Parker knew he was in trouble. His next move was to call the NCMEC, hoping that they could produce a record of his earlier calls to them. And he hired Milton DeJesus, a Little Rock lawyer known mainly for his work in immigration law. Colene recalls that at times Joseph was almost hysterical with confusion and worry.
"So life became hell for a while," she says. "It was ridiculous. It was absurd. All through that part of it, when it was so absurd, both of us kept saying, ‘They’ll find out the truth, and then all of this will be over.’" At times, such as when they learned that federal agents in Rochester had questioned their friend, Dr. Jessica Saberman, they dared to hope that their ordeal might be nearing an end.
Saberman phoned and said that FBI and Customs agents both had paid a call on her. They’d asked if Parker had ever spoken with her about having received child pornography by e-mail. The next day, at Parker’s request, Saberman sent him a letter outlining that interview.
She wrote, in part: "I told the agent that Dr. Parker knew it was illegal to take pornographic pictures of minors, sell or distribute these pictures, or in any other way participate in child pornography; that Dr. Parker contacted the local FBI because he knew these activities to be illegal and he wished to help catch the people involved in harming the children.
"I told the agent that Dr. Parker specifically told the FBI that he had these images on his computer, and to the best of my knowledge, the FBI did not tell him it was illegal to keep these files on his computer, nor did they advise him to erase the files..."
Surely, Parker thought, that would begin to clear things up. He knew that rumors about him had begun circulating at UAMS, but he focused on his work, and as weeks passed into months without further contact from federal agents, the incident slipped into the past.
Or so it seemed. In November 1998, more than 10 months after the Customs agents had appeared at the hospital, attorney DeJesus notified Parker that he had been indicted by a federal grand jury. He faced three felony counts of receiving child pornography and one of possessing it. The next day, when the news appeared in the Arkansas Democrat-Gazette, Parker’s superiors at UAMS told him his employment there was suspended. He was placed by the federal court for the Eastern District of Arkansas on pre-trial supervision, and ordered to report to a probation officer every Wednesday until his trial. It seemed like a bad dream. And the dream got worse.
When the Parkers met with DeJesus., Colene recalls, "He said [to Parker], ‘Well, buddy, you’re going to jail.’ Joseph said, ‘Doesn’t it matter that I’d kept in touch with the FBI every step of the way?’ And Milton said, ‘I’ll help however I can, but the letter of the law is that possessing this stuff is a felony.’
"I really think Milton didn’t believe Joseph," Colene Parker says today. "I think that for the first few months, I was the only person on the face of the earth who did.."
The Parkers, along with DeJesus, met with Assistant U.S. Attorney Lesa Jackson. "She pulled out all the images," Colene Parker recalls, "and she laid the sentencing statutes on the line. They had 29 images, all that were clearly of minors. They said they could put him in prison for life. In my opinion, it was a threat. Then she told us that if he plea bargained, she could get it down to two years, with most of it on probation. That’s the deal they offered.
"We walked out of there floored. Over half the images were ones that Joe and I had never laid eyes on. I know I had not, and he said the same thing. Then we talked about what we should do. I think they were expecting him to take the plea bargain, but he said, ‘Look, I have a very perfect record, a very perfect history. If I plead guilty, I’ll loose my medical license. I’ll get a dishonorable discharge. In reality, my life’s over whether I’m in prison or I’m out. But from an integrity standpoint, I would rather prove my intent. My honor’s been questioned, and for the rest of my life this will follow me. If I don’t fight this, most of what I’ve worked for my entire life will be gone.’"
The Search Warrant
Parker found emergency room work in hospitals outside of Little Rock, traveling every week to towns as much as two or three hours away. DeJesus began preparing for trial. As the lawyer began reviewing government documents on the case, he and Parker were able to read, for the first time, Mensinger’s report on how Parker had been snared in Operation Talon.
In October 1997, about five months after Parker arrived in Little Rock, Customs agents in Michigan had executed a search warrant at the residence of a man named Freddie Gravley, who, the report said, "was using the services of America Online to traffic illicit child pornography." When agents then searched Gravley’s AOL accounts, they found Parker’s screen name among those to whom Gravely had been sending images.
But that wasn’t the only interesting document. Parker and DeJesus were intrigued to learn that, after Parker had angrily told the agents he was revoking his consent for a search of his computer, Mensinger had gone to court to acquire a federal search warrant. The affidavit filed with his application for the warrant stated that, as of Feb. 6, 1998–ten days after the seizure–the computer and "thirteen diskettes" had not yet been "searched or examined by Customs agents."
This surprised Parker, because within a day or two after Mensinger and Sanders had confiscated his computer, he had sought to have it returned, claiming that it held files he needed for his medical studies. Customs agents had notified Parker’s lawyer that the computer held nothing of academic value. Parker disputed that contention, but it had left him with the distinct impression that the agents had already viewed his files.
