This line from Shakespeare's Henry VI is often repeated as a humorous slam on the practice of law. However few people have an understanding of how that line was used in the play. It was intended to be a suggestion which would remove from the world the guardians of freedom in order to allow tyranny to prevail.
You might worry about your freedoms, your liberty or even how the world might look if our American way of life was replaced by a dictatorship. One thing that would certainly be absent would be access to fair courts, guided by the Constitution, and in which people had the right to the assistance of men and women trained in the law, in the process and in the defense of liberty.
The following story illustrates how the right of a lawyer to introduce evidence has resulted in a federal prosecution, a bar sanction and a $300,00 lawsuit against him. Is that a camel's nose under the tent?
In February 2004, Dean Boland downloaded images of two identifiable children, given the unidentifiable names Jane Doe and Jane Roe for purposes of this litigation, from a stock photography website. See Doe v. Boland, 630 F.3d 491, 493 (6th Cir. 2011). Boland digitally manipulated (“morphed”) the photographs to make it look like the children were engaged in sex acts. In one picture, five-year-old Jane Roe was eating a doughnut; Boland replaced the doughnut with a penis. In another, he placed six-year- old Jane Doe’s face onto the body of a nude woman performing sexual acts with two men. In March and April 2004, Boland used the images as part of his expert testimony in two Ohio state-court proceedings and a federal criminal trial in Oklahoma involving child pornography. He displayed “before-and-after” versions of the images, testifying that it would be “impossible for a person who did not participate in the creation of the image to know [the child is] an actual minor.” R. 77-2 at 119.
Boland’s testimony caught the attention of the FBI’s Cleveland office. Federal agents searched his home and seized several files from his computer. Boland, 630 F.3d at 494. In April 2007, Boland entered a pre-trial diversion agreement with the U.S. Attorney’s Office for the Northern District of Ohio, in which he admitted violating 18 U.S.C. § 2252A(a)(5)(B) by knowingly possessing a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” R. 73-1; 18 U.S.C. § 2256(8)(C). Boland also published an apology in the Cleveland Bar Journal, stating, “I do recognize that such images violate federal law.” R. 73-1 at 12.
Judge Jeffrey Sutton brushed aside the fact that the lawyer did this to make a legal point in court through a relevant exhibit: “When he created morphed images, he intended to help criminal defendants, not harm innocent children Yet his actions did harm children, and Congress has shown that it means business in addressing this problem by creating sizable damages awards for victims of this conduct.”
The result is a breathtaking award for a trial exhibit not seen outside of the case where the children were expressly stated as not participating in what the images showed.[Turley]