The case against Dr. Mark Rettenmaier, a cancer specialist from California, is turning out to be an unpleasant reminder of just how often our system of justice can be abused via trivial slip-ups in law enforcement processes. This individual was found to have child pornography on his computer and phone and was arrested on the applicable charges. The way he was caught up is the bone of contention in this case.

Rettenaier had suffered a failure in his laptop in 2011 and took it to the Geek Squad at Best Buy to recover his data. In the process of doing so, the geeks discovered the incriminating image or images. (Including a naked, nine-year-old girl.) They reported the discovery to the FBI who proceeded to investigate. They obtained a warrant and seized Rettenmaier’s home computers and phone where they found “hundreds of illicit, pornographic photos.” Fairly open and shut case, right? Apparently not. A judge has tossed the case because of some sort of “improper” relationship between Best Buy and the FBI, as well as where and how the original evidence was discovered. (Washington Post)

Carney said that search was illegal because it wouldn’t have been authorized if FBI agents had accurately described what was originally found on Rettenmaier’s computer in Kentucky. Special Agent Cynthia Kayle “falsely stated in the affidavit” for the search warrant “that the [child] image was child pornography,” Carney said in a May hearing in federal court in Santa Ana, Calif. “It was child erotica, the possession and viewing of which is not unlawful.”

The judge noted that Kayle also failed to state that the image was found in the unallocated space of Rettenmaier’s computer and that three separate searches of the hard drive were done to find the image. “This one image of child erotica,” Carney said, “is simply not sufficient to search Dr. Rettenmaier’s entire home, the place where the protective force of the Fourth Amendment is the most powerful.”

The judge then suppressed all the evidence seized from Rettenmaier’s house, including the photos on his phone.,

There’s a fine line between respecting constitutional rights and clever lawyering, with this looking very much like the latter. It sounds like the Doctor’s attorneys were throwing everything they could find at the wall to see if something would stick. One issue was the practice of the FBI paying small bits of reward money to Best Buy technicians who notified them when potentially illegal images were discovered. Also, the image in question had been deleted (as you might expect him to do before turning over the computer) but was recovered from “unallocated” space. And finally, there was the argument that the picture of the nude child was “child erotica” which apparently isn’t illegal (!?!?), so all of the actual hardcore material discovered on his phone was fruit of the poisonous tree. After prosecutors missed a deadline for filing an appeal they basically gave up and the judge dumped the case.

Every time I hear the phrase “fruit of the poisonous tree” these days I get a sick feeling. A simpler way to explain it is to say that you’re obviously guilty and there’s plenty of evidence to point to the fact that you are guilty, but your attorney has found a glitch in the evidence custody chain or a technicality in the process of obtaining a warrant which means that the court has to toss out all that evidence, pretending it never existed. Nobody even seems to be trying to imply that Dr. Rettenmaier isn’t guilty. Just that the FBI made a dubious call in following a lead which wound up leading to evidence of a very real crime.

This should serve as another reminder that we could use something similar to the “good faith clause” under discussion in some states today. When law enforcement goes about their normal duties and some sort of clerical error or misinterpretation takes place which “taints” the investigation, but it’s obvious that they were operating in good faith and seeking to uphold the law, exceptions should be possible.

The problem here isn’t Rettenmaier, but the courts. I don’t know what the solution is, but there surely must be some way to curb this trend and allow law enforcement to do their jobs. Perhaps “justice” prevailed here for those who always suspect the worst of the criminal justice system, but there are still a bunch of children out there who were clearly victimized and one of the people involved is walking free. If that makes you feel better about your country you may be overdue for a long session of soul searching.

Update (Ed): I wrote about this case in January, when the judge decided to look at the relationship between Best Buy and the FBI. I agree with Jazz — this is a case of overzealousness on the part of the judge, and I hope prosecutors appeal the decision quickly.