To Parker’s further amazement, the affidavit noted, though parenthetically, that at least part of what he had been claiming for months had been confirmed. After mentioning Parker’s insistence that he had telephoned the FBI in three cities, as well as the NCMEC, to report the illegal images, Mensinger’s affidavit stated: "(The only communication documented by either of these agencies pertaining to Dr. Joseph Parker prior to January 27, 1998 was one telephone call that Parker may have made to the FBI in Little Rock prior to December, 1997 informing the FBI that he had observed child pornography and would provide the FBI with it.)" The affidavit continued: "(There is no record of Parker providing the FBI or the National Center for Missing and Exploited Children with any child pornography.)"
Parker was aghast. Here was an apparent admission that a check sometime soon after agents had seized his computer had turned up someone in the Little Rock FBI office who remembered taking his call–and yet he was being prosecuted anyway, apparently for having failed, after notifying law enforcement authorities, to personally deliver the evidence to them.
The Suppression Hearing
DeJesus filed a motion to suppress all of the seized evidence, arguing that, because Customs agents had not told Parker that he was the target of a criminal investigation before he signed the consent form, the computer had been illegally seized. DeJesus also filed for disclosure of evidence held by the government that might be favorable to Parker, such as any records the FBI might have in its possession that documented his contacts with them. And he advised the court that Parker would base his defense on public authority; that is, the assertion that he believed he was assisting a law enforcement agency when he obtained the contraband images.
The Parkers, meanwhile, tracked down their phone bills from Minnesota. While calls to the FBI in Rochester, which would have been local, did not appear on the bills, and calls to the NCMEC’s 800 number did not appear either, the bills clearly reflected that Parker had placed at least four long-distance calls to the FBI in Minneapolis and one to the FBI in St. Paul..
Assistant U.S. Jackson, who had offered the plea bargain, argued that agents had advised Parker of the nature of their investigation, obtained his written consent to search his "computer and related equipment," and that "When Defendant notified the agents that he had revoked his consent, they obtained a federal search warrant." Therefore, Jackson argued, "as defendant’s constitutional rights were not compromised or violated, the seized evidence should not be suppressed." As for records that supported Parker’s claim of public authority, Jackson responded that the United States had supplied all the pertinent documents it had.
In March 1999, Circuit Judge George Howard Jr. held a pre-trial suppression hearing, and it produced more surprises. For one, Agent Mensinger acknowledged from the stand that he had "contacted some of the FBI agents in Minnesota," and that they "vaguely remember someone calling them–they believe it could have been Dr. Parker..." Mensinger testified that the FBI agents in Minnesota related that "Dr. Parker was on the Internet and was chatting with someone who was trying to sell their child at a motel room for sex. And they received the information and tried to corroborate it with some local investigators and basically the lead never panned out."
Parker and DeJesus listened in amazement. Here was a federal agent confirming Parker’s account of the attempted sting at the hotel, yet the government had supplied no records from the FBI in Minnesota. When Jackson asked about contact between Parker and the FBI in Arkansas, Mensinger replied that, "There was an employee with the FBI in Little Rock that stated that he recalled a doctor calling in ... [who] stated that he found some child pornography on the Internet and said he was going to bring it into the FBI office and never did..." Mensinger acknowledged that, apart from Parker’s admission that he had downloaded the illegal images, the investigation by Customs had turned up no other evidence of Parker having trafficked in child pornography. When asked if Customs agents would have terminated their investigation of Parker on the day at UAMS if they had been able to corroborate his account of contacts with the FBI at that time, Mensinger answered, "Possibly, yes."
It appeared to Parker and DeJesus that once the investigation had started rolling, no one was willing to stop it. DeJesus pointed out to the court that when Customs applied for the warrant to search Parker’s computer, Mensinger’s affidavit had stated that "the only communication documented" between Parker and the FBI had been his call to the Little Rock office. There was no mention of the report by FBI agents in Minnesota that a Dr. Parker had provided the information that had prompted their attempted sting at the hotel.
The print-out of the contents of the 13 diskettes that Customs said it had taken from Parker’s house contained some anomalies that DeJesus wanted explained. One was that the thirteenth disk apparently contained a subdirectory that had been created on January 29, 1998–two days after agents Mensinger and Sanders had confiscated Parker’s computer and a week before the federal court had granted Customs a warrant to search it.
Moreover, testimony from computer experts established that the disks taken from Parker’s residence had also been inserted into the computer prior to Custom’s application for the search warrant, as dates reflecting activity on them made clear. And that information prompted yet more questions: Who had inserted the disk on the 29th? Why? And why had the search warrant application stated that neither the computer nor the disks had been searched?
