August 28, 2009

The affidavit that brought Becker to trial...

Gary Becker, before the hearing began

One of the issues argued at Gary Becker's court hearing Thursday was the adequacy of the affidavit used to obtain the search warrant that allowed police to go through two of his computer hard drives.

Until that point, all the child pornography evidence that existed against Becker was seven photos found by computer technician Michael Ferderer -- photos that, by themselves, are not child pornography, according even to the affidavit itself.

The affidavit, submitted by Racine Deputy Chief Thomas Christensen, was not made public until the end of the court hearing, so let's go through it before recounting the arguments heard in court, followed by Judge Stephen Simanek's ruling. It's an 11-page document, divided into three sections:
1. Qualifications of DCI Special Agent Eric Szatkowski, who prepared it;
2. Background on the use of computers for child exploitation; and
3. Summary of facts establishing probable cause.
1. In six paragraphs taking up two pages, Szatkowski is described as a senior special agent since 1991, "with extensive experience working complex criminal investigations, including internet crimes committed against children, death investigations, cold case homicides, murder for hire, sexual assault, fugitive apprehension and drug trafficking."

He has often posed "as an underage boy or girl on the internet, has been responsible for the arrest of approximately 150 individuals from Wisconsin and across the United States" for computer sex crimes. He has engaged in "thousands of undercover on-line communications with suspected predators of children" and interrogated approximately 150 individuals involved in the sexual abuse and / or exploitation of children. He's had more than 420 hours of training on the subject, and has instructed "more than 160,000 people" on the topic of sexual predators of children on the internet.

2. The next four pages have 10 paragraphs describing the mechanics of child pornographic distribution over the internet, at times written as though introducing a computer for the first time: "Producers of child pornography often use a device known as a scanner to transfer photographs into a computer... Many digital cameras also can be connected directly to a computer... Individuals that possess, receive, transfer and distribute child pornography use communication devices known as a modem..."

The technical explanation continues: Szatkowski explains that "a perpetrator's child pornography collection is not diminished if he or she distributes the pornography to others via computer" and that images can be easily transferred via the internet and stored. "Harddrives with a capacity of one gigabyte are not uncommon." Furthermore, "a forensic examination of such a hard-drive can identify and retrieve such images, including those of child pornography, even if those images have been deleted by the computer operator."

Then he turns to the perpetrators. "Individuals involved in child pornography will use places that they consider private and secure to receive, download, store and / or view the pornographic images... most often... the individual's residence." And, "these images provide them with sexual stimulation, gratification and satisfaction. Images of child pornography allow them to fuel their fantasies and validate their behavior, which society at large finds abhorrent." And, "Special Agent Szatkowski also knows that many convicted child sex offenders have had multiple victims over a period of many years before being caught... (and) many of these offenders have been caught as a result of investigations that began as child pornography investigations."

3. The summary of facts establishing probable cause describes in detail seven images taken from Becker's hard drive and saved to a computer disk by technician Michael Ferderer. The description that got the most attention during the hearing, of the only photo approaching child pornographic status, was recited multiple times by the various attorneys. The affidavit says: "One (1) color photograph of a pubescent girl, approximately between the ages of 9 and 12, lying on her stomach, with her head supported by her arms placed under her chin; the girl is looking back towards the camera; she is wearing a pair of pinkish-white panties with a floral design, exposed because her blue skirt is hiked up over her buttocks; her bare legs are exposed from the bottom of the panties to just above the knees; her panties, covered buttocks , and legs are the focal point of the image; the image also has the file name '@ great panties.' "

Szatkowski notes that, according to Ferderer, the picture was saved in a folder on Becker's hard drive. "This is significant," he writes, "obtaining this image therefore was no accident or mistake." And, "Szatkowski does not believe that the computer user would save only one such image, in that persons who save sexually provocative pictures usually do so in large quantities."

Other images, some clearly pornographic, others simply suggestive, on Ferderer's disk were of naked females, whose ages were described variously as "possibly late teenage years," "approximately 14-16," "adult," "late teens to early 20's," and so on. One, with the file name "-1dau" could be an adult, Szatkowski writes, but the filename "is likely an abbreviation for '1daughter,' a term commonly used by pornographers, including child pornographers, to indicate a fetish for incest."

