Tech Expert Witness Avoids Jail, Loses Bankruptcy Bid

Serving as an expert witness can be rewarding, and financially lucrative, but those who serve as experts have no blanket immunity for their actions, as in this instance where the expert would have preferred bankruptcy to the ultimate outcome.

In re: Boland (No. 19-3211, Dec. 11. 2019), the US Court of Appeals for the Sixth Circuit reversed a bankruptcy court's decision discharging a $300,000 civil judgment against Dean Boland for his actions as a technology expert witness.

Boland was an Ohio attorney who served defendants as an expert witness in child pornography cases. Boland created exhibits to support the argument that defendants did not knowingly possess child pornography. The exhibits were a before-and-after set of photos: the “before” being exhibits of stock photos Boland found online of two young girls; the “after” exhibits being photos Boland digitally morphed to show the two young girls engaged in sexual acts. Boland would then testify that, if he could so easily create such “doctored” pornography, then the pornography the defendants possessed could have been “doctored” — “there's just no way of knowing whether real children are depicted in pornography found on the internet.”

After he testified at a trial in Oklahoma, the prosecutors claimed that the “after” exhibits were actionable child pornography. The trial judge stopped the prosecutors by stating that the exhibits were prepared “at court order.” Nonetheless, the trial judge ordered Boland to delete the morphed images.

Boland ignored that order, at his peril. He instead called federal prosecutors in Ohio to see if they thought his exhibits were illegal, but they did not return his call. Fearing prosecution in Oklahoma, Boland shipped his computer to Ohio.

After the Oklahoma case, Boland served as an expert witness in other cases in Ohio where the images, he later claimed, had already been admitted as sealed court records. Federal prosecutors in Ohio found the images to be child pornography and offered Boland what may have seemed a great deal at the time: in lieu of prosecution, he could sign a pre-trial diversion agreement admitting that he knew, or should have known, that the stock photographs “depicted real, identifiable minors”, and that he violated federal law in morphing the images of the two children into child pornography. Boland signed the agreement.

It seems Boland did not suspect what would happen next. Federal prosecutors identified the two children in the stock photos and notified the children's parents of what Boland had done. The parents promptly sued Boland in civil court on behalf of their children for damages of $150,000 each, as provided by federal child pornography statute. Boland, having admitted he violated the law, had little defense and the children won a combined $300,000.

Boland filed for Chapter 7 bankruptcy. To meet the requirements of Chapter 7 required that Boland successfully argue that he did not intend harm the children, to “willfully and maliciously injure” them. Boland's defense was that he had no control over the use of the exhibits in Ohio and that he did not know the images were of real children. He referenced an earlier ruling of the appellate court that “[w]hen he created morphed images, he intended to help criminal defendants, not harm innocent children.” The bankruptcy court agreed, allowing the discharge of his debts. The children appealed and the Bankruptcy Appellate Panel reversed. Both sides then appealed.

The Sixth Circuit found it was “clear error” of the bankruptcy court to discharge Boland's debt. Boland had, the appellate court found, used the images in his capacity as an expert witness in Ohio courts for up to nine months after his testimony in Oklahoma; the argument that they had been previously admitted as sealed court records did not matter.

As for Boland's he did not know that images depicted real minors, the appellate court found it so “implausible on its face that a reasonable factfinder would not credit it.” Boland had admitted in his pre-trial diversion agreement that he knew, or should have known, they were real children.

The fact that he did not intend to harm the children, the appellate court found, was irrelevant:  bankruptcy law only requires the “debtor to be substantially certain that an injury will result from his conduct” [§523(a)(6)]. The court expanded:

In knowingly morphing images of real minors into child pornography and displaying them in court, Boland must have been substantially certain that he would injure those minors — even if the morphing was for educational purposes. The law presumes that such acts, which harm children's “reputation,” “emotional well-being,” and privacy, cause injury.

The financial rewards for serving as an expert witness can be substantial, worth the sometimes harrowing experience, but experts do not have  blanket immunity. Mistakes can be devastating.