I’ve uploaded a copy of the transcripts with the files renamed for clarity. You can download the .zip file (amero-text.zip – Right-click to save to your computer). Where specific transcripts are mentioned in this post, I’ve linked them to the Norwich Bulletin copy and referenced their name in the .zip file for those who download the entire group. Here are some of my thoughts as I read through them:
Wow, Robert Hartz must be the only person on the planet never to hear of adware and or malware. From the transcript of his testimony on January 3, 2007 :
Q: Okay. And as a person involved in the computer field, do you know of viruses that would allow a computer to be infected and to cause those computers to access random websites against the user’s wishes?
A: I haven’t seen anything like that, nor have I heard of anything like that.
Note that the question was carefully worded to be specific to the term “virus”. Strictly speaking, adware and/or malware isn’t really a virus.
On cross-examination, Mr. Cocheo (the defense attorney) asks Hartz to define adware, spyware, parasites, and viruses. Hartz is fairly accurate on the adware/virus definitions, but doesn’t know what parasites are, and has a halfway-correct definition of spyware.
Later, he admits that he did not scan the computer for adware or spyware, and this testimony defies credulity:
Q: Thank you. Is it possible to be in an endless loop of pornography?
A: I’ve never seen that, so I would have to say probably not.
The defense should have asked him specifically and directly if there was any way, to his knowledge, that internet sites could be accessed without a direct action on the part of the user. His answer to that question would have set up the way to impeach that testimony through their own expert, I think. Even if it wouldn’t, it would certainly have caused any reasonable person with experience to question his credibility.
On redirect, there’s this exchange:
Q: To your knowledge, at the time of this incident you were not, and you didn’t learn subsequently or at the time you did not know of — there was no viruses, adware or spyware or viruses I think you said on that computer in question, correct? (Aside: This question is unintelligible)
A: To the best of my knowledge, there was none of that on the PC.
Why, oh why, did the defense attorney not ask on re-cross whether Hartz was now maintaining that they had CHECKED FOR spyware and/or adware? That question left the jury thinking that this ‘official expert’ was testifying that there was no adware and spyware on the PC, which he’d already said he hadn’t checked for.
They’ve misposted the second part of student 2′s testimony, posting the first section twice. But all of the students with the exception of Student 5 clearly stated that she either turned the screen away from them or blocked their view. Student 5 went to the trashcan and testified that she went back to the computer when he turned his back to go back to his seat. He wasn’t sure if she saw him coming up.
From the jury instructions , page 330:
Any person who wilfully or unlawfully causes or permits any child under the age of sixteen to be placed in such a situation that the morals of that child are likely to be impaiared shall be punished.
[snip]
…The State must have proven the following elements beyond a reasonable doubt: One, that at the time of the incident the children in question were under sixteen years old. Two, Ms. Amero wilfully or unlawfully caused or permitted the victims to be placed in a situation that was likely to impair their morals.
[snip]
This is the conduct that is deliberately indifferent to, acquiesces in, or creates a situation that is basically opposite to the child’s moral welfare, inimical or basically opposite to the children’s moral welfare.
Willful means deliberately or intentionally.
Unlawfully means without legal right or justification; causing or permitting a situation to arise when the defendant, Ms. Amero, had such control or right of control over the children that the defendant could have prevented from happening.
The state must have proven that the children’s were likely to be impaired, and likely means probably or in all probability as used here. Morals means good morals; living, acting and thinking in accordance with those principles or precepts that are commonly accepted amongst us as right and decent.
As for intent, the state must have proven the defendant had the general intent to perform these acts, in other words, her behavior, if you find that she did, in fact access these websites commonly referred to as pornographic, or that the pornographic websites were being accessed and the defendant was indifferent to, acquiesced in or created a situation that would be indifferent to or opposite to the children’s moral welfare, and that the children were under sixteen years old were exposed to these websites, that would be general intent.
The emphasis is mine. I’m shocked that she was found guilty, possibly more shocked than before. Here’s why:
- The prosecution did not put a single expert on the stand to prove that exposure to pornographic images for a second or two causes moral harm. They assumed a fact not in evidence, as did the jury.
- In fact, Julie Amero actually tried to physical remove the children from any area where they could view the screen, as evidenced by the testimony of the children themselves, so the prosecution failed to prove general intent.
- The prosecution did not prove that she deliberately accessed the websites, again failing to prove general intent.
The most frustrating point for me when reading these transcripts was the Herbert Horner testimony. The judge clearly did not understand what he was trying to say and cut him off at every single juncture from trying to speak the truth. Further, his testimony was so powerful that I believe she had a DUTY to allow the prosecution time to review and prepare for his testimony rather than imposing the sanction of not allowing it at all. This is why the trial wasn’t fair and it’s why the conviction should be reversed.
Even taking the most positive view of Robert Hartz’ testimony (that he’s just ignorant and not lying), no reasonable person with any exposure to a PC could believe his testimony that there is no adware, spyware or virus out there that could force the loading of unwanted pages.
The transcripts are enlightening to the extent that they paint a picture of a judge who was more interested in finishing the trial in a short period of time than fairness, a prosecutor who intentionally skirted the truth of malware (or didn’t understand it) and a school district willing to throw someone under the bus to avoid responsibility for their own failure to protect the children (and general intent to corrupt their morals, I might add).
Here are some statements from the jurors in the Norwich Bulletin article:
James Robson, one of the jurors in the trial, said, “One of the things we tried to decide is, did she do due diligence in not exposing the kids?“Did she do what any reasonable person would have done in that situation?” Robson asked.
The answer, according to the jury’s verdict, is no.
“Based on the way the law was read to me, I made the decision I thought was the right one,” said Lisa Virtue, also a juror on the trial.
But the reporter should have pressed this with them more. They weren’t required to determine whether due diligence was performed, but whether the state had proved Amero’s general intent to willfully cause the situation to arise. That’s the beginning of the question. I’d also like to ask them where they saw evidence that momentary exposure to graphic images somehow impaired their morals. And shouldn’t the defense have asked the students on cross-examination whether or not that momentary exposure caused them to form an opinion about pornography that was counter to their moral development?
The one lingering question I have is this one, though: When Amero left at the end of the day, what did she do with the computer? Was it off the next morning? Why were there no popup images on it the next day?
My guess? She left the classroom and reported the popups to the assistant principal (who wasn’t called to testify for some reason). Someone went into the classroom after she left and turned off the computer, or the janitor did it that night when cleaning the classroom. The next day, there were no popups because the script was deactivated. Oops, I just discovered that in fact, there were two websites accessed on the 20th, a day where Amero wasn’t in the classroom or anywhere near that computer. That’s at the end of Det. Lounsbury’s testimony [amero-16-lounsbury1.pdf]. So now I’m really at a loss to understand why the jury thought she had intent.
And as an FYI to those who reported that she surfed over to Orbitz — the Orbitz popups are notorious, particularly from mainstream websites like AOL and newspapers.
The true outrage in this case was the exclusion of Horner’s testimony. Had I been him, I’d have gone home and cried, too. He was treated badly and his testimony would have shown the jury that Amero was innocent.
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