Expert witness ordered to pay victims for creating morphed CP

As part of his expert witness testimony, an Ohio attorney used photos from a stock image website to morph photos that digitally created the illusion of a child engaging in a sexual act. The argument was that if it was skillfully done, it would be difficult to tell if a person was truly in possession of child pornography.

Soon thereafter (in 2004), an investigation began, and FBI agents searched the attorney's home and vehicle. Ultimately, he was required to make a public apology in the Cleveland Bar Journal.

In 2007, the families of the children filed suit against him seeking civil damages as allowed under 18 U.S.C. § 2255 which are a statutory minimum of $150,000 per victim. The district court dismissed, finding that granting the relief would be counter to the defendant's Sixth Amendment rights, and that an Ohio statute provides "immunity from state child pornography prosecutions for expert witnesses." The Sixth Circuit reversed and remanded, holding that there is no exception for expert witnesses.

On remand, in Lora v. Boland, 2011 U.S. Dist. LEXIS 121572 (N.D. Ohio 2011), the district court found that he did not have to create these morphed images to prove his point and that his actions were not protected by the Constitution or statute. Therefore, the court awarded damages of $150,000 to each victim.

RELATED CASE: Released yesterday was a case that addressed mandatory restitution under 18 U.S.C. § 2259. In United States v. Fast, 820 F. Supp. 2d 1008 (D. Neb. 2011), a child pornography victim was awarded attorney's fees, medical and psychiatric care, occupational therapy and lost income.