Will a New Trial Result in an Acquital for Julie Amero?
Posted in Information Security, Law, New Case Law, Technology on June 6th, 2007 by admin – 1 CommentJulie Amero was granted a new trial by Judge Hillary Strackbein, paving the way for the facts of this case to be found anew. The decision was based upon Judge Stackbein’s opinion that the jury may have relied on false information which was presented during trial. This statement is surprisingly harsh in stating that the information and not the way it was presented was untrue. While this is a victory for justice, the underlying circumstances which led to Ms. Amero’s initial conviction remain, and most individuals seem to be missing the point. Ms. Amero had an attorney who lacked a basic understanding of the issue and expert witness who’s attitude and failure to prepare for trial. In the confusion which ensued, the jury failed to correctly apply the facts to the law and convicted her of on an improper basis.
Trials which involve technical issues are often turn on which attorney does a better job of helping the jury understand the facts. Experts are utilized to explain the circumstances and give conclusions, but ultimately it is the responsibility of the attorney to boil the testimony down into a broth which is easily consumed by the jurors. Testimony into the mechanics of malware and forensic analysis will no doubt fly over the heads of some of the jurors. The direct examination of technical witnesses must be designed in such a way as to not lose the jury along the way, and make sure they have an understanding of the facts presented. The terms and phrases used should be introduced slowly and explained in such a way that everyone in the court understands them. In order to do this, the attorney must understand these terms himself. If he doesn’t, he runs the risk of allowing the expert to run away with his testimony and leave the jury confused and perplexed by the tedious testimony which they just heard. Ms. Amero’s original attorney stated that he was computer illiterate during his closing statement. While an effective tool to find common ground with the jurors, this ignorance leads to poor advocacy for the client. Expert witnesses are expected to be exactly that. Experts at being witnesses. First and foremost they should have the necessary background to effectively testify to the facts, but at trial they should be every bit as smooth as the attorneys. Herbert Horner, the defense expert, stated in todays article (http://www.norwichbulletin.com/apps/pbcs.dll/article?AID=/20070606/NEWS01/70606018) about the decision that he had a two hour long presentation of his findings and conclusions. While I haven’t made any estimations as to the length of the testimony by other witnesses, I feel comfortable concluding that this would be the longest testimony given if it had been allowed in full. That, in and of itself, is poor form on the part of the expert. Malware infections are something that most, if not all, computer users have faced before. Pop-ups are far less difficult for an average juror to comprehend then hardware rootkit infection or DRM circumvention. It wasn’t the length of the testimony which led to the conviction. It was Mr. Horner’s failure to provide his testimony in advance and appalling lack of respect to the court. Providing testimony in advance is nothing new or unique to Judge Strackbein’s court. An expert witness who is paid for his testimony should know the procedures and comply with them. Mr. Horner’s statement to the judge that the trial was a “train wreck” did nothing for his reputation as an expert and hurt Ms. Amero’s case. If Ms. Amero is tried again, she will be represented by a new attorney, William Dow III. His reputation is that of a superb trial attorney, and I’m confident that she will achieve the acquital whcih she so rightfully deserves. However, if Mr. Dow doesn’t find a more effective defense expert and gain a greater understanding of the issues of malware infection Ms. Amero may once again face the same result.