It was not a good day in court today for former Mayor Gary Becker.
He spent spent 2 1/2 hours before Judge Stephen Simanek, as his attorney pressed six motions mainly aimed at suppression of evidence before his Oct. 13 trial on child pornography and child sexual enticement charges.
But Becker and his attorney, Pat Cafferty, prevailed on only the most minor issue, managing to separate a charge of misconduct in office -- for having city IT contractors service his personal computer -- from all the felony counts relating to sex. The misconduct in office charge is "fundamentally different" from the other charges, Simanek ruled. An effort to also separate the child pornography charges from the most serious allegation involving sexual enticement of a 14-year-old girl -- who in reality was a criminal investigator -- failed, as Simanek accepted the argument of Assistant District Attorney Robert Repischak that there is a "commonality" of the sexual charges.
Simanek also rejected Becker's motion to have a jury from outside Racine County hear the cases. Cafferty had argued that "Mr. Becker is a pariah," noting that 99.9% of bloggers' entries "are ugly, ugly thoughts," making it "impossible to get a fair jury." Repischak said such "concerns are very speculative; we can't gauge the community outlook from bloggers. We don't even know if they're local."
Simanek, however, said "the actual newspaper reporting has been objective and factual, with no prejudging." And although he said, "there is little doubt the print media is in decline, and people are looking for other ways of communicating," there's no way of telling how many bloggers are making the comments and what impact they have on the overall community.
The most interesting portion of the hearing involved the question "whether or not there was a reasonable expectation of privacy" when Becker gave his computer to the techs to have it checked for viruses and adware. Simanek declared that Cafferty would need testimony to prove that point, and so he put two witnesses on the stand: Alan Eubanks, who was working as a contract "information manager" for the city on Dec. 22, 2008, when Becker brought his computer to be checked, and Michael Ferderer, the help desk support technician who did the actual work.
The questioning about what a computer technician does when virus-checking a computer went like this:
Cafferty: "Does part of the protocol involve just nosing around?"
Eubanks (right): "You look around."
Cafferty: "Does it involve looking at their family photos?":
Eubanks: (The problems) "could be in a non-standard location."
Cafferty: "The protocol doesn't involve just nosing around for the fun of it through people's personal files."
Eubanks: "It could be anywhere."
Repischak asked: "Did he (Becker) say, 'Stay out of this folder, this drive?' "Testimony from Ferderer went along the same path, after he noted that the first thing he did was make a back-up copy of the hard drive, in case it needed to be restored somewhere along the repair process.
Repischak: "You had an all-access pass to this computer."
Cafferty: "The protocol doesn't include nosing around?"At one point, Ferderer misunderstood Repischak's question, "What do you believe was a violation of protocol?" He answered, "I don't believe it was a city computer and I shouldn't have been working on it."
Ferderer (right): "No, it doesn't."
Cafferty: "You respect their privacy?"
Repischak: "Were you given any indication not to look in any files or folders?"
Repischak: "Did you look at any for fun?"
Cafferty insisted, "There is no case law that says someone who drops off a computer gives up his right to privacy." The protocol, he said, allows access "only for legitimate purposes." He said the situation is "analogous to inviting a cleaning person into your house," only to clean, not to look through your stuff; or bringing your car to a mechanic for engine repairs, which doesn't give him the right to go through your glovebox or trunk. "You have a "reasonable expectation of privacy," he said, conceding that there was no problem with Ferderer's finding seven pictures in the computer's Recyle Bin --"the seizure that was made by the Police Chief is the problem."
Repischak responded, "the key word is reasonable. It is not unreasonable that when you take your computer to an IT professional that he will go through folders and files." And, There's no showing that either did anything improper, he said, "no violation of the protocol." Becker's files were not encrypted, or behind any firewall, he said.
Simanek wasn't buying Cafferty's arguments. "Did Mr. Becker have a reasonable expectation of privacy? I believe he did not. He voluntarily brought his computer to the IT professionals... and relinquished dominion and control over the computer...He implicitly consented to a search of his computer...You have to look everywhere. That's part of the deal when fixing a computer." He rejected the cleaning lady and car engine repair analogies as well: "If he opens the hood and finds contraband, it's exactly in the palce he was bound to do the repairs."
The judge said he also had "real reservations here as to whether this was a government search."
Simanek allowed to stand two child pornography counts brought later by the state, after pictures of a sexual nature were found an a hard drive in Becker's car trunk. The question is whether the charges were "transactionally related" to the other earlier charges. Cafferty said they were not, deriving from two separate searches; moreover, he said, the hard drive was in the process of being thrown out, so there was no intentional possession.
Another argument devolved around the definition of "computerized communications system," whichCafferty argued is vague in state statutes. Cafferty's argument was that "the statute is so vague" that Becker could not know his conduct -- the sexual chats with the purported 14-year-old -- would be prohibited. Simanek noted that even though most people do not know how a computer works, "in a general sense most people understand what a computer is. If it walks like a duck and quacks like a duck..." The Legislature, he said, "has enacted a statute, a very clear statute," prohibiting engaging a minor in sexual activity. "You don't have to be Einstein," he said, denying that motion as well.