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posted by on Wednesday March 22 2017, @08:19AM   Printer-friendly
from the better-treatment-than-if-he's-guilty dept.

On Monday, a US federal appeals court sided against a former Philadelphia police officer who has been in jail 17 months because he invoked his Fifth Amendment right against compelled self-incrimination. He had refused to comply with a court order commanding him to unlock two hard drives the authorities say contain child porn.

The 3-0 decision (PDF) by the 3rd US Circuit Court of Appeals means that the suspect, Francis Rawls, likely will remain jailed indefinitely or until the order (PDF) finding him in contempt of court is lifted or overturned. However, he still can comply with the order and unlock two FileVault encrypted drives connected to his Apple Mac Pro. Using a warrant, authorities seized those drives from his residence in 2015. While Rawls could get out from under the contempt order by unlocking those drives, doing so might expose him to other legal troubles.

In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's because the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already know there's child porn on the drives, so Rawls' constitutional rights aren't compromised.

[...] The suspect's attorney, Federal Public Defender Keith Donoghue, was disappointed by the ruling.

"The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination."

-- submitted from IRC


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  • (Score: 4, Informative) by romlok on Wednesday March 22 2017, @11:34AM (2 children)

    by romlok (1241) on Wednesday March 22 2017, @11:34AM (#482655)

    the government convinced the court that it already knows what is on the hard drives. Hence, the guy will not be incriminating himself by doing what the government demands. But, if they already have proof of what's on the disks, then they don't need him to unencrypt them, do they?

    I came to write the same thing. If they truly know, then they must already have evidence, and can use that evidence to secure a conviction in court. If they don't have evidence, then all they have is suspicion, not knowledge.

    Why doesn't the guy just say he has forgotten the password after all this time? And what, exactly, would the government do in that case?

    AIUI, that's been his story since the beginning. So you're now seeing exactly what the government does in that case: 17 months and counting.

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  • (Score: 3, Interesting) by Immerman on Wednesday March 22 2017, @02:31PM

    by Immerman (3985) on Wednesday March 22 2017, @02:31PM (#482721)

    You forgot option 3: they already have evidence that they acquired illegally, or by using secret tools whose existence they're not allowed to reveal, making the evidence inadmissible in court.

    Now, why an honest judge would allow such shenanigans I don't know, but the list of deeply honest judges seems awfully short some days.

  • (Score: 3, Interesting) by Gaaark on Wednesday March 22 2017, @10:52PM

    by Gaaark (41) on Wednesday March 22 2017, @10:52PM (#482980) Journal

    My guess is that they KNOW what is on the hd, they want the info it contains on WHERE he got the evidence (pics, videos) so they can incriminate other as well.

    --
    --- Please remind me if I haven't been civil to you: I'm channeling MDC. ---Gaaark 2.0 ---