S37 E3: Ducks in a Row | 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. So much of practicing law boils down to looking back through time,

finding similar cases and studying how they played out.

“But what happens if when you look into the past, there's nothing there?”

What happens when you're in uncharted territory? And you realize you have no choice, but to make history. I'm small. I'm microscopic law, right? I'm just a small town, country lawyer and boulder who handles a couple of criminal cases. Ergzell and Donald Harsick were both asking, "Am I really Neil Armstrong here?" Is my local police department really the only ones ever, anywhere, to wield this all-seeing eye?

This thing that could change the whole criminal justice system? Without guardrails, there's a real, real fear and concern that things will pop up and use this to the surveillance state, right? What happens if in the not-too-distant future,

“the government has a secret crime-fighting machine that says you did it?”

I'm sorry, I'm sounding like fear mongering and you know, lawyer down here, but we're living in such perilous times in such a fast-changing world that no one wants a authoritarian savor power to have, whether that's here, China, Turkey, Venezuela, or any country, right? No one wants. That's not good for the soul of humanity. But was this all just defense attorney paranoia? Was it really

spreading fast enough to be concerned? Because in the first newspaper reports that Don read about

it back in the fall of 2022, Moser said that his creation had already been used 24,000 times. But if all that was true, why wasn't everyone already talking about it? Where were the press clippings? Both Don and Zale were like, "Which is it? Is this thing everywhere or nowhere?" And then on June 23rd, 2023, a very important notification popped up on Zale's investigators computer, a Google news alert that it's set for the word cybercheck. My investigator had said,

"Hey, there's this homicide in Ohio, South Cleveland." In Accrim, to be exact, which is how I met Don. Don Mallar Sik, a man who had not only encountered the cybercheck report in court in the teenager Javion Rankin's case, but who had successfully had cyberchecked front off his case? I just told him, and I said, "My name's Eric Zale, I'm an attorney." And Eric represented a fellow who was charged with possession of child pornography.

Hey, look, I've got the same issues. Let's chat. I'm Sam Mullins, and from CBC's uncover, this is the expert witness. Episode 3, "Ducks in a row."

The general vibe of Don Mallar Sikin Eric Zale's first conversation was that of finding

someone with an extra water canteen in the desert. They breathlessly were like, "What do you make of the cybercheck thing?" I think it's fucking bullshit, but I'm not sure. Same. Okay, well, let's figure it out. Let's find out together. Like, "What do you have?" There's kind of a kinship and a language and a bond that good defense attorneys have. Don struck me as a serious, effective defense attorney. Very, very passionate.

I can have a 30-second conversation with a defense attorney, and know if there are any good or not. I can ask certain questions, and I can get a response, "Who's your investigator that you go to?" And I said, "Here's my investigator, whatever I can do to help. Here you go." And immediately, I knew Eric Zale was a good attorney. This is Don's whole thing. Good attorneys know what they don't know. I'm just the lawyer. I'm not a holistic expert.

“I'm not a forensic computer expert right. That's why I can solve with all these people.”

So with the pleasantries out of the way, Mullar Sikin Zale told their stories to each other

parts of the country, their stories arrived. Weak cases with a strange vague report in discovery.

“Both had the same gut reaction. Both attorneys then hired a tech expert to see what they thought.”

Both experts couldn't make heads or tails of it. Both then hired investigators to look into the company who came back empty-handed. So both attorneys asked to see motion's algorithm and were denied, prompting them to turn their attention to motion. He was sharing with me some of the transcripts of Adam Mozier testifying in his case in Colorado. You'll recall that in Don's case, all he had to prep for his cross-examination of motion was the

transcripts for the two murder convictions that had happened in Akron. And he knew those transcripts inside out. But here was a brand new on the record sampling of Adam Mozier saying stuff.

“And when Don and Zale shared their transcripts with each other, a very concerning pattern”

leapt off the page. Every time we ask Adam Mozier a question under oath, we get a different answer. Where have you testifies an expert witness before? When we start all asking those same questions and reading the transcript, Adam has given different answers under oath to those same questions. So with this new encouragement, Eric returned to his quest to fact check Mozier's claims he made in court. In Akron, Mozier acclaimed cybercheck was used by hundreds of different law enforcement agencies.