A partial answer was provided when Gene King took the stand. Until recently, King had been Mensinger’s boss, the resident agent in charge of the Little Rock Customs office. King explained that the office was a small one, consisting of only himself, Mensinger and Sanders at the time that Parker came under suspicion. When Parker revoked his consent to search the computer, King said, he began to wonder "what, in fact, [was] on there that he wanted it back so desperately." Because contraband had already been observed, he said, he did not believe that Parker’s consent could be revoked. With agents Mensinger and Sanders out of the courtroom, King explained that on January 28, the day after the computer was seized, "I had the agents physically set up the computer on my desk in my office .... and over the course of the next day and a half ... I tried to perform an examination–you know, to the extent I could with my knowledge of computers–on what was on that hard drive." He said he even printed some of Parker’s financial records off the hard drive and gave them to Mensinger.
During this examination, King said, he inserted a disk from the Customs supply room, and while trying to familiarize himself with Parker’s operating systems and programs, "at some point I put this disk into the A drive of the computer and I found what I thought would be an innocuous file, which was a picture of a flower, I believe, and I made a copy of that flower out to disk, and then inadvertently I forgot to remove the diskette from the computer and it was stored back in evidence..." That disk, which had been entered into evidence as one of the ones copied at Parker’s house containing child pornography, was the thirteenth disk that DeJesus had questioned. As King explained, "Apparently this disk was made on January 29, 1998, which is the time the computer was in my office."
DeJesus and Parker believed that Mensinger had committed perjury, first swearing on the application for the search warrant that the computer had not been searched or examined, and later, when he testified to the same thing under oath at the suppression hearing. DeJesus elicited from King an acknowledgment that statements made in the application for the search warrant were false, that King had made no written report of his search, and that the defense had never been advised that a search had been conducted before Customs had been granted the search warrant. They hoped that Judge Howard would order the evidence of the computer and the disks suppressed–a ruling that would destroy the government’s case–if for no other reason than the conduct of the federal agents. As DeJesus said in court, the record of activity on the disks "speaks for itself, Judge. It says that something was done to these disks after my client consented and before they had a search warrant. Now, whether anything was planted or not, they had no business–none whatsoever in those disks, Judge, or in the hard drive."
Howard responded: "But that isn’t what concerns me. I’m indicating you have made a case. My concern was, this is an ambush."
Howard complained that DeJesus had not advised the government that he would be "accusing them of manipulating not only the system but the evidence." And because of that, Howard decided to appoint a computer expert of his own, one who would examine the computer and the disks, not for the prosecution or defense, but for the court alone. DeJesus and Jackson agreed. But later, instead of resolving questions, the testimony of the court’s expert only added new ones.
The court’s expert was Mahir Ali, chairman of the computer science department at the University of Central Arkansas. Ali testified that when he tried to examine the computer, he found the hard drive inoperational. That seemed strange since the computer had been in the custody of Customs officials from the time it left Parker’s house, and the experts who had examined it before had said it was operational. Upon the court’s instruction, the machine was sent off for repairs. The company that performed the repairs sent it back to Customs with a letter stating that the hard drive had been fixed. The computer was sealed with evidence tape and brought back to Ali. But when Ali again tried to examine it, the hard drive was again not operational.
Now the questions were: how and why had the hard drive been disabled while in Customs’ custody, not just once but twice? As Parker and DeJesus saw it, the government had a duty to safeguard the evidence and preserve it from taint. As DeJesus pointed out, "The potential evidence contained in the hard drive and its condition after the search or perusal without a warrant by the U.S. Customs Service is material to the defense, and the destruction or damage of this physical evidence is prejudicial since it prevents him from exploring the possibility of destruction of contents by others or the potential to discover evidence of a violation of [Parker’s] constitutional rights under the Fifth and Fourteenth amendments"
DeJesus added that, "In review of all the twists and turns in this case, this is the latest of the problems and it will not be the last. [Parker] believes that his due process rights have been violated numerous times in significant ways and believes the just and fair resolution is dismissal of all charges."
To the defense, it looked like the prosecution’s case, which had been thin from the beginning, was being weakened at every turn; first by evidence of an ill-gained search warrant, then of perjury, and then of evidence having been mishandled while under federal control. And still, there was something else...
A citizen cannot subpoena records from the FBI. Even if it is prosecuting a citizen, the government must procure such records for him. DeJesus had filed a motion requesting all records in possession of the FBI regarding contacts between the agency and Parker. They never received records documenting the original calls. But, peculiarly, they did receive documents that were created subsequent to the calls.
For example, Parker and DeJesus were provided with a copy of a memo from the FBI in Little Rock that was dated January 27, 1998, the day Mensinger and Sanders seized Parker’s computer. It outlined the circumstances of the case, as reported by the Customs agents, and noted Parker’s claim that, in downloading the images, he had been following instructions from the FBI.
