Probation Violation Case (2022), re: Refusing to Take Down the Website

Upon my release from prison on 244069-08-B, I was on a three year probation order which contained:

• a condition requiring me to take down the website I created about my ex-wife, Desiree Capuano;
• a condition prohibiting me from publishing any information about Desiree; and
• a condition requiring me to report one time, in person, to a probation officer within 72 hours of my release from custody.

The website also contained extensive proof of the corruption and misconduct that had been going on in the prosecutions against me.

Prior to my release, the website had gone offline. At the time of, and following my release, the website remained offline.

The day after my release, I reported in person to a probation officer, exactly as I was required to do. The probation officer told me I had to come back and report again, two days later. I told her the order only required me to report that one time and that I would not be returning.

A few days later, a warrant was issued for my arrest for failing to report that second time. Even though the probation ordered did not require me to report that subsequent time! A warrant was issued for my arrest for failing to comply with a probation condition that didn't even exist!

A month after my release, I was arrested for allegedly:

• failing to report to probation as required;
• failing to take down the Desiree Capuano website upon my relase; and
• publishing information about Desiree on the website.

During the interrogation, I told the detective, Amber McElroy, I knew she was lying about the website being online. I insisted if it's really online, then show me; bring in a laptop and pull up the website. She agreed she would bring me to a computer and show me the website was online. But when she returned, she admitted she was not able to access the website. She claimed her network firewall was blocking access to it.

All three allegations were completely false and would be proven so at the trial. Of course, the trial would be months down the road, during which time I would be detained without bail.

I represented myself. I was denied bail and remained in custody until the trial.

Prior to the trial I submitted numerous disclosure requests. One of which was for the VPD's network access logs, showing any attempts to access the website on the days surrounding my arrest. The court ordered the logs to be disclosed. The logs showed that on those days there was not a single attempt by anyone within the VPD, to access the website. It proved they were lying.

At the trial, the prosecutor called a number of witnesses from the VPD, however they admitted that when they supposedly accessed the website, they made no attempt to verify it was the actual website and that it was publicly accessible on the internet (rather than being on their internal network). They could not explain why the network access logs showed there were no attempts to access the website.

The prosecutor called an "expert witness" from the VPD, regarding email account information he claimed to have found on my mobile phone. He was not able to say whether the account information was current or whether it related to old or inactive accounts. He was also not able to say why the date-modified timestamp on the database files containing that account information corresponded to the exact date and time the VPD's Digital Forensics Unit extracted the data fom the phone - three months after they seized it from me.

After the expert witness's testimony, it was discovered the phone was searched illegally, outside the time permitted by the warrant. I applied to have the expert witness's testimony regarding the phone excluded. The judge denied the request.

The detective who extracted the data from the phone had a documented and well publicized history of making false statements in her sworn affidavits. I requested she be called so I could question her on why the timestamps on the database files show that they were modified at the exact time she was handling the phone, three months after it was seized from me and while I was in custody. The judge denied the request.

In his testimony, my probation officer admitted I did report one time, following my release. But he insisted I was required to report as directed, by him and since he had directed me to return two days later, I was required to do so. I pointed out to him the probation order did not say I was required to report as directed, I was only required to report that one time. He had no response.

Given the significance of the VPD's network logs, I requested the IT Manager, Johnny Lam, from the VPD testify about what the information in the logs means. The judge agreed.

In his testimony on direct, by the prosecutor, Lam admitted that all network users, including the Analyst who claimed she was able to access the website, go through a proxy server. That would mean that her attempts to access the website would have been logged by the proxy server. The prosecutor, realizing that completely destroyed his entire case, requested a recess, and when we reconvened, Lam claimed he was mistaken earlier. That, in fact, the analyst doesn't go through the proxy server. He was clearly lying.

When I cross-examined Lam, he literally said he had no knowledge of that, to almost every question I asked. Even when I asked him the same questions the prosecutor had asked him, and he had provided answers to the prosecutor. Most of my questions to him related to the network configuration so they were exactly what he was required to know in order to perform his duties.

Given Lam's claimed lack of knowledge of anything to do with VPD's computer network, I requested the VPD be ordered to provide a witness who did have that knowledge. The judge denied my request.

I demonstrated to the prosecutors that I appeared to be able to access the website from the laptop they had provided me, even thought that laptop was not connected to the internet. Based on that, the prosecutor made a formal admission that it is possible to appear to access a website which may not actually be online. In other words, just because it appeared to the analyst that she was accessing the website, just because it comes up in the browser doesn't necessarily mean it's online and publicly accessible at that time.

Regardless of all of the foregoing, I was convicted and sentenced to 18 months in prison, and another 3 year probation order.