But in Colorado, he was saying that he'd been used as an expert in just 18 cases. And now, when ordered by the court in Colorado to show actual proof of these 18 appearances, Mozier walked that claim back. The court releases to me two times in which Mr. Mozier had testified as an expert. They were both in Canada, in Canada. So Eric hires an investigator,

a second Canadian investigator to go to and call an email and find out what court exists in these two

“cities in Canada. One was a small, I don't even think it was an actual town. I think it's like a”

community in the maritimes and then one was in a small oil town couple hours north of Edmonton basically at the ends of the earth. Go see what you can find about these cases. Where's the judge that Mozier testified to? Who's the prosecutor that called him and who's the defense attorney that cross examined him? And he started digging. So short time after that, Zale is sitting at his desk in his little boulder office when he gets the call from the Canadian investigator. Zale,

like me, is someone who needs to pace whenever he's on the phone. So as he answers, he slips outside. I have a parking lot outside my office and I often walk there to just kind of walk and walk and walk. And if you were watching Zale in this parking lot that day, you would see him pacing swiftly but casually for about 30 seconds before he suddenly stopped in his tracks. He tells me that

Mozier never testified. This case that happened in Alberta was a child-sex abuse case and there

were a few really interesting things about it. One, the defendant. The case that he's talking about was actually Adam's brother-in-law and he was charged with these really horrific crimes and Adam Mozier came to me. The prosecutor and said, "We also think that my brother-in-law was using child pornography." And here's the proof. Here's the cyber check report that shows that Adam's brother-in-law was accessing child pornography. Which brings us to the second really interesting thing. He had just

shown up to the crown with a report. As in a guy who no one in Alberta law enforcement works with,

a guy named Adam Mozier just shows up basically off the street and is like, "Hi, I have used

my technology a thing called cyber check to prove that my wife's brother who you're accusing of child-sex abuse was also looking at child pornography." And the crown prosecutors like, "Oh, okay,

The crown prosecutor said, "We had our forensic team look at it and we couldn't make any sense of it."

So it's like, "What in the world?" So we never used Adam Mozier. His brother-in-law

played guilty. There was no trial. He was never an expert. In fact, it had nothing to do with our case. In his parking lot for the first time, he almost dropped the phone. And I said, "Really?" And he goes, "Yes." And I was like, "So he never testified as an expert in that case, because then we never had a trial." I asked him three times to the point when he was like, "Yes,

“stop asking me. That's what happened." So that was one of the two trials in which Mozier”

claimed to be an expert witness. Number two was the one in the maritime. We track down this other situation where Mozier says he testifies an expert witness.

And it's even worse. In that situation, there never was a criminal charge. Holy crap.

The investigator gets a hold of the royal Canadian detective who was in responsible for investigating this fella. And he confirms that there never was a trial. And thus concludes the two times that Adam Mozier was a supposed expert witness in Canada. I was fooled. Because I knew in my gut that this guy was a fraud liar and a grifter. And I knew that I had him at that point.

This was getting dismissed. And Zale could be forgiven for a certain level of, "I told you so, Glee, when he picked up the phone to call his colleague and tell her what his investigator had uncovered

“about her expert." I think his word for it. He's a total fraud.”

Even though I trust Erich Zale implicitly, I worked with him extensively. I think he is an excellent attorney and very good at what he does. He's very trustworthy. I had kind of said, "Well, you know, give me some information." And that's exactly what he did. Brett had to hear about Mozier's inconsistencies firsthand. It wasn't like she hadn't been trying to dig into him herself anyway. But now Erich Zale was able

to give her the right numbers to call. That was very helpful information from Erich Zale. And much appreciated. Brett called the Canadian prosecutors to hear of Mozier had in fact been useful to them as an expert

witness. Both of them could be completely candid that they never got what they needed from him

that he was not actually tendered as an expert in either case. After that, Brett hit hered all she needed to. I'm not going to take a case trial. If the case is predicated upon an expert testimony and that expert is a total phony. The charges against John Doe were dropped entirely. She ultimately did the right thing.