The affidavit concludes: "Based on his training and experience, and the images and file names described above, Szatkowski believes there is probable cause to search the contents of the hard drives described herein for evidence of the crime of child pornography. Szatkowski knows that although he has not observed images of child pornography on the CD prepared by Technician Ferderer, (emphasis added) he believes that when the images of children he observed are taken in context with the adult or barely legal pornographic images, it is reasonable to allow a search to look for images of child pornography."

Becker attorney Pat Cafferty's argument referred directly to the statement in the affidavit's 28th paragraph, the one in boldface directly above this: "He fails to establish probable cause; there's basically some hunches, some suspicion." Asst. DA Robert Repischak responded by pointing to Szatkowski's experience and expertise, and said, "We acknowledge that the images he saw were not blatant, hard-core child pornography," but noted that "reasonable inferences" could be made from the panties image, the one picture of a pubescent girl. Cafferty argued that even that image was not blatant child pornography. "The inferences are so far upstream from the facts," he said.

Which left the argument to Judge Simanek, who noted that although some of the seven images -- of adults -- were pornographic, "it is not a crime to possess or watch pornography" (which, he said, is prevalent even on "late-night TV.") But Simanek said he relied on a "commonsense approach," and considering the photos of naked teens on the CD he he fell back on Supreme Court Justice Potter Stewart, echoing his statement in a 1964 obscenity case, "I know it when I see it."

"There's enough here," Simanek concluded, denying Cafferty's motion for suppression of the evidence subsequently found on Becker's computers.

(Aside: There may be some irony here in Simanek's reference to the Stewart standard, in that the high court's ruling actually reversed an obscenity judgment against the French film, "The Lovers," as I'm sure Simanek knows.)


  1. Pete, Dustin, thanks for condensing that 11 pages down to something concise and literate.

    I'm glad the judge was able to find the pictures of the 14-16 year old girls enough to substanciate the agents suspicions and retained all of the charges. In view of this, and the fact that BECKER is the one who INITIATED the instant messaging with the agent, I hope they throw the book at him. He needs to be off the streets for a good long time. And then constantly monitored as a convicted sex offender for the rest of his life. I wonder how many other young girls have fallen prey to him and how it will affect their lives.

  2. How do they substantiate the ages of the girls in the photo's?

  3. Anon 11:45 We answered this back on Jan. 18. Check our story HERE.

    Without a match from the National Center for Missing and Exploited Children we suspect it's an inexact science.

  4. Pete if it is an inexact process, how can this hold up in court - and how do we know the IT technician didn't down load the pictures?

  5. And how do we know it wasn't the IT technician wearing a Becker mask who showed up for a date with a 14-year-old in Brookfield?

    Man, you pervs will say anything to justify your sickness.

  6. I especially like the argument that girls today dress like tramps, thus luring innocent men into their devious traps.

    All the women that I date talk about school and Hannah Montana, too.

  7. Orbs - before you get your underwear in a bundle - my questions were in regards to the defense - could they use these points to defend Becker - so who's the perv. Becker should get what he deserves. Don't be such a nob all the time.

  8. Wouldn't an "inexact science" be cause for reasonable doubt at trial?

  9. Based on what I've read in the Post and the JT, the child porn photos sound somewhat questionable. A picture of a teenage girl showing her legs with her skirt hiked up far enough to see her panites just isn't hard-core enough for me to qualify it at "child pornography." Hell, we see worse than that in many "R" rated movies. The other hard-core porn he had on the hard drive, as I understand it, were of adults. This may be in bad taste, but it isn't illegal.

    The real crime here is that Becker initiated contact with someone he assumed to be a 14 year old girl for the express purpose of developing a sexual realationship. The bastard should be castrated for that, in my book, plus a long prison term. There is NO excuse for any adult to prey on a child for ANY reason! I hope they throw the book at him.

  10. Is it me, or does Becker look more and more evil every time he gets photographed?
    He looked like he's proud of himself for getting away with something....which begs the question, has he gotten away with something that has not surfaced yet?
    He's just creepier and creepier in public.

  11. Based on this, wouldn't you like to get a copy of the 2 phone conversations that were mentioned in the original complaint?

