S37 E2: Don’s Copy | The Expert Witness

What are his plans and how does it all affect you?

“The Power and Politics Podcast answers these questions and more six days a week.”

We have you covered from all angles. A reporter roundtable joins us every Friday and you can get caught up with the weekly rep every Saturday. Follow and listen to Power and Politics wherever you get your podcasts. This is a CBC podcast. We begin somewhere completely different. With a different guy who lives in the mountains in a parallel universe called

Colorado. My name is Eric Zell. I am an attorney in a small two-person ball firm in Boulder, Colorado. Boulder is over a thousand miles away from Akron and is an even further distance culturally from Summit County's stack of unsolved murders. There is an autonomous violent crime. There's now a lot of like promissades and home invasions and robberies and sexual assaults and stuff. It's kind of why I'm here. It's trying to raise a family and, you know, not work too hard.

“So this is Eric Zell. Small firm doing important work, lots of mountain biking.”

All right. His entry into our story begins in 2021. When someone he'd never met before,

called him up out of the blue, and was under investigation for possession of child porn ography. Zell took the case. His client turned over his computer and smartphone to the cops. And when they were given back to him, there was no child sexual exploitative material in the devices. But then, surprisingly, rather than drop the charges, the police arrested him and he was named in the press. In the affidavit for the arrest warrant, they had talked about cyber check.

And I had never seen that before. Zell was sent a full cyber check report by the prosecution.

So he read it and tried to make sense of it. Based upon this report, they had procured evidence that

my client had access certain C-SAM or child sexual exploitative materials.

“It was baffling to him, not because of what it alleged. But because it was the only thing they sent.”

The cyber check report was the sole piece of evidence in my case. There was nothing on the devices. There was no access or connection. There was nothing. All they had was cyber check saying, "Here, these images are, and we got them from him." And when I saw that, I was like, "This doesn't make any sense to me. I probably would have used some profanity, but my initial got check was that this is something that is not true."

I prosecuted there for a little over six years, but I've been practicing for about 15 or 16 at the point. And Brex, particular beat in the prosecutor's office, wasn't especially heavy one, with the most monstrous crimes imaginable. I was doing heck the fault. Tell crimes and click that. Difficult work made all the harder by bumping into the same issue again and again on her cases. It's not as easy as rating somebody's home and finding a thumb drive with hundreds of images of

CSAM. These online predators were getting too good at covering their tracks. You are going to have people that are very technologically savvy and look at it on the dark web, or share it in these forums that otherwise might not be downloaded on your computer. But then, in the fall of 2021, Brex heard her colleagues talking about something new. That could catch these guys when they least expected it.

And so that was why cyber check was so attractive. Some local police in Longmont, outside of Boulder, had signed up for this new thing, capable of finding the predators operating deep in the dark web and that it could connect their actions to their real life identities. It seemed to provide law enforcement with the ability to make that connection. That's like, oh my gosh, this is great. This is exactly what we need.

I started to kind of dig down and see what cyber check was all about and kind of educate

“myself a little bit more about it. When she got into it, Brex learned that the investigators”

have been working with, the creator of the tech himself, a Canadian named Adam Mosher. She's accommodating. He's charming, I guess, would be a good word. He's very easy to talk to. Over the coming weeks, Brex and Mosher would sit and talk on video calls. He was too his credit quite patience in explaining cyber check and what it meant. Mosher appeared on her screen to be a man in his 40s. His voice was gruff and unmistakably

Atlantic Canadian. He was bespectacleed, bald, and available. Always available to answer

anything that Brex threw at him. Adam Mosher and I probably had between zoom calls and phone calls. We probably spoke over a dozen times because to be candid with you, I am as fairly technologically incompetent so it was kind of an uphill battle for me because I wasn't understanding the technology. If Brex wanted to use this thing in court, she needed to at least sound like an expert on it. But even with her own private tutor, Brex kept coming away from their conversations

“still not fully grasping what she just heard. I think it's difficult to understand and”

sift through. It's technology is not easy to break down and really understand at least for me. The technology really is above a lay person's knowledge. Brex cut herself some slack. The world of open source information and AI is not easy stuff for a novice to get right away. So she continued on, diligently writing her questions down for her next call with Mosher. Meanwhile, in a different part of town, Zale was looking at the same report, Brex was.

