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You’ll recall the case of Julie Amero, the hapless substitute teacher who has been convicted for a porn spyware infestation on a classroom computer and is now facing up to 40 years in prison (sentencing is on March 2).

The tech community has, for the most part, been quite supportive of Ms. Amero (some comment storms here and here). It’s deservedly become a cause celebre.

However, ComputerWorld blogger Preston Gralla feels quite differently. In a posting today, he crows that “justice prevails”:

Lawyers have come up with some novel defenses over the years, including the “Twinkie defense” in which a lawyer argued that defendant Dan White’s eating of Twinkies and drinking Coca-Cola proved that he was depressed, and so not responsible for his actions in murdering San Francisco Mayor George Moscone and Supervisor Harvey Milk in 1978. The defense was partially successful; White was convicted of voluntary manslaughter rather than murder.

Luckily, it seems as if the spyware-made-me-do-it defense doesn’t cut it in court. For once, justice prevails.

Link here.

Preston makes a clever twist, mixing an obvious abuse of the court system (the twinkie defense) with an arguably legitimate defense (spyware), an argument ignored by an apparently computer-illiterate court (and the defense lawyer admitted to me today that he also is computer illiterate). (Update: It turns out the Twinkie Defense itself is not real).

There is abuse in our justice system, with incessant victimization which attempt to remove responsibility from the perpetrator. However, we also suffer from a system of mores where armchair jurisprudence creates instant “conclusions” and damnation of the convicted, often based on emotional reaction, rather than a review of the evidence. Having personally witnessed first-hand a genuine miscarriage of justice, I tend to be a bit more cautious in my conclusions. As surprising as it may sound to some, not everyone indicted or convicted is guilty. Some are actually innocent.

In fact, this case shows that the evidence is not in favor of the “justice prevails” argument, but quite the opposite.

My response to Preston:

Justice? No, the evidence to hand actually points to a miscarriage of justice.

This case is so wrong on so many levels. Julie Amero is looking at 40 YEARS in prison. For a spyware infestation.

Every available piece of evidence known to the public indicates that that Ms. Amero is quite likely _innocent_ of the charges.

The defense contends this was a case of spyware on the school machine — a barrage of popups. And from what we know of the case, it certainly looks like it was (if you want to see what a porn spyware infestation actually looks like, Ben Edelman shows it here: — it’s quite a real problem).

According to one article, “Computer expert W. Herbert Horner, who performed a forensic examination of the computer for the defense, said Amero may have been redirected to the sexually-oriented sites through a hairstyling site accessed from the computer. He said the site allowed spyware to be downloaded onto the computer which allowed the pop-ups.”

The detective in the investigation “admitted there was no search made for adware, which can generate pop-up advertisements”. It’s incredible that they never even _checked_ for spyware.

The court actions of the case were flawed as well. For example, one source reports that the Trial Judge, Hillary Strackbein, “was seen falling asleep during proceedings and made comments to the jury that she wanted the case over by the end of the week. It was also reported that Judge Strackbein attempted to pressure the defense into an unwanted plea deal, in place of a trial. The defense attorney for Amero, moved for a mistrial shortly before closing arguments Friday, based on reports that jurors had discussed the case at a local restaurant.”

Finally, note that the school didn’t even have active content filtering in place (not that it would have probably made a difference).

The fact that there were pornographic images on the computer means nothing, because whenever a popup launches, the images in the popup are stored on the computer. The fact that the logs indicated that she “visited” the sites also means nothing, since when the porn popups come through, they get logged as well.

The fact that the machine was never scanned for spyware by the investigating authorities is outrageous. In fact, this alone should have resulted in the case being dismissed, as the defense found a major spyware infection by their expert forensic evidence.

Was justice done here? A bad spyware infestation can splatter a machine full of porn popups and it’s a bit unnerving to think that a teacher could get hard prison time for something that was likely to have been completely innocent.

We need far more evidence than what is available to come to the conclusion that “justice was done”. In fact, all the available evidence shows quite the opposite — that this might just be a grave miscarriage of justice.

If you feel the same, post a comment on Preston’s blog.

And, if you’re wondering what a porno-spawning spyware infestation looks like, here’s some examples from Harvard researcher Ben Edelman:



I also should note that in a conversation with the defense attorney today, he did tell me that his computer experts were not able to provide all the evidence in court. For the appeals process, we have made our own experts available to the defense on a pro-bono basis for any analysis of the infected machine.

Alex Eckelberry