August 27, 2009

Bad day for Becker at evidence suppression hearing

Gary Becker, right, with his attorney, Pat Cafferty

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."

Judge Stephen Simanek swearing in witness Alan Eubanks

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?' "
Eubanks: "No."
Repischak: "You had an all-access pass to this computer."
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.
Cafferty: "The protocol doesn't include nosing around?"
Ferderer (right): "No, it doesn't."
Cafferty: "You respect their privacy?"
Ferderer: "Yes."

Repischak: "Were you given any indication not to look in any files or folders?"
Ferderer: "No."
Repischak: "Did you look at any for fun?"
Ferderer: "No."
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."

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.

District Atty. Michael Nieskes and Asst. DA Robert Repischak


  1. Well I have to applaud the judge and the prosecutor. They did a fine job of representing the people and justice.

    I can't argue with most of the findings. Although I might have allowed him to have an outside jury. He was the mayor besides making front page news for a crime.

    I really thought he was going to walk. More interesting now.

  2. Oh yeah that bit about the laptop in his trunk not really being in his possession because he was mid getting rid of it. That,s cute. Glad the judge denied that argument.

  3. A better person to put on the stand would be Kurt Wahlen and ask why he didn't obtain a search warrant prior to searching the computer and replacing the hard drive. Police 101 would teach you that, wouldn't it Kurt?

  4. PrefersCoffee8/27/2009 7:40 PM

    if you took police 101 you would know that unless an individual has a reasonable expectation of privacy, a search warrant is unecessary. As judge simanek ruled today, gary becker did not have a reasonable expectation of privacy when he turned the computer over to the computer tech.

  5. Anon 7:01 PM - Chief Wahlen knows exactly what he is doing. He did everything by the books. It is very obvious you do not know the facts, nor do you know what you are talking about. Double up on your meds and relax.

  6. Simanek is merely a circuit court judge that can be overruled by the appellate court. It would not surprise me if Cafferty took this ruling to that level.

    Wahlen is just an idiot that didn't even earn his stripes. He was good buddies with Polzin and that is the only way he got the job. Just one screw up after another with that guy.

  7. Anon 7:57 PM - are you an officer or civilian that got themselves in trouble for not doing what you were supposed to be doing at the PD? You obviously don't have a clue about things. So easy hiding behind a anonymous name and say things. What's your name? Start acting like an adult.

  8. I am just a law abiding, tax paying, concerned citizen that is unhappy with the direction this city is going. Crime is out of control and we need change. I think you know exactly what I am referring to.

    Racine has taken steps to cleanup Unified (removal of Hicks & cronies), City Hall (removal of Becker and Hughes), and now its time to clean up the Racine PD (Wahlen, Polzin, and others) so progress can continue to be made. This city can once again be a community people want to live in.

  9. Someone starts a public website where people can upload files they think are infected with a virus/spyware, with the intent of others to help analyze the files. Would this be legal?

  10. The said website now has all sorts of files including disc images, photos, etc. Now according to the testimony of 2 computer techs in State of Wisconsin vs Gary Becker, we all know that you need to run the files if executable and look at the photos because that is how you check for viruses and adware.

  11. Now, Mr Joe Anonymous takes his computer into the "We Fix Computers" store. The tech uploads a few files from the computer to the said website for analysis. The only problem is the files were photos of Mrs Anonymous naked.

  12. I know some of you are saying the computer tech should have followed proper protocol and looked at the files first. He probably wouldn't have uploaded them if he did. The problem is this tech was not as savy as the "IT Professionals" working for the City of Racine. He was under the impression you shouldn't open a file you thought was infected.

    Did I mention that Mrs Anonymous has now lost here job because of those photos. It seems there is nothing she can do because of the precedence set by the Judge in Wisconsin vs Gary Becker. The couple had no reason to believe the photos were private.

  13. A large software company took the owner of the website to court. Their lawyers argued that the site was just used to pirate software. The defenses lawyers argued that the files were infected with viruses and adware. They called expert witnesses that testified as to the effects of these infections.
    Computers slow down. Even hanging.
    Send files to central server.
    Download files from a central server.
    They even downloaded one of the disc images to a computer and showed how these things were happening.

    Needless to say the large software company went bankrupt.

    We now return this blog to the Angry Mob of Bloggers.

  14. Mrs. Helen Carter8/28/2009 6:14 AM

    Dustin & Pete, This site is nothing more than a way for demented, angry people to vent their distorted, and usually not fact-based views. They say derogatory things about people. This has to stop. People can sign as Anonymous as in Anonymous 7:01 PM & Anonymous 7:57 PM and spout off from the mouth without knowing what they are talking about. This site is nothing more than tabloid journalism. It's a disgrace.

  15. If Becker is found guilty of the charges, they will appeal. I wonder if a higher court will agree with Simanek ruling on the motions that he supresed yesterday. I'm also sure Simanek does not want his legacy when he retires later this year of letting Becker off.

  16. Anon 11:44 you said, "He was under the impression you shouldn't open a file you thought was infected."

    If you knew anything about computers, you would know that you should NEVER open a file or executable that is suspected of containing a virus or a worm. To do so would automatically infect the computer. Why do you think anti-virus programs isolate and move such files to a quaranteen folder? As a network administrator for many years, a systems analyst and programmer I can tell by your comments that you know little or nothing about the internal workings of computers.

    Don't pay any attention to the dribble this fool espouses. NEVER, NEVER EVER open a file or run a program that you suspect might contain a virus. Instead, upload it to your anti-virus program manufacturer (Norton, AVG, McAfee, etc.) and let them analyze it for you. Anything less is sheer stupidity.

  17. The word you want is not dribble, but drivel.

  18. Mrs Helen Carter:

    I think you're a disgrace.

    If you don't like reading the posts at this site, then DON'T READ THEM!!

    Now get back to your knitting.

  19. Concerned Tax Payer8/28/2009 5:43 PM

    Weidner must be really upset about this. So sad, so sad.

  20. I thought for sure this would appear on Slashdot.

    Mr Dribble

  21. I commend the Racine Post for keeping such open communication (anonymous posting). If people want to put their name, fine. If they don't want to put their name, that is fine too.

    Anyone can make up a name (i.e. Helen Carter, Marko Reed, etc) and register it.

    Personally speaking, I do think the police chief is ineffective and anyone that lives in this city knows that crime is out of control.

  22. i hope becker is punished to the full extent of the law and is convicted of every charge.

    it's obvious that he is guilty and there was zero wrongdoing by the computer tech.

    he needs to take it like a man.

    honestly if i did this and was on trial for it, i'd kill myself.

    becker is a soul-less sorry excuse for a human being

  23. "Anonymous said...

    A large software company took the owner of the website to court. Their lawyers argued that the site was just used to pirate software. The defenses lawyers argued that the files were infected with viruses and adware. They called expert witnesses that testified as to the effects of these infections.
    Computers slow down. Even hanging.
    Send files to central server.
    Download files from a central server.
    They even downloaded one of the disc images to a computer and showed how these things were happening.

    Needless to say the large software company went bankrupt.

    We now return this blog to the Angry Mob of Bloggers.

    that's a nice [well not really] made up story.

    what companies were involved? yeah i thought so.

    anyways, quit defending the pedophile.

    viruses didnt develop some artifical intelligence that created hours and hours of chat logs with minors, and they didnt download child pornography.

    and viruses didnt arrange a meeting with a minor.

    quit defending the pedophile, you should be ashamed of yourself.

    and becker, i know you're using the internet even though you're not supposed to be!