So I started just kind of hauling around. I called a friend of mine who was a state public defender than a federal public defender and is an expert in federal travel pornography.

Then I asked all my friends, basically in the metro area, not just the folder, but in Denver,

and elsewhere. If anyone had ever heard of it, and no one had ever heard of this before. Zale wondered, was long-month police department policing a sleepy population of less than 100,000

“people really the world's first crime fighting unit to wield a game changer like this?”

It seemed unlikely. And so that's when I retained an investigator and an expert. Zale brought them up to speed and they set out. So we started to look into cybercheck because no one had heard of it, so we were really starting from scratch. Across the aisle, Brex was considering hiring an investigator herself. After having interacted so much with Mosher, she began to notice some concerning patterns. He's very easy to talk to. He is also someone that makes promises and doesn't keep them.

Mosher has his own version of how things went down here in Colorado and elsewhere, but that's for later. For Brex in this moment though, it felt like whenever she needed something tangible from Mosher, the same thing would happen. He continued to tell me, "Yes, I've done that to you tomorrow, or I'll finish this, draw finishing that, or I'll finish that, because it's a exidio that I found

and never did." When she'd follow up or express concerns,

I kept being given generic PowerPoint presentations and printouts generally showing cyberchecks capability. She'd hang up the phone from Mosher and be like, "We just spoke for half an hour and I gained nothing." He never actually provided anything of substance at all, but I was getting a very general overview of what it should be doing and I never actually got any results that helped me verify that the information was legit. It got to the point where

Brex was forced to take a step back and be like, "Am I the only person that can't figure out how this is useful?" So she brought on some help and it turned out it wasn't just her. Neither the detectives nor I nor an investigator was able to actually see what we were being told.

Bro, that man is nude. Yeah, certainly a red flag started to go off.

“While the prosecutor's office were budding up against the realities of its shiny new thing,”

Eric's client John Doe was budding up against the reality that no matter how this turned out, his life was forever changed. Imagine, one day out of the blue, you find out that the police are investigating you and not only that, but they are investigating you and they're accusing you of this kind of crime for viewing these kinds of images of children. From the beginning had expressed his innocence. Unequivocal. You have a job and a partner and children and a community,

but suddenly he was in the media. They're publishing your photo. Older is 100,000 people, right? I mean, everyone knows everyone and an accusation of being in possession of child pornography

is because everyone thinks you did it, right? First, you lose your job. He had work issues as a

result of this and then you lose everything else. He was kicked out of the house, couldn't see his kids.

“And all of this happens before you've even faced a trial. That's just the simple reality, right?”

When the government shows up and arrested you and the judge signs off on a warrant, everyone thinks you did it. That power of that accusation is immense and life-altern. If all of this could be done on the merit of one report, Zale and his team wanted to get to the

bottom of where exactly it came from. So basically we found out it was a small Canadian company

it had a couple of people and they were claiming technology that quite frankly seemed implausible. Zale's belief that Mosher and his company were bogus continue to grow, but he didn't have anything to prove it. But then someone on Zale's new defense team did a very small, very smart thing

“that would prove to be tremendously useful. He said a Google alert for the word, cyber check.”

Prime Minister Mark Carney has finally secured a majority for this liberal government. What are his plans and how does it all affect you? The power and politics podcast answers these questions and more six days a week. We have you covered from all angles. A reporter round table joins us every Friday and you can get caught up with the weekly wrap every Saturday. Follow and listen to power and politics wherever you get your podcasts.

