(CMR) The defense called two witnesses in the child pornography case of Freddy Diaz. The 33-year-old accused father of two young children and his wife attempted to explain who else could have had accessed child pornography at the home the pair shared together.
Diaz is charged with two counts for possession and accessing child pornography and several of the charges relate to extremely serious category A offenses which are the most egregious that include images or videos of babies and very young children. The computer search records demonstrate a deliberate keyword search to find such content that was then either played or downloaded on the computer and an external hard drive.
It appeared early on that the line of defense that someone outside of the home may have remotely accessed the couple's computer was abandoned after RCIPS forensic expert John Watson indicated there was absolutely no evidence of that. Watson was the last prosecution witness and shared that he has spent the past four years “investigating some of the most serious cybercrimes in the United Kingdom” and was a certified ethical hacker.
As Diaz took the stand on Tuesday he then attempted to explain his largely no-comment two-part police interview which was showed to the jurors on the previous days. He explained that his refusal to answer most questions was on the advice of his attorney who was the professional expert in the matter.
Police put numerous questions to him including if there was any possibility that anyone else had access to his computer. He refused to confirm that he even lived at the residence in question and whose name the lease was in.
The vast majority of questions were met with a “no comment” response from Diaz despite warnings about the adverse inference that could be drawn from that. One of the interviewing officers said they were concerned that Diaz had two small children in the home. She then asked directly if the children were in any danger in the home and Diaz still responded with “no comment”.
He was unable to answer some of the questions poised to him and could only say he did not know. A few times he became testy with the prosecutor and was reminded by the judge that he should stay focused on answering only the questions poised to him.
Diaz has been permitted to remain in the household with the children.
The desktop computer which both he and the wife admitted was used by both of them had numerous keyword searches for various graphic terms that would result in child porn results. Over a period of some seven months, there were numerous images and videos that had either been downloaded or accessed on the computer and an attached external hard drive.
The person who downloaded the images from various websites and torrents also used the black web in an attempt to hide their digital footprint as well as attempted to physically delete the content.
On the stand, Diaz claimed that people were constantly in and out of the two bedroom apartment with multiple people sleeping over and potentially having access to his computer including his brother, his sister and her boyfriend, his mother and her husband at the time, and his friends. He claimed everyone had access to his computers and company would frequently access it for the time they visited him.
At one point he named his friends Lilja Williams and Warren Cayasso as people who had slept over at his house and assisting with watching there children and had been there during some of the time in question.
He implicated a number of individuals but fell short of directly accusing anyone. When pressed as to why he would not have reported any of those potential persons to the police for further investigation he was unable to respond. He did say that he did not believe that it was anyone he trusted to come into his home could have done this.
On cross-examination, the prosecutor pressed him for how it was possible that someone else would have been using his computer for so much time without him or his wife noticing this activity. Apparently, the computer was kept in the living room of their two-bedroom apartment and in plain view.
Diaz's brother was in the court house hearing his brother's cross examination on Wednesday.
His wife, Anne-Marie Gray-Diaz, took the stand Wednesday shortly before the lunch break with very similar statements that other people had access to her home and the computer. She insisted that despite the stressful situation they found themselves in she did not believe her husband was capable of doing anything like this. She works at the Family Resource Center.
She confirmed that she was aware that he downloaded/accessed regular porn several times per week on the computer and on his phone. She was also pressed about who else she believed it could be and if she had reported it to the police and if any of those persons were banned from coming to her house given what they could have done. She noted that she thought about reporting it but once she heard what would be involved she backed out. She only noted that her children are not unsupervised with anything as she is always there.
She could not recall all of the details of the allegations against her husband and implied that perhaps she had managed to block some of it from her memory if she had been told the information. She noted:
“This was an emotional time I have not wanted to keep all of the information inside”.
Another possible defense that appeared to emerge from his testimony was that in the process of downloading legal content the torrents he used may be inadvertently downloaded 500 other things he was unaware of – all of which was related to child pornography. At one point he shared he took medication for depression and when asked about his memory of events he noted that maybe he was not capable of giving the police interview. When pressed about what he was doing on his own computer he shared:
“Depression and anxiety does a lot to the human brain”.
The defense and prosecution are expected to wrap up on Thursday before the case is given to the jury.
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