Courtesy of CT Law Tribune
March 5, 2012
Last week, a Manchester Superior Court judge vacated the one remaining charge against former Granby karate instructor Patrick Lenarz, who had served nearly four years in prison on a charge of risk of injury to a minor. The reversal of his 2005 conviction was the groundbreaking remedy fashioned by Connecticut’s Supreme Court. It decided nothing less than exoneration would suffice, because an unconstitutional search of Lenarz’s home computer by the Connecticut State Crime Lab improperly divulged attorney-client trial strategy.
After Lenarz was freed, his defense lawyer, Kevin Ferry, was exultant, but he also said he had hoped the high court would also enunciate a new standard for computer searches. “In my opinion, since electronic data is such an important part of peoples’ lives now, and people keep their private thoughts and papers and lawyer communications on their iPhones and laptops, there’s got to be a fundamental change in the procedures that apply when a search warrant is issued and those things are searched. I was kind of hoping that the Supreme Court would have come up with one in Lenarz, but they didn’t.”
Watertown lawyer and computer forensics expert Monique Mattei Ferraro is thinking the same way. She left the state crime lab in 2004, just before Lenarz’s computer was brought in for examination. She’s concerned that the lab’s internal systems are not designed to focus on a search warrant, or to properly utilize specialized computer-searching software to exclude evidence for which no probable cause has been found. A new opportunity presents itself for the lab and its technicians to start doing so now, as it upgrades its procedures in the wake of last year’s temporary loss of accreditation due to its DNA lab shortcomings. At the crime lab, Major William Podgorski said that new procedures are underway to have an independent prosecutor oversee attorney-client document searches. Ferraro spoke with Senior Writer Thomas B. Scheffey.
LAW TRIBUNE: Remind me what happened to Patrick Lenarz’s computer after police began to investigate him.
MONIQUE MATTEI FERRARO: He was accused of sexual assault by a couple of his karate students, and the police who were investigating made some nexus between the sexual assault charges and child pornography. They did a search warrant for his home computer and submitted it to the computer crimes forensic unit for a digital forensic examination.n to investigate him.
Forensic technology expert Monique Mattei Ferraro said it is up to state crime lab examiners, and not just police detectives or prosecutors, to comply with terms of search warrants.
After the police got a warrant to seize the guy’s computer, within 24 hours, Lenarz’s attorney got an order from the court saying you can’t look at certain documents, because they are privileged documents intended for my lawyer. So what’s the first thing the lab does? They go in and rifle through his documents, print them out and give them to the police, who give them to the prosecution. Therein is the prosecutorial misconduct. Nobody [had previously faulted] the lab or the police. Finally, [last week], Kevin Ferry mentioned that it was the fault of the computer crimes lab. And it is unquestionably their fault. They ran roughshod over this guy’s rights. Once they became aware of these privileged documents, they went right in and looked for them, printed them out, and gave them to the police. The lab, as a government entity, is covered by the Constitution. Their position is, they don’t ask anybody for a copy of the search warrant or consent to search because “the police officers tell us what to look for, and we trust that they’re going to tell us the truth.” That’s not right — the examiner is ultimately responsible.
LAW TRIBUNE: Why is a warrant so important for a computer search?
FERRARO: [A computer] contains an enormous amount of information — more than your house does, more than the Library of Congress, potentially. If the average murder scene is a bedroom, imagine that a computer hard drive is the equivalent of the Town of Wilton or the City of Hartford — filled with all of the owner’s private thoughts and activities that may have accrued over the course of several years. When the police have access to it, they have lots of time and resources at their disposal, to look through it.
LAW TRIBUNE: There were several steps before the improper material reached the prosecutor. What went wrong here?
FERRARO: Within 24 hours of the seizure of the computer, Lenarz and his attorney obtained a court order that prohibited the examiners from looking at documents prepared for trial, that were privileged. This court order was in effect when the computer was submitted to the crime lab. Notwithstanding the order, the lab searched through the computer, they looked at the documents, printed them out and gave them over to the police. The search warrant was quite clear that the computer crimes lab was to look for child pornography. Child pornography is nothing like documents, and digital forensic software is quite able to distinguish between pictures and documents.
LAW TRIBUNE: Even computer novices know they’re completely different types of files.
FERRARO: And digital forensic software quite easily filters out any documents in a search — that’s one of the beauties of it. It’s very, very easy. You look at the search warrant, you go by the search warrant and you gather the data the search warrant tells you to look for.
LAW TRIBUNE: So what should come out of this?
FERRARO: At the very least, the Department of Public Safety and the computer crimes lab should learn some lessons from it. Certainly Mr. Lenarz’s life was damaged — he spent three years, nine months in prison because of this. I think that what happened is an indicator of the poor supervision and the bias that existed at the lab and within the Department of Public Safety at the time. I think right now there’s an excellent opportunity for the department to change their ways. And I sincerely hope they take advantage of this opportunity.
LAW TRIBUNE: What would you like to see?
FERRARO: They are still not requesting consent or search warrants before examining a computer. They don’t use a search warrant as a guide when they do an examination of a computer. They go by the request for service. ...There is nothing at the lab now that would prevent a situation like Lenarz from happening again. Nothing. •
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