed on its investigation, including limitations on the examination and excessive costs incurred from the expert’s travel to and from the district attorney’s office. The trial court does, in fact, have discretion to conclude that the defense would be unjustly prejudiced if not afforded off-site access to the evidence. See, United States v. Hill, 322 F.Supp.2d 1081 (C.D. Cal. 2004).
These motions, however, have been difficult to win in Georgia since our appellate courts have yet to formally decide the issue. Georgia criminal defense attorneys, especially those who handle child pornography cases, are keeping a close eye on Morris’ case with the hope that a favorable decision can help level the playing field in these cases.
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