Alleged Child Porn Victims Identified—As Adults. Prosecutor Ignores Evidence, Insists They Are Pre-Teens, And Proceeds With Prosecution.

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For 4 years the State and its star witness, a medical professional, knew that 34 of 37 alleged child porn images were the copyrighted property of a well established adult web site operating out of Maryland.  For a year and a half the State and its star witness had documented proof  the 8 females in the 34 images were adults at the time of production.  Yet the State and its star witness continued to insist, under oath, the 8 females were no older than 13 in the images–including the female they knew was 27 years old.  What follows is an abbreviated chronology of the prosecution, including several court filings (pdf).

COMMONWEALTH vs. HOOSE

In January 2003, Sturbridge Massachusetts police detective Chris Donais (Donais), and Sgt. Jude Buckley (Buckley), of the Massachusetts State Police Computer Forensic Unit  executed a search warrant on the residence of one Kelly Hoose (Hoose), and seized his computer, among other items.

In early February 2003, Buckley rendered a forensic report of his examination of Hoose’s computer, which included 110 color photos of digital images Buckley believed were child pornography, retrieved from the hard drive.

In March 2003, Donais met with  Dr. Christine Barron (Dr. Barron), then Director of the U-Massachusetts Memorial Medical Center’s Child Protection Program.  After examining the 110 color photos, Dr. Barron identified 38 (one of which was a double), as containing females under the age of 18 engaged in the proscribed conduct.  These 37 photos were the basis for a four count Massachusetts state grand jury indictment against Hoose.  The Assistant District Attorney prosecuting the case, Maura McCarthy, did not show or offer the photos to the grand jury.

In November 2004, Hoose (attorney James Kaeding) filed a motion to exclude the expert testimony of Dr. Barron regarding her opinion of the ages of the females, and her application of the Tanner Scale to the females in the photos.

In January 2005, Hoose requested a certificate to subpoena the records of ALS Scans Inc., a Maryland based adult business operating an adult web site since 1998.  Thirty-four of the 37 images charged were clearly marked with an ALS Scans Inc. copyright, the internet address www.alsscans.com (nsfw) and the names of the model(s); “Ashley”, “Trisha”, “Jo”, “Zoe”, “Courtney”, “Trista”, “Ginger” and “Lainey”.

In a March 10, 2005 response to a Hoose motion, the government falsely claimed the photos were “provided to and described to the Grand Jury.”

On the same date, a Daubert hearing was held to determine whether the foundation of Dr. Barron’s expert opinion, Tanner Staging, was relevant and reliable under a Daubert analysis, and thus admissable to the  element of minority.

At the Daubert hearing, Dr. Barron testified  that she was conservative in her analysis of the 110 color photos and chose only those images consistent with a Tanner Stage 1 or 2, meaning:

          THE COURT:  So all of the images that form the basis of this case, in your opinion, show females with an age no older than 13?

           THE WITNESS:  That’s correct.

Dr. Barron alleged that 99.9% of females classified as Tanner Stage 1 or 2 would be under the age of 18.  She also testified that the process of Tanner Staging did not require the live presence of the individual. 

On March 16, 2005, the court denied Hoose’s motion to exclude Dr. Barron’s expert opinion, finding her testimony “credible.”

Hoose Docket Sheet

Hoose Indictments

Motion To Exclude Expert Testimony of Christine Barron, M.D.

Hoose Request For Subpeona Duces Tecum

Hoose Memorandum in Support of Motion To Exclude Expert Testimony

Commonwealth Response to Hoose Motion to Exclude Barron’s Expert Testimony

Transcript of Daubert Hearing

Court Order Denying Hoose Motion To Exclude Barron’s Expert Testimony

In April 2005, pursuant to a subpoena, Sarah Kiwak, Custodian of Records for ALS Scans, provided an Affadavit to the court, with attached exhibits in accord with federal law, identifying the 8 ALS Scans models alleged.  The Affadavit, along with copies of birth certificates, social security numbers, signed model contracts and dates of production, verified that the 34 ALS Scans images contained adults, most of whom were in their 20’s at the time of production.

In a September 2005 response to a Hoose motion, the government repeated its false claim that the alleged victims were unknown, and stated they had no “affirmative obligation” to contact ALS Scans regarding their records of the 8 models.

In an October 2005 ruling, the court denied Hoose’s motions to dismiss, yet acknowledged:

The images all contain a copyright year, the first name or names of the ‘models,’ and the words “ALS Scans Inc.” and http://www.alsscans.com” ….The Grand Jury was not presented with any information concerning  the web site from which the images were obtained…”

In 2006, in anticipation of trial, Hoose subpoenaed one of the 8 ALS Scans models, “Ashley”, (Melissa Bertsch) to testify in his defense, something she was familiar with as this is one of a number of cases in which her images have been alleged to be child  porn.

In December 2006, a bench trial commenced.  Dr. Barron testified for the government, while an alleged victim, Melissa Bertsch (”Ashley”) testified for Hoose.

According to witnesses, Dr. Barron’s testimony was consistent with her testimony at the Daubert hearing.  Although the State was in possession of certified documents identifying the 8 models in those 34 photos as adults at the time of production, Dr. Barron continued to insist they were minors no older than 13 years of age, including the one sitting in the courtroom, Melissa Bertsch.

The court found Hoose not guilty on all four counts.

Signed Court Order For ALS Scans Records

Affidavit of Custodian of Records, Sarah Kiwak

Government Response To Hoose Motion To Dismiss

Court Order Denying Motions To Dismiss

At no point during the 4 year time frame did anyone involved in the prosecution contact, investigate or shut down ALS Scans business properties.  At no point during the 4 year time frame did Dr. Barron report the child abuse she had testified about to the proper authorities, as required under Massachusetts law. 

It’s clear the prosecution had nothing to do with justice, truth or protecting children.  Instead, the agenda was, in part, an extreme attempt to advance a fraud being perpetuated upon the courts; the use of “experts in age determinations” in general, and the use of  “Tanner Staging” in particular to satisfy the government’s burden of proof on the element of minority in alleged child porn prosecutions.

In December 1998, the medical journal Pediatrics published a letter authored by Dr. James Tanner and a colleague, Dr. Arlan Rosenbloom.  In the letter, Dr. Tanner condemned the “wholly illegitimate use” of his Tanner Scale to estimate age from a stage in this context as it was not designed for such purpose.

Less than a year later, the DOJ, recognizing that only Dr. Tanner can speak for his research, dismissed what remained of the indictment, (receipt), in U.S. v Katz:

Dr. Tanner’s recently published criticism calls into question the prior Daubert ruling and the credibility and admissibility of expert testimony to establish that a model in a pornographic video tape is under the age of eighteen, based upon the Tanner Scale of Human Development.

In this particular case, based upon the recent published report by Dr. Tanner, the government cannot prove beyond a reasonable doubt the age of the female, an essential element of the crime charged.  As a result, the interest of justice demand that the United States dimiss the indictment against the defendant.

Yet state and federal prosecutors continue to use Tanner Staging in the reverse method that Dr. Tanner has condemned.  During her Daubert testimony, Dr. Barron stated that her mentor, Dr. Carole Jenny, and several others had been commissioned by the DOJ to write a chapter validating the use of Tanner Staging in alleged child porn cases. 

Meanwhile, how many cases like this have the DOJ and Dr. Jenny covered up to protect this fraud?  Anyone with information on similar cases, feel free to contact us.

ALS SCANS INC.

Copyright Info (Name: als scan inc)

Trademark

Whois

American Medical Association

AMA Report On Expert Testimony

AMA Code of  Medical Testimony Ethics

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