It won't shock you to learn that the copy machine is the rhythmic beating heart of any law office. When some of my friends became lawyers in our 20s, I used to imagine them center stage, starring in a courtroom drama every day. Staring the jurors in the eyes, imploring them to consider their carefully spun story or a viscerating a bad guy on the stand. You can't handle the truth, et cetera, et cetera.

But over the years, usually over a shared pint, my lawyer friends will paint a much less sexy picture for me. When I ask them how their work's going, they'll say, imagine reading documents and while you're reading the documents, a paralegal will wheel into your office more boxes of more documents, all of which are required reading, none of which are enjoyable reading. Imagine this plays out into infinity, or at least until a

land slide of banker's boxes and highlighted packets mercifully will land slide towards your desk, bearing you taking your life. Obviously, I met most of my lawyer friends at theater school. Back in Akron, Don Emory were about to create a document landslide of their own. They couldn't find anything on the internet to help them figure out what cybercheck was,

that explained cybercheck. All I had at that point was Adam Moses' transcript from both

“of those murder trials in some accounting. When Don went to his copy machine to print out the”

first two transcripts, he had no idea how many trees this cybercheck chapter in his life would

ultimately kill. He didn't know that he'd lose a whole corner of his office to an imposing stack of boxes, angrily labelled in Sharpie, cybersecurity. When it began, it was just with the first 70 pages, and a prosecutor asking, "Could you please introduce yourself to the jury?" My name is Adam Mosher, M-O-S-H-E-R, and I'm the CEO of a company called Global Intelligence. I have a copy of this court transcript, the first ever conviction that you cybercheck,

a Deris Black, now in a cell for the rest of his life. This copy was given to me by Don.

It's Don's Copy. I know because it says in big block letters, Don's Copy.

Because the last thing I want to do is give my copy with all my curse words on it to the judge. Don needs somewhere to put his feelings, and that place is Don's Copy. And it's an expression of how pissed off I am as I'm rating this. In the margins of Mosher's testimony, as he explains how cybercheck works, Don's pen is emphatically writing the questions he thinks

“the defense counsel should have asked. Crucial questions like, says who, and what the hell?”

Like when Mosher claims that his AI product is better and faster than human investigators. G-T-F-O-H, Mosher goes so far as to say, "If you have a thousand intelligence analysts, and you put them in a room for 30 days, they will come up with this exact same information." F-O-F, Don couldn't believe these statements went unchecked. You'll see a lot of WTF. When Mosher claims that cybercheck returns information within 80% or higher accuracy rating,

you know what the fuck, according to who. Sometimes a question mark and an exclamation point completely made up number, Don writes in all caps, and if I'm really pissed off, it's in red.

“He's using words that are just made up, right? Like cyberprofile. I mean, that's a made up word.”

It wasn't just the pseudo-tech word salad that raised Don's eyebrows. It was Mosher's origin story. As the prosecutor asked him questions with the intention of presenting him as a credible witness, a very fuzzy biography began to emerge. This Canadian, who no one had ever seen before, claimed to have spent the last 20 years of his life in the quote, "siber forensic space." He mentioned that he had a police college background, and that he'd spent, quote,

"a lot of time at various institutions honing his skills." Accumulating what skills wear, how, what Don underlines in his copy. While Don's copy is an exercise in giving something your least generous read. When I read it, it struck me a little differently. To me, Mosher does seem to speak evenly, or particularly even. Maybe he doesn't have a gift for breaking things into layman's terms for a jury,

but he speaks exactly like what he says he is, a text of art, who'd made something that the world

had never seen before. Something capable of scouring the entire internet, which would retrieve only

the pertinent morsels of information, and then lay the goods at his feet, like a hand to its master. The tech was inside baseball, but Mosher, at least, from Don's perspective, was something he could get started on. A physical human, he, could be looked into. So Don flipped through his roll-addicts to hit up one of his overqualified the PI's. Former police officer, former employee of the some mechanic prosecutors office, was a private investigator,

for us. How can this Mosher do, who claims to have worked extensively with law enforcement, have no trace of anything about him anywhere? I said, "Here's Mosher, here's a CV, help me out, man."

