In America, when you're charged with a crime, you're afforded the right to face your accuser. But what happens when your accuser isn't human?
In 2022, over five days in Akron, Ohio, jurors in the murder trial of a 19-year-old named Adarus Black heard from 17 witnesses, none of whom could place Black at the scene of the drive-by shooting that killed Na'Kia Crawford. They viewed surveillance footage, none of which showed Black in the car from which the bullet was fired. They were told the police had tried and failed to find Black's DNA in the car.
Witnesses saw Black with the driver of the car at a party shortly before the shooting. One witness testified that he saw Black leave with the driver; another witness said they saw the driver with someone but couldn't identify the person. The car was seen speeding past Crawford at the time of the shooting. But prosecutors had no direct evidence tying Black to the location of the murder, an Ohio appellate court later said.
What they did have was a secret weapon: the testimony of Adam Mosher and his AI-powered crime-fighting tool, Cybercheck. Mosher testified in court that Cybercheck, using a million lines of code and 740 proprietary algorithms, spent 21 days poring over hundreds of terabytes of publicly available data to triangulate Black's cellphone at the time of the murder and place him within a few feet of the crime scene with more than 90% accuracy. Mosher told jurors that his technology could detect when a phone pings a nearby WiFi network in a fully automated process that could be performed without the phone itself. A lawyer for Black who had been appointed by the court four days before the start of the trial never questioned these claims.
Jurors deliberated for less than four hours before returning a guilty verdict. Black's attorneys, who interviewed members of the jury after the verdict, claimed in a posttrial motion that the jurors said they would not have convicted Black without Mosher and his Cybercheck report. Mosher and Cybercheck were the "sole basis for conviction," Black's attorneys wrote.
Black is one of many criminal defendants whose fates were determined in part by Cybercheck's secret algorithm. