Newspaper Attorney Alleges Computer Data Was Cloned

Marion County is expected to turn over a piece of evidence confiscated during a raid on the Marion County Record on Aug. 11 that was not included when authorities were ordered to return the items last week.

KWCH-TV12 reports Bernie Rhodes, the attorney representing the Record, submitted a letter to Marion County Counselor Bradley Jantz on Thursday regarding the items that were seized, stating that one item was missing.

“I wake up every day, and there’s a new constitutional violation that has occurred,” said Rhodes.

In the letter, Rhodes wrote that on Aug. 16, Judge Ben Sexton ordered that the evidence be “released and returned,” and that same day Undersheriff Larry Starkey transferred the seized items to a forensic examiner commissioned by Rhodes. But not everything was returned.

Earlier this week, Rhodes said he examined the inventory list that was filed with a court. It records an additional item than the list his forensic expert received last week - after the search warrant was pulled - when retrieving the items taken during the seizure two weeks ago.

“No one has been able to explain to me yet, despite the publicity, despite my threat of contempt, despite the threat we’re having to go back to get a second court order, why there are two lists. The whole point of an inventory list is to maintain what we call a chain of custody so that it’s clear what was taken so that can be used in court later. Without a valid chain of custody, all of it is just garbage.” He said, “The fact that we have two different versions of the same inventory sign apparently by the same officer, on the same date, using the same form, with the same official number on it, it’s garbage.”

More questions surrounding the Marion County Record raid. The attorney for the paper is seeking to get copies made of the paper's computers that appear on one evidence inventory list and not the one provided last week when items were handed back. @KWCH12 https://t.co/UbfmymQr52 pic.twitter.com/CQOBvREHZk

— Shawn Loging (@KWCHShawn) August 25, 2023

Rhodes said the “Data Forensic Chain of Custody Form” from that day contained eight items, but when he compared it to the search warrants and inventories posted on the District Court’s website, it showed nine items had been seized, including an “OS Triage Digital Data.”

“While the apparent alteration of the inventory list raises serious questions, what is clear is that item 9 on the inventory posted by the Court has not been “released and returned,” as the Court ordered,” Rhodes wrote.

Rhodes identified the item as a USB driver from OSForensics software from PassMark Software, an Australian company. He also said that it appeared to have been copied.

“It further appears that during - or after - the raid someone used this driver to copy or clone data from one or more computers owned by the Record,” Rhodes wrote. “This access is illegal. It also clearly violates the District Court’s August 16, 2023, Order.”