By this point, Don had read and re-read the transcripts of Mosher's testimony from the murder trials, a dozen times. And each time there would be new details that would pop for him. Mosher, for instance, said that he had like a satellite office in Indiana. And I said to my investigator, "Go find this place. Is it a real building?"

“I mean, what the fuck is going on? Are there employees? Are there people there? What is it?”

And who is he? There have to be some employees, someone bumps into Mosher in the elevator. Find that person and talk to them. So with his notebook, the investigator set out to see what he could find. But when he came back to Don, it was with a shrug. It was like chasing a ghost. The PI explained that even when he did manage to track down people in

Mosher's orbit, he couldn't get anything out of them. He was so elusive and we really couldn't get much traction. It was really like trying to grab onto smoke.

Meanwhile, in Boulder, Eric Zale finally went to see Breck Rush in the prosecutor's office

to offer her his professional opinion. I think I told the prosecutor that he's a grister. When you have a defense attorney who says your expert is a total fraud,

“you kind of chuckle and say, "Okay, you need to provide me a little bit more information than that."”

And Eric's like, "No, you need to provide me with more information." I want the algorithms and the information of his software so that I can try to replicate this. Because the report that you've given me, I don't believe that he has the ability to produce this based upon what he's claiming. You're saying that you can prove that my client went to these parts of the internet to look at

these types of illegal materials. And you did this through legal means.

Prove it then. The prosecutor basically said, "He won't give it to me because it's

proprietary." Wait, even the prosecutor's office hasn't been shown how it works. So Zale was like, "Screw this. I'm going to the judge." And I said, "Hey, judge, they need to give me not just this report, which is like prime of fascia implausible." Lawyers left their Latin. They need to give me the backstory to the report. I need the data.

And I also need a bunch of other stuff as well. I need to know what other cases this was used in in the country because I need to look up to see what happened. And also, we need to figure out whether or not Mosher has ever been in a court house before. I need to know if he's been qualified as an expert. The judge was mostly unmoved. She said, "You don't get the algorithms.

You're not entitled to it at this stage." The judge sided with the prosecution, but Judge Zalemonie was very specific that she wanted a list of the cases where Adam Mosher had testified as an expert, which is ultimately what broke the case of art. Meanwhile, in Akron, Don and Marie were working on the case of teenager Javion Rankin, and had been having some very similar conversations in their parallel universe.

"Give me the software. Give me the algorithms. Give me the AI that Adam Mosher says does

this incredible feat of putting my client at the scene of the crime.

I need to examine it." The response we got was from the prosecutor's office as well. He doesn't work for us, so we don't have it. Oh, you don't have the thing that places my client at the murder scene? I'm like, "I'll fuck you." I mean, this is your evidence. You want to submit it. You've got to go get it, and they just refuse. By now, it's early summer, 2023. More than two years since Javion Rankin had been sat in a cell.

And now a hearing on this case was scheduled that was to be attended by the judge, the prosecution, Don, and a surprise guest. So I was in my office. Everybody was remote. No one was in the courtroom, and I said, "I don't even know if they're going to bring Mosher to this hearing." And if they do, should I cross examine him? And Noah was like, "No. Why are you going to give

“that person an opportunity to speak?" Keep it simple. All you need to put out there is that this”

tool is unproven and untested. Get cybercheck thrown out. Get Javion Home. Mosher appeared on the screen with his background blurred, and scanned very plausibly as the CEO

And they just start asking Adam questions. As Mosher spoke, Don felt that familiar WTF energy that it so possessed him in the margins of Don's copy. Every time he would move on to a new topic, it didn't really pass the smell test. Noah and Marie shared an eye role as they listened to Mosher. It's like digital gabbling of speak. The intelligence loop cannot be broken. It can only be completed. What does that mean? If the tools are a quiver, and this is an arrow, none of it makes any sense to

me. And if these protracted analogies, and so you would never really get the thing.