“I mean, I think she saw the handwriting on the wall.”

Brett was anxious for her next call with Mozier, so she could tell him why her office was dropping his creation. I never heard from him again. And what strange is that I was talking to Adam Mozier on a pretty frequent basis before that. Adam Mozier and Cybercheck were gone from Boulder, Colorado. His quietly is they had arrived. It just doesn't sit right that he wouldn't have picked up the phone and said, "What happened?"

Like, I did provide you this information or you know, there was a misunderstanding or let me explain. I feel like most people who have perhaps didn't misunderstand or mislabeled want to do that. And he did not. For Zale, this dismissal should have been a sweet one. Everyone has kind of career moments, and this is one of the kind of top two or three career

defining cases forming. Yet a part of Zale remained unsettled. We are living in a, at least down here in a very, very perilous time, where the government is heading towards a dark place in a place that frankly I want no part of. And to allow any authoritarian, whether that's at the federal of the state or the local level,

power like that, to make allegations with no ability to refute them because they won't provide the evidence. And then to say trust us, and we won't present you, is, yeah, it is dangerous dangerous thing. It looks like cyber check has been defeated in Boulder, and with that defeat, they're now

But that's not how this went.

“Don Maria and Noah needed their own knockout blow.”

And they didn't have to wait long for the perfect opportunity.

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 roundtable 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.

Just days after the case had collapsed against Eric Zales' client,

“Adam Mosher was due to appear in an accurate courtroom in one of Don's cases.”

It was a hearing in the case of 20-year-old Deshan Coleman, who along with his brother Eric Ferry was charged with aggravated murder. Don now had a second chance to question Adam Mosher in court, and he knew that if he succeeded here, he could rid his county of this nonsense for good. There'd be no more untested AI tools putting people in cells for crimes where no human witness was present.

So I felt like we got on this time. We absolutely got him.

Don Melarsick is someone who always shows up extremely prepared,

but for the showdown with Mosher, even for Don, he was especially meticulous. Right before big hearings in big cases, I just don't sleep. On these mornings, Don is at the office by forehand. I get to this office. The lights are out. I make a pot of coffee. I turn on the lights, and I just sit in my office, and I kind of breathe. And that's a really cool time for me.

It's the only time in my life where I'm usually alone and it's quiet. And I take some time to really kind of imagine what this case is about and how important it is

“and what I need to accomplish. How do I need the people in the courtroom to feel when I'm done?”

And how do I get them to feel the rage that I do? The rage is the first thing that Marie sees when she arrives a few hours later, coffee and hand. We get here at like seven a.m. like hours before the hearing. I mean, it is like a war zone at this copy area in our office. It's insanity. It's complete insanity. He's printing everything that he wants to introduce,

and I'm marking it all as exhibits, and then it's, you know, he'll say, okay, you know, take that off, make this one three in the next one four, and just to even get like our bucks in a row to get that stuff in his fancy cart. Ah, yes, the fancy cart is my favorite part.

I sweat a lot. Okay, and it's just who I am, and I know that's always going to be who I am.

So I can't be the guy who's carrying 40 pounds of exhibits across the street in June, or I'm going to look like I'm either a meth head or I just ran a marathon, and that's not the look you want to present when you sit down in court. I spend a lot of money on my cart because it is kind of the the Cadillac of carts. I so identify with overspending on something to a bet anxiety like this microphone that I'm talking into right now is the Cadillac

of microphones, and I shall now for it because it suits me. I know if I have a cheap cart, I'm going to spill shit, and I'm going to get irritated. I'm going to start sweating, and it's going to be a bad hearing. So after Don and Marie have organized and reorganized the Birkin bag of lock carts to Don's liking, Don attempts to quickly re-center. All that has to quiet, and the walk over from my office to the courthouse is about a block, and it's that walk that I just don't talk to

anybody. I don't want anybody asking me questions. I don't want anybody helping me. Just let me let me think this through. Ever since his first attempt at cross-examining Mosher, Don had been obsessing about how he might bury him if he ever got a second crack. But then, when Don walks through the

clients family in the back of the courtroom, it hits you, you know, like off fuck. You know,

“this isn't about me, this isn't a game, this isn't me against Adam Mosher. This is a family”

whose two sons are facing murder charges. Don could feel his client's family's eyes on him as he wheeled past. The stakes suddenly more palpable in his body and in this room than they've been at any point in his preparation. If I fuck this up, they're going to go to prison for the rest of their lives. And then on the other side of the courtroom, you see the victim and the victim's family. Caged one Harrison's family sat solemnly, believing that their loved one was murdered for the

poultry cash in his wallet and also believing that they were about to finally see justice in action.

