Police blotter: Flap over nude photos of Cameron Diaz

In this week's installment, computer forensics is key to a case over nude photos of the actress.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: Man who took nude photos of a young Cameron Diaz and claimed to have a valid model release appealed conviction for forgery.

When: California state appeals court ruled on Oct. 16.

Outcome: The appeals court upheld the conviction of photographer John Rutter.

What happened, according to court documents:

Before Cameron Diaz was a Hollywood starlet known for movies such as "Charlie's Angels," Jim Carrey's "The Mask," and "Shrek," she was a model who occasionally posed topless for photographs.

Cameron Diaz
Credit: Columbia
Cameron Diaz

When Diaz was 19 years old, she posed for John Rutter, a well-known photographer who did not pay her for photos but swapped his time in exchange for giving her prints. Some of these photos were topless, and Diaz claims she never signed a model release giving Rutter the rights to use them commercially.

Eleven years later, just prior to the release of "Charlie's Angels: Full Throttle," Rutter contacted Diaz and offered to sell Diaz the pictures from that shoot for $3.5 million. The photos included her wearing leather boots and fishnet stockings. Rutter claimed to have a model release and would eventually submit a sworn statement saying: "Ms. Diaz's signature on the model release is not a forgery or a phony as Ms. Diaz claims."

Police Blotter isn't going to link to any nude Diaz photos. (We figure that anyone who cares enough can figure out how to use a search engine.)

Diaz contacted the cops, Rutter's apartment was raided and his computers were seized. Prosecution experts testified at trial that Diaz's signature on the releases found in Rutter's computers and CD-ROMs had been forged, and a jury convicted him of attempted grand theft, forgery and perjury.

The case becomes relevant to Police Blotter because of evidence from Rutter's computers that was used as evidence by the prosecution. His attorneys argued on appeal that receiving a 113-page report from the prosecution's computer consultant just five days before the trial was inappropriate and damaging.

The defense attorney argued that until that 113-page report became available, he thought the only computer-related evidence of the alleged forgery was on CD-ROMs. But the report pointed to the laptop's hard drive as well.

The appeals court, on the other hand, said the objection was not relevant (for one thing, the defense attorneys had access to the seized laptops as well) and upheld Rutter's conviction. He is serving a four-year prison sentence.

Excerpts from the opinion by the California Court of Appeal (2nd District):

Rutter moved to exclude any expert opinion testimony derived from the contents of the laptop on the ground prosecution's late disclosure of such testimony unfairly prejudiced his defense. Rutter did not contend the prosecution had acted in bad faith, and he conceded the prosecutor turned over the report "the minute he got it."

He also acknowledged his own expert had access to and examined the same computers as the prosecution's expert. Rutter maintained, however, none of this was relevant. Prejudice did not arise from being denied access to the computers or to the report, he argued, but from being denied access to the expert's opinion the computer's hard drive showed evidence of the forgery. He explained that up until the time he reviewed the expert's report the prosecution's discovery disclosures led him to believe the only computer-related evidence of the alleged forgery was contained on the CD-ROMs seized from his apartment. Rutter intended to counter this evidence with evidence someone other than he placed the allegedly forged document on those disks. New evidence that the forged document was found on Rutter's laptop undercut this defense because it tied the forged model release directly to Rutter.

Furthermore, Rutter argued, allowing this new evidence meant he would have to retain a computer expert to again review the contents of the laptop and assess the validity of the prosecution's expert's opinion based on those contents. Rutter specifically rejected a continuance in order to have time to prepare a response to the prosecution's new evidence. A continuance would "severely prejudice" him, Rutter contended, because it would deny him his right to a speedy trial. He noted both sides had answered ready for trial and the jury had already been selected.

In response, the prosecutor argued the evidence at issue was not new. Rutter's defense team had been given unfettered access to the computers for two years before trial. It was not the prosecution's fault if Rutter's computer expert did not see or appreciate the significance of the contents of the laptop or did not draw the same conclusions from the evidence the prosecution's expert drew. Furthermore, the prosecution had advised Rutter's defense counsel three months before trial it reserved the right "to use any file items contained on the various drives and other media seized during execution of the search warrant in this case." Finally, the prosecutor told the court he had only recently been assigned to the case and had asked the computer expert to prepare the report in question so he would have a summary of the computer-related evidence for trial. He confirmed he gave a copy of the report to Rutter the day after he received it.

The trial court denied the motion to exclude the expert's testimony. The court ruled "we are not dealing here with new evidence, forensic or otherwise" and pointed out the defense had access to the hard drives and the ability to perform whatever forensic examinations it wished. For these reasons, the court concluded, "this isn't any surprise; isn't any ambush; isn't any violation of discovery."

On appeal Rutter argues the trial court erred in not excluding the prosecution expert's opinion, drawn from his examination of the laptop, because the prosecution did not turn over the expert's report of his examination until a few days before trial. This argument has no merit.

Rutter cites the first sentence of Penal Code section 1054.7 which states: "The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted or deferred." But Rutter ignores the next sentence of section 1054.7 which states: "If the material and information becomes known to or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately..."

In this case it is undisputed the prosecution immediately turned over its expert's report to Rutter. Thus the prosecution satisfied section 1054.7 as to the computer expert's report. Nothing in the record suggests the prosecution learned of its expert's opinion based on the laptop evidence prior to receiving his written report. Thus, Rutter failed to establish a violation of section 1054.7 as to any statement by the expert prior to delivery of his report.