Eventually, Don couldn't help himself. I knew I had to jump in and get in the ring with him and try to figure out what the hell this thing was. I was really kind of winging it, and I realized very quickly that Adam can't answer a yes or no question. It's impossible. Don would ask a question

“and Mosher would just start monologueing again. I would stop him and say, Adam, do you remember the”

question I asked? And sometimes you wouldn't even remember the question. I know as someone who's been cross examining people for 30 years that that's a sign that they're lying. It was a risk to cross Mosher.

But this was exactly how Don hoped it would go. So now I'm watching the judge and I see the judge

getting a little bit irritated, and now I know him onto something. But then, with Mosher flailing for all to see, the hearing came to an abrupt end, and Don stood on steadily, not knowing if any of the spaghetti he just thrown into the virtual courtroom would stick. The good news came shortly after. Judge Roland's said she was going to grant the motion to compel an order at a Mosher to

“provide his software. The only way that she would allow cyber check to be used is evidence in this”

case was if the defense could see inside it. If Don was given full access to its source codes and algorithms, and Mosher was steadfastly refusing. And even better, while the prosecution was making an appeal, what must happen is the defendant the accused must be released on the signature book. Javion Rankin was free to leave jail and go home, at least for now. When you're a defense attorney, the victories can feel cruelly infrequent. But this, this was a good one. In Don's view, the police

threw some weird Canadian technology at him, and Don was able to decembery mottombo it out of here. Javion Rankin had to wear a judge-ordered ankle monitor, but he was out. This was the system working. Right? Okay, we got to be done. But we're not. Time would reveal that the Rankin case was about one shiny star in the galaxy of what some account he had planned for their shiny new AI tool. The tell was sitting right there. Why did they appeal the judge's decision to throw cyber check

“out? Why did they let someone charged with aggravated murder walk with a signature?”

Because they had big things in the queue. By this time, I have a second murder case,

Dishon Coleman, and I get a cyber check report in that case, too. And Dishon Coleman wasn't the only defendant in Akron with a cyber check report appearing in his case file. All over town, other lawyers, like the attorneys for Philip Mendoza, Martell King, ledley Lopez Bobby Lee-Bell, D.R. Ray, Antonio Miller, Rita case and Demontan Demetrius car were now seeing it, too.

Mostly black male defendants who'd been arrested on cold case murders, not because of new witnesses, DNA evidence, or the emergence of a new motive. But because cyber check had pointed in their direction. It wasn't until they utilized the new AI technology that they were able to arrest him. But his luck should have it. Dawn's local newspaper did something that set off a very fortuitous chain reaction. They published a story about this Javion Rankin win, and that story

acted as a flair, which set off a Google alert in a small office in Colorado, set for the word

You've been listening to the expert witness from CBC's Uncover. The series is produced by RAW

“for CBC. The show was written and hosted by me Sam Mullins. Our producer is David Waters.”

The series was developed and reported by David Waters and Jessica Hatcher. Our editor

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“Cecil Fernandez and Chris Oak. Tonya Springer is the senior manager and RF Nurani is the director of CBC podcasts.”

Hey guys, Sam here. We'll be back next week with a brand new episode. But between now and then, consider listening to one of the many excellent uncover seasons that came before the expert witness. My personal favorite is the village, which is season three. In it, host just in laying explores the numerous cases of missing and murdered men in Toronto's gay community, dating back to the 1970s. You can find the village wherever you're listening to me now,

by scrolling back in your uncover feed or by finding the drop-down menu with all the seasons. And make sure to follow us while you're at it. For more CBC podcasts, go to cbc.ca/podcasts