And it's jarring and it is difficult because it brings you back to this is a very serious case with very serious consequences and regardless of what happened with Mosher, real people's lives are going to be affected forever. Don arranged his notes and binders on the desk as he took his seat next to his co-counsel in the case. The guy representing Coleman's brother, who hadn't really spent much time yet trying to understand the cyber check evidence. And they're asking really basic

questions like, how does cyber check work? I'm like, listen dude, I'm not going to fucking explain that to you right now. I've got a hundred hours of research into this and I got it. Don't ask me stupid questions right now. When the judge said it was time to begin, a 13-inch screen was set up in the courtroom displaying a familiar face. And I'm always trying to see what I can read in his face the first time I see him and I'm looking for, you know, just a hint of fear or a hint of

trepidation. And each and every time, no matter where it was or when it happened or what courtroom

it's in, Adam always appeared the same way, just like a kid at the first day of school. He's got

his new suit on and he looks good and looks happy to be there. Don's hat coiled like a cobra as he watched Mosher go under oath. He'd spent a lot of time deliberating on where to begin when he got his turn to ask questions. He wasn't going in for the kill right away. I was researching his CV and I found the places where he claims to have gained law enforcement education were seminars held at, you know, like a holiday in or a Ramada in or something. And I said, Adam, these were seminars

at a hotel. You were questioning his education in his background and it really offended him. Paralegal Marie de Colah was watching on. I was not there. I was on vacation, but I was at the beach listening on Zoom to the whole hearing because I'm crazy. And I could hear it in his voice.

“I still remember him being a well done. I guess if you want to minimize my expertise in my”

education, I mean, I really know why you would do that. But of course, Don was just warming up. And now he was ready to get to the moment he'd been anticipating. Adam's stories of being an expert witness in Canada. And I say to Adam, so you've told us that you've testified as an expert witness in these two cases. Yes, I have. I said, well, would it surprise you if I said that's not true? This was Don playing his ace. Motion cleared his throat. Well, no, I don't know what you mean.

So you're saying you did testify in that case. The one that never happened. All right, tell me then.

When was the date of that? And he would say, you know, one moment, let me pull that up for you. And we would see him on the screen looking through his calendar or whatever to like find the day. And then he would say, oh, it was on this day. And I mean, like the charade. Like you never testified as an expert in that case. Well, I did testify. Motion continued. I'm not sure where this is coming from because once we get that transcript from

Eric Zale, you will gladly have a copy of it. So Don plowed onwards. Still trying to pin him down

“to remain on the front foot. So I ask him about the second case. Adam, what about this other case?”

At this point, the prosecutor objects. He pleased to the judge. This is going way off the issue. But the judge disagrees and says, I'm going to give some latitude here. So Don presses on.

Don knew that this line of questioning might alienate the courtroom, but this was his moment. And the judge is kind of confused. Everybody in the courtroom seems confused. Don studied motion's face on the screen closely. Desperately trying to get a read on how he'd respond. And I said, and you did not testify your brother-in-law applied guilty the morning of tre...

Well, no, I did. I'm like, oh my god, he's lying. And that's when it hit me.

