                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 2, 2016
               Plaintiff-Appellee,

v                                                                  No. 321243
                                                                   St. Clair Circuit Court
THOMAS JOSEPH AGAR,                                                LC No. 13-001935-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ.

GLEICHER, J. (concurring).

        “[A] criminal trial is fundamentally unfair if the State proceeds against an indigent
defendant without making certain that he has access to the raw materials integral to the building
of an effective defense.” Ake v Oklahoma, 470 US 68, 77; 105 S Ct 1087; 84 L Ed 2d 53 (1985).
The “raw material” integral to Thomas Agar’s defense amounted to $1,500, the sum needed to
hire an expert in computer forensics. The prosecution’s case rested entirely on the testimony of a
well-trained, experienced computer forensics investigator. Agar was relegated to constructing a
rebuttal to the prosecution’s expert through cross-examination uninformed by consultation with a
similarly-skilled computer specialist. The result was a fundamentally unfair trial. I fully concur
with my colleagues’ decision to reverse defendant’s computer-related convictions, and write
separately to expand on the majority’s due process analysis.

        The prosecutor charged defendant with three crimes arising from defendant’s alleged use
of a computer to traffic in child sexually abusive material: distributing child sexually abusive
material, MCL 750.145c(3), possessing child sexually abusive material, MCL 750.145c(4), and
using a computer to commit a crime, MCL 752.796. Each offense requires the prosecution to
prove beyond a reasonable doubt that defendant knowingly engaged in prohibited conduct. To
convict a defendant of distributing child sexually abusive material the prosecution must prove
that the defendant “distributed . . . the material with criminal intent.” People v Tombs, 472 Mich
446, 465; 697 NW2d 494 (2005). “[T]he mere obtaining and possessing of child sexually
abusive material using the internet does not constitute a violation of MCL 750.145c(3).” Id.
Similarly, MCL 750.145c(4) requires that the prosecution prove that a defendant “knowingly
possesses” child sexually abusive material. Our Supreme Court has explained that “unless one
knowingly has actual physical control or knowingly has the power and intention at a given time
to exercise dominion or control over a depiction of child sexually abusive material . . . one
cannot be classified as a ‘possessor’ of such material.” People v Flick, 487 Mich 1, 13-14; 790

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NW2d 295 (2010). MCL 752.796 penalizes “the use of a computer to commit a crime,” People v
Loper, 299 Mich App 451, 466; 830 NW2d 836 (2013), which inherently involves intentional
conduct.

        Agar’s sole defense was that he never intentionally or knowingly downloaded child
sexually abusive materials. Agar explained that he often downloaded mainstream adult and
animated movies into his home computer system, which he had personally assembled from a
“bare bones” kit. He had also repaired computers for students attending the Lawrence Tech
Osborn Center, which sometimes involved copying a student’s hard drive into his own
computer’s hard drive. During one such effort, Agar discovered that he had inadvertently copied
a peer-to-peer file-sharing program called “Shareaza,” which then took up residence in his hard
drive. The Shareaza software harbored and disseminated the child sexually abusive material
discovered by St. Clair County Sheriff’s Detective Eric Stevens. Agar’s defense hinged on proof
that the child sexually abusive material found by Stevens could have made its way to Agar’s
computer inadvertently, through Shareaza.

        Peer-to-peer networks such as Shareaza are “so called because users’ computers
communicate directly with each other, not through central servers.” Metro-Goldwyn-Mayer
Studios, Inc v Grokster, Ltd, 545 US 913, 919-920; 125 S Ct 2764; 162 L Ed 2d 781 (2005). The
software allows users to search for files located in shared folders created by and stored in
software used by other computers. A requesting user can download a sought file directly from
the computer being “shared” through the software. Id. at 921. “The copied file is placed in a
designated sharing folder on the requesting user’s computer, where it is available for other users
to download in turn, along with any other file in that folder.” Id. Caselaw seems to indicate that
Shareaza’s default settings can provide for automatic, reciprocal sharing “and required additional
steps if a user did not want to share files with others using the program.” United States v
Spriggs, 666 F3d 1284, 1286-1287 (CA 11, 2012) (emphasis added).

        Agar and his counsel sought to investigate Shareaza’s technical capabilities and its
operation within Agar’s computer by retaining Larry Dalman, a retired Michigan State Police
officer and forensic computer expert. The trial court denied this request, declaring that although
it seemed “possible” that defendant’s version of events could be true, funding for an expert was
unnecessary because “that’s a fairly simple concept unless there’s a whole lot more to it than I
know[.]” The trial court encouraged defense counsel to “do[] your own investigation and
research into that to find out what you can and cannot learn on that subject to prepare yourself
for cross-examination.”

