Too Smutty to Show You, Counselor

            As much as I believe that adults should be free to read and view materials of their choosing in their own homes, I also believe that children need to be protected, and accordingly, have zero sympathy for kiddie pornsters.

            Vincent Sparagano, who now stands charged with child pornography offenses, is, of course, innocent until proven guilty (though the smart money says that Thomas Spota, the District Attorney of Suffolk County, New York, and his ADA, Eric Aboulafia, will ultimately make the charges stick).  Vincent is entitled to a zealous defense by counsel, regardless of how I believe I will view him when the criminal case against him comes to resolution.

            Peter E. Brill, Esq., Sparagano's defense attorney, also seems to believe that his client is entitled to a zealous defense, and accordingly, has requested copies of the offending images allegedly viewed by Sparagano.  Spota and Aboulafia have balked, claiming that providing the graphics in question to Brill would be a violation of the federal child pornography laws, and demanding that Brill come to a police station to view them.

            County Court Judge Barbara Kahn ruled against the DA, but she placed some tight restrictions upon the images in a protective order, reminiscent of the conditions attaching to the classified military information I had occasion to access in a prior position:

(1) Defense counsel and his expert must sign copies of the protective order before the mirror image is provided and file the original signed copies with the Court.

(2) Access to the mirror image provided by the District Attorney by any person other than defense counsel and his expert, including the defendant, must be authorized by Court order before such access is given. A motion seeking such authorization must be supported by good cause.

(3) The computer data must be kept in a secure manner so that it is inaccessible to anyone other than defense counsel and his expert.

(4) Defense counsel and his expert shall access the computer data only as necessary for the defense of the charges in this case.

(5) A copy of this protective order shall be kept with the computer data at all times.

(6) No copies of the computer data shall be made unless authorized by Court order. A motion seeking such authorization must be supported by good cause.

(7) All transfers of the computer data between the District Attorney, defense counsel and his expert shall be in person. The computer data shall not be transported across state lines (see 18 U.S.C. §2252).

(8) Any computer through which the evidence is accessed shall be a stand alone computer, i.e., a computer that is not connected to any other computer or to the Internet.

(9) Any computer through which the computer data is accessed shall be cleansed of all traces of the computer data upon entry of final judgment.

(10) The mirror image must be returned to the District Attorney promptly upon conclusion of the trial, direct appeal or other disposition of this case. Transfers of the computer data must be in person at the offices of the District Attorney or to a law enforcement officer authorized by the District Attorney to pick up the computer data and deliver it to its offices.

(11) Notwithstanding the entry of any order terminating this case, this Protective Order shall remain in effect unless terminated by Order of the Court.     

     -- People v. Vincent Sparagano, No. 02295/2012, County Court, Suffolk Co., 9 December 2013, [NYLJ 1202632802193]

           As mentioned, I detest child porn perverts, but even they must be accorded the right to confront the evidence against them.  I respect Tom Spota (and before he became DA I had a case with his partner), but even he needs checks and balances.

An ATM for the ATMs

One principle for which I developed great appreciation when I was with the Internal Revenue Service is the notion that any time money changes hands, information also is transferred. The information might be something as simple as the date and time on the receipt from the cash register, or it could be a whole series of legal documents, or anything in between the two extremes. Without going into the nitty gritty details at this time, suffice it to say that during my stint with the IRS, many a seemingly mundane document or scrap of paper or account entry led me to a past money transfer of more significant proportions. In fact, even after I handed back my badge and went into private practice, those skills I learned from my IRS days served me well, and continue to do so.


Just as information can lead one to money, so, too, can money be part of the trail to information. More to the point, money itself can constitute information, and therefore, evidence. In a city the size of New York, then, it is natural and logical that the police will have frequent occasion to take cash and currency as evidence of a crime. Thus, there are a number of rubberstamps which imprint legends such as "NYPD Evidence" and the like.

As the law enforcement people can surely confirm, police departments and prosecutors take great pains to document the chain of custody for their evidence, and to impose security measures to ensure that the evidence presented at trial is the same, untampered evidence that was found during the investigation. Even the IRS people do likewise; one rule was that we would never remove a staple from a tax return document without documenting when, how and why we did it -- so that there would be no issue over whether the tax return document presented by the IRS as evidence was the same tax return filed by the taxpayer.

So what does the NYPD do with its money evidence when the evidence is no longer needed? It had been exchanging it for regular cash with Chase Bank, with the understanding that Chase would, through the appropriate Federal Reserve channels, have the "NYPD Evidence" cash destroyed, along with other retired currency.

Well, it turns out that within about a month's time, two Chase ATMs, each in a geographically distant (by NYC Metropolitan Area standards) neighborhood, were reported to have dispensed some of that NYPD Evidence cash to ATM customers. The two ATM customers were quite credible: A retired FDNY dispatcher and a retired NYPD cop.

Seems that Chase, in addition to its Federal bailout, has now found another source of funding.

Chase spokespeople say that Chase is investigating. I say that the IRS should also be investigating! Someone ought to be chasing Chase!