  12. Maybe each item without the other could get him a slap on the wrist. But all together they paint the full picture of him wanting an under-aged girls for sexual gratification. That is not in question. He says he could be in trouble for what he is doing or something to that effect in the conversation. Lucky all the evidence is being used.

  13. Lets face it, 16 year old girls are not "innocent". With that said no matter how many or how often a 16 year old girl is bopping young boys it is still up to the adult to say no. I heard of a case here in Wisconsin where there were 4 men in prison who never knew eachother but were all in prison for haveing sex with the same girl. Their cases were spread out over 3 years but all had sex with the girl within a 6 month period. This girl kept spreading her legs like a Black Widow. It is the responsibility of the adult to say NO. But don't tell me how innocent 16 year old girls are.

  14. Something along the lines of "My Cousin Vinny".

    Lets stick with the bank robber.

    The officer asks the "robber", "You were going to rob the bank"?

    The robber replies "I was going to rob the bank?"

    The officer testifies in court the defendant admitted he was going to rob the bank.

    I know some of you are saying: "But this is a technicality".

  15. Am I wrong in questioning who the "cat" and "mouse" are in this case?

    Just think about it.

    I don't know maybe I'm wrong, but "State of Wisconsin vs Gary Becker" just sounds like a case you would see being quoted a lot. It would put a smirk on my face if I came up with it.

  16. I know (knew) Gary personally and he was always rather egotistical, but I was able to get past that. However, now that he is in his situation, he has nothing to be egotistical about - but you would not get that from looking at these photo's. Looks like he has not changed.

  17. Anon 11:47, Sixteen is the "age of consent," and, legally, looked on differently than younger girls. Gary Becker did not entice a 16 year old, he went after a 14 year old. Your comments do not apply.

  18. The 7 pictures to which they refer were only (I believe) the ones that were found by the IT technican. There were many others(?) found by the cops.

    This argument is only about whether or not the original 7 gave the police probable cause to search the hard drive. It really doesn't matter whether the girls in the pictures were actually underage. If they appeared to be underage, this gives police the right to search the drive, which is how the Judge ruled.

    For example, if you take tobacco and roll it up like a joint, go driving around town, get pulled over by a cop that sees you tokin' on it, searches your car, finds a gun, you're going to jail for it, even though it was just tobacco you were smoking. The constitution only protects us against unreasonable searches. It would certainly be reasonable to search your car if it looked like you were smoking a joint.

  19. Wrong Anon 4:45. Upon initial investigation the police officer would immediately see that the "home rolled" was actually tobacco. Therefore there would be no reasonable suspicion and no justification to search the vehicle.

  20. Probable cause to look? Sure, I guess, but it's weak.

    Kiddie-porn? IF the worst is what was described here, no. Nothing in the description sounds anything remotely close to engaging in, or about to engage in a sex act or spreading of the genitalia. As I understand it that is the cut-and-dry, meat-and-potatoes description of porn. I could easily be wrong but would need proof to admit it.

    His chats with the "girl". WRONG!

    His taking the initiative to travel to meet "her". WRONG!!!!

    Kiddie-porn is wrong, wrong, wrong, wrong, gross, disgusting, etc. Nude picture of anyone, as long as their, or their parent(s)/guardian(s) permission is not of and by it's self porn. That being said, NO, I do not have any nude pics of any children, even my own, other than the very typical infant nudes that I'm not sure if we have or not!

    I AM NOT A BECKER FAN!!!!!!!!!!!!

  21. Anon 11:47, you could have fooled me.

  22. What was Becker expecting of a 14 year girl???? Has no business lokking for his thrills with children. WRONG!!! Hope he gets what he deserves!!! and a Second chance at it doesn't cut it. He had a wife at home and daughters that must be ashamed of a father such as he is. He should sit a while and have some time to think about his actions. How many more times did he do this and now he finally got caught. That is the problem out there. The guy that is 50+ plus years old didn't just decide to do these things the day he turned 50 or whatever. He had to be doing it for a long time and just now got caught. Will justice be served?

    Unfortunately, he was once a public official and will probably get away with a slap on the hands like the Retired Deputy Sheriff out of Waukesha. They'll turn all his sex crimes against children into Misdemeanors. All he had to do is take a plea deal. Is this really our justice system. There a men sitting in prison for less.