       Detective Stevens testified as an expert in computer forensics in support of the
prosecutor’s position that regardless of how Shareaza wound up on defendant’s computer,
defendant deliberately used Shareaza to share illegal videos. As was evident from Stevens’
testimony and defense counsel’s cross-examination, the trial court vastly overestimated the
“simplicity” of the subject matter or the ease with which helpful admissions could be elicited.




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Further, cross-examination, no matter how skilled or effective, is not a substitute for the
testimony of an opposing expert witness.1

        The Due Process Clause guarantees that an indigent defendant facing the judicial power
of the State must be afforded “a fair opportunity to present his defense.” Ake, 470 US at 76.
While this principle does not require a state to “purchase for the indigent defendant all the
assistance that his wealthier counterpart might buy,” it does obligate the state to provide the
“ ‘basic tools of an adequate defense[.]’ ” Id. at 77, quoting Britt v North Carolina, 404 US 226,
227; 92 S Ct 431; 30 L Ed 2d 400 (1971). In Ake, the “basic tool” was the assistance of a
consulting psychiatrist. The United States Supreme Court framed the issued presented in that
case as “whether, and under what conditions, the participation of a psychiatrist is important
enough to preparation of a defense to require the State to provide an indigent defendant with
access to competent psychiatric assistance in preparing the defense.” Ake, 470 US at 77.2 The
Court analyzed this question by weighing the three guideposts for determining the process due in
a particular case as set forth in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d
18 (1976):

       First, the private interest that will be affected by the official action; second, the
       risk of an erroneous deprivation of such interest through the procedures used, and
       the probable value, if any, of additional or substitute procedural safeguards; and
       finally, the Government’s interest, including the function involved and the fiscal
       and administrative burdens that the additional or substitute procedural
       requirement would entail.

        As the Supreme Court observed in Ake, “[t]he interest of the individual in the outcome of
the State’s effort to overcome the presumption of innocence is obvious and weighs heavily[.]”
Ake, 470 US at 78. The State’s interest is solely economic: husbanding the public fisc. This is
so because “the State’s interest in prevailing at trial – unlike that of a private litigant – is
necessarily tempered by its interest in the fair and accurate adjudication of criminal cases.” Id. at
78-79. “[A] State may not legitimately assert an interest in maintenance of a strategic advantage
over the defense, if the result of that advantage is to cast a pall on the accuracy of the verdict


1
  Defense counsel’s cross-examination proves this point. Although counsel took to heart the trial
court’s instruction to perform research and “find out what you can” about the subject matter,
counsel was stuck with Stevens’ answers. For example, counsel inquired whether Shareaza’s
default setting included sharing. Stevens indicated that the user had “to check a box. You have
to indicate: Yes, I do want to share.” This answer appears contrary to the evidence discussed in
Spriggs. In any case, it is a question that Agar was entitled to ask his own expert, and a subject
potentially ripe for disagreement by an opposing expert.
2
  A number of courts have applied Ake’s reasoning to a defendant’s requests for expert assistance
in areas other than psychiatry. For a list and summary of the cases, see Giannelli, Ake v.
Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L
Rev 1305, 1367-1368 (2004), and Moore v State, 390 Md 343, 409 n 12; 889 A2d 325 (2005)
(“The majority of courts have concluded that Ake extends beyond psychiatric experts.”).


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obtained.” Id. at 79. The Supreme Court determined in Ake that the first two Eldridge criteria
weighed heavily in the defendant’s favor: “We therefore conclude that the governmental interest
in denying Ake the assistance of a psychiatrist is not substantial, in light of the compelling
interest of both the State and the individual in accurate dispositions.” Id.

        Agar’s interest in leveling the expert-witness playing field is compelling. And even
assuming that the prosecution’s interest in shielding the county from economic intemperance had
any legal legitimacy, the monetary stakes here were minimal: $1,500. Investment of this rather
insubstantial sum in Agar’s defense would have affording him “meaningful access to justice,” id.
at 77, and likely spared the County the far greater costs involved in a new trial of this case.