The oddest thing about the memo was its final paragraph. It reported that an FBI agent by the name of Glenn Brandon recalled having spoken with Parker and that "Dr. Parker stated that he would make a copy of the information he had downloaded onto his computer and bring it to the FBI office. I.A. Brandon stated that Dr. Parker never delivered the information and therefore he subsequently discarded documentation of the phone call."
Reading the memo, Parker and DeJesus realized that FBI officials had known on Jan. 28, the very day Parker had visited their office, that his story about calling them had checked out. And so had his account of his contacts with the FBI in Minnesota. When DeJesus pointed out that the government said it had provided the defense with all pertinent federal documents, yet no records of these contacts had been turned over, the complaint apparently stirred some action between the U.S. attorney’s office and the FBI. Parker and DeJesus never did receive copies of original records, but they were eventually provided with a carefully worded statement from an FBI office in Minnesota. It was written by Special Agent David F. Price of Rochester, Minnesota and dated April 29, 1998, three months after the Customs agents had seized Parker’s compute and long after Parker had left Minnesota. The statement read in part:
"There was a weekend in approximately the beginning of 1997 in which a person called the FBI Office in Minneapolis and Agent Price returned that person’s call. The person, who may have been Dr. [Joseph] Parker, advised that he had learned through the Internet that a 13-year-old girl was available for sale for sexual purposes in a suburb of Minneapolis."
The statement continued: "The person advising of this was a doctor and he was put in contact with Agent Jim Tucker of the Minneapolis area, who covered the potential exploitation of the 13-year-old with the help of local authorities... SA Price recalls that he may have had conversations with persons who had observed child pornography on the Internet and may have told those persons to bring them to the Rochester office. No one ever did bring child pornography to the Rochester office and in no way did SA Price tell someone to collect child pornography."
Federal officials had verification that Parker had contacted FBI offices in both Arkansas and Minnesota, as he had asserted all along. They even knew that agents in Minnesota had acted on his information. And beyond the images and Parker’s own acknowledgment that he had downloaded them, they had no other evidence against him. Still, they had prosecuted, without divulging information they had that supported Parker’s claims. And when Parker and DeJesus sought the documents that might be exculpatory, no records had been provided, other than these few, peculiarly belated memos.
No records dated at the time of Parker’s contacts ever were supplied. Nor were records supplied that described how Agent Tucker in Minneapolis had "covered," with the help of local authorities, the situation concerning the 13-year-old girl. Parker and DeJesus were left to assume that either the FBI never generated records in any of those instances, in violation of its own policy, or that the records did exist but were, for some reason, being withheld, in violation of federal law. And they were left to wonder, if such records did exist, whether they might contain further corroboration of Parker’s claim that, after receiving the first images, he had been encouraged to maintain contact and download others.
In light of the FBI’s corroboration of Parker’s contacts with the agency, and in light of the bungling, at a minimum, by both Customs and the FBI, DeJesus wrote to Asst. U.S. Attorney Jackson, proposing that the charges against Parker be dismissed. He noted that, since initiation of the case against the doctor, Parker had served 18 months under federal supervision; his travel had been severely curtailed; he had been placed on administrative leave without pay from the hospital, delaying his education by two years; he had suffered notoriety among his colleagues; his medical privileges and thus his ability to earn a living had been substantially impaired; he had incurred significant legal expenses; his military career had suffered; he faced hearings before military boards of inquiry upon completion of the prosecution; his marriage had ended in divorce; he faced custody issues resulting from the charges; he’d endured substantial emotional distress; and his children had suffered, as well.
The subtext of the letter was that Parker had been punished quite enough. If the worst of the government’s case was that Parker had, indeed, possessed the illegal images–information which he had volunteered repeatedly to federal authorities–but that he had not delivered them to the FBI after reporting that he possessed them, then couldn’t the government stipulate that the ends of justice had been served? DeJesus suggested that Parker could be kept under continued supervision for an additional six months, bringing his total to two years. At the end of that time, DeJesus proposed, further prosecution of Parker could be declined and the case against him closed.
But federal prosecutors would not back down, and in May 2000, Judge Howard dealt Parker another blow. Ignoring Mensinger’s sworn statements that the computer had not been searched before agents obtained the search warrant–statements that were controverted in court by Mensinger’s former boss; ignoring the extraneous thirteenth disk that had been inserted into the computer by King and mistakenly placed into evidence; and ignoring as well the troublesome inability of the court’s own expert–not once, but twice–to access the computer’s hard drive, which had been disabled while in Custom’s custody, Howard focused his attention on the expert’s testimony "that the integrity of the diskettes was intact." Citing testimony that "the images on the disks were not tampered with or altered," Howard ordered that they should not be suppressed. And, since Parker had not been coerced into telling Mensinger and Sanders that he had downloaded the illicit files, Judge Howard ruled that the information on the disks had been legally obtained.