This guy will never not lie. That, to me, was like, oh wow, that's who he is. It's not just

“he intentionally misrepresent things. His whole life is alive. He will double down and triple down”

and quadruple down. And he says, in fact, I have the transcripts. And I will email them to you and the court and the prosecutor. And I will have them for you by Monday. And this is a Thursday hearing. Okay. So you're going to email us the non-existent transcripts for those non-existent trials in four days? What else could Don say? I'm like, okay Adam, get him to us on Monday. Whatever Don thought this moment would feel like, this was not it. Every time Don would pick

at one of Moshe's knots, he'd tie three more. I've never really encountered a person on the

stand under oath who was lied so effectively. And it's exhausting. Don's no pad was filled with all the things he'd need to follow up on. And Don Mallarsick was going to follow up. Monday comes and goes, there's no transcript. Hey Adam, just want to check in about that thing you promised us. And then he waits and nothing happens. The murder charges against Deschon Coleman and his brother remain in place. And cyber check in Akron remains in place. And slowly but surely Don Mallarsick's

cool starts unraveling. Don't listen to me. Here's the phone number. Here's the name of these two

prosecutors in Canada. By now Don had taken two sending angry emails to prosecutors on the weekend.

I'm a defense attorney. I get all of them. Talk to them. They're going to tell you more than they tell me. Let's bring in end to this dog and pony show. Adam Moshe's full of shit.

“And I'll never forget it on the record. One of the prosecutors on the Coleman case said”

after being confronted with these emails and Adam Moshe are lying about testifying previously as an expert of witness said Adam Moshe. He's great at technology. Not so good at the law. And he was trying to say that this was semantics that Adam Moshe didn't really understand what the word testimony means. And I was fucking furious. Are you kidding me? Your expert who on his CV said he spent hundreds of hours working with law enforcement, preparing search warrants

and testifying in case doesn't know what the word testimony means. I don't want to sound naive but I think most people are afraid to lie under oath. And most prosecutors, police officers, and expert witness that I've encountered don't want to have the shame of being associated with a liar. And it was just jarring to me that none of that was present. And I was just fucking floored. Nothing Don had tried up to this point had been enough. He had tried in every way he could

to communicate how dangerous a path they were all on. We are a death penalty state and no one can explain how this thing works except for the guy who now regularly is lying under oath. Does no one else see the problem with that? But no matter how angry he got, they kept shrugging him off. He'd lost the battle, but now at least he realized he was in a war. I just got really kind of obsessed. Don had seen enough clues suggesting

the Mosher was a fraud, but to fully and irrefutably expose that wasn't going to be easy.

“The only way to expose Adam Mosher is to tie all this together.”

Unless one person has all of the information and access to the bigger picture, it's really, really hard for one attorney to do all that work and make those connections. But one attorney was going to have to do just that. What other cases are there that you cyber check? And I was able to develop a list of about nine active cases where cyber check was used.

"Look, I want to help." Don was going all in. I'll do it all pro bono for free, just let me sit on

this case as co-castle. And every single one of those attorneys said, "Yeah, sure." A man who knew nothing about technology was betting everything he had on cyber check being useless,

“a hoax. But what would happen if when he finally did get his hands on it?”

And got to see it's inner workings. It's code. What would happen if it was exactly what it

claimed to be? I'm like, "What are you talking about, man?" Like, "What do you mean?" Well, it's doing this and that's a real thing. 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 is Veronica Simmons.

Coordinating producer is Emily Cannell. Mixed by Garrett Tidman. At raw, Deborah Dugin is the head of podcasts. The production executive is La Tisha Kitsa Susa. Special thanks to Emma Wood and Olivia Bhutan. Additional audio from 19 news, 3 news, news 5 Cleveland, CBC news, WKYC,

“WSO CTV and WBRZ. At CBC, the executive producers are Cecil Fernandez and Chris Oak. Tongue”

Springer is the senior manager and RF Nurani is the director of CBC podcasts. Tune in next week for an all new episode of The Expert Witness. Or, you can listen ahead to the full series now by subscribing to CBC True Crime Premium on Apple Podcasts or by subscribing to the CBC True Crime Channel on YouTube. Links in the description. We'll be back next week with a brand new episode. But between now and then, consider listening

to one of the many excellent seasons of uncover that came before the expert witness. Like maybe a series that I also hosted called Sea of Lies, which is season 32. That story begins with a body being found in a fisherman's net in the English channel and it's all about the mind-bending investigation that determined who was responsible. You can find Sea of Lies 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