        The last Eldridge component examines the “probable value of the additional or substitute
procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected
interest if those safeguards are not provided.” Id. In Ake, the Supreme Court’s evaluation of
this factor centered on the critical role played by a psychiatric expert in a trial involving a
defendant’s mental condition. The Court elucidated:

       [T]he assistance of a psychiatrist may well be crucial to the defendant’s ability to
       marshal his defense. In this role, psychiatrists gather facts, through professional
       examination, interviews, and elsewhere, that they will share with the judge or
       jury; they analyze the information gathered and from it draw plausible
       conclusions about the defendant’s mental condition, and about the effects of any
       disorder on behavior; and they offer opinions about how the defendant’s mental
       condition might have affected his behavior at the time in question. They know
       the probative questions to ask of the opposing party’s psychiatrists and how to
       interpret their answers. Unlike lay witnesses, who can merely describe symptoms
       they believe might be relevant to the defendant’s mental state, psychiatrists can
       identify the “elusive and often deceptive” symptoms of insanity and tell the jury
       why their observations are relevant. Further, where permitted by evidentiary rules,
       psychiatrists can translate a medical diagnosis into language that will assist the
       trier of fact, and therefore offer evidence in a form that has meaning for the task at
       hand. Through this process of investigation, interpretation, and testimony,
       psychiatrists ideally assist lay jurors, who generally have no training in
       psychiatric matters, to make a sensible and educated determination about the
       mental condition of the defendant at the time of the offense. [Id. at 80-81(citation
       omitted).]

        The prosecution insists that no such risks exist in this case because Detective Stevens
thoroughly discredited the defense theories raised by Agar’s counsel during cross-examination.
This argument proves too much. Were it accepted, no appellate claim challenging a denial of
funding for expert assistance could ever succeed; the jury’s guilty verdict would suffice to
eliminate any possible merit to an unheard defense expert’s opinions.3 As in Ake, Agar needed


3
  The prosecution’s argument is essentially one of harmless error. At least one court has found
the denial of funding for a necessary expert structural error not subject to review for

                                                -4-
an expert’s technical assistance to educate counsel regarding which questions to ask and which
theories to pursue. Agar’s guilt depended on proof beyond a reasonable doubt that he personally
had downloaded the child sexually abusive images. An independent examination of Agar’s
computer would have guided Agar’s counsel and potentially discredited Stevens. Absent record
evidence of Dalman’s findings, it is simply impossible to determine whether Stevens’
characterization of the evidence is irrefutable.4

         Our Supreme Court recently emphasized that counsel’s failure to secure expert
assistance in preparing and presenting a defense constitutes ineffective assistance of counsel
when expert testimony is central to the prosecution’s proofs and the underlying technical issues
are “highly contested.” People v Ackley, 497 Mich 381, 393-394; 870 NW2d 858 (2015). Here,
counsel did exactly what was needed to perform effectively: he sought expert help. By denying
counsel an opportunity to obtain the assistance needed to effectively represent Agar, the trial
court tied one hand behind counsel’s back. The fight at the trial focused solely on whether Agar
knowingly and deliberately downloaded the child sexually abusive material. The trial court’s
ruling ensured that Agar would lose that fight. My views echo those of the majority, and I join
its opinion in full.



                                                             /s/ Elizabeth L. Gleicher


harmlessness. Rey v State, 897 SW2d 333, 345 (Texas Crim App, 1995). As the Court pointed
out in Rey the Supreme Court in Ake reversed and remanded for a new trial without consideration
of harmlessness.
4
  Recent exposés regarding the fallibility of prosecution scientists and laboratories should
counsel pause when evaluating the validity of unchallenged testimony. See Hinton v Alabama,
__ US __; 134 S Ct 1081, 1090; 188 L Ed 2d 1 (2014):
               That the State presented testimony from two experienced expert witnesses
       that tended to inculpate Hinton does not, taken alone, demonstrate that Hinton is
       guilty. Prosecution experts, of course, can sometimes make mistakes. Indeed, we
       have recognized the threat to fair criminal trials posed by the potential for
       incompetent or fraudulent prosecution forensics experts, noting that “[s]erious
       deficiencies have been found in the forensic evidence used in criminal trials . . . .
       One study of cases in which exonerating evidence resulted in the overturning of
       criminal convictions concluded that invalid forensic testimony contributed to the
       convictions in 60% of the cases.” Melendez-Diaz v Massachusetts, 557 U S 305,
       319; 129 S Ct 2527; 174 L Ed 2d 314 (2009) (citing Garrett & Neufeld, Invalid
       Forensic Science Testimony and Wrongful Convictions, 95 Va L Rev 1, 14
       (2009)). This threat is minimized when the defense retains a competent expert to
       counter the testimony of the prosecution’s expert witnesses; it is maximized when
       the defense instead fails to understand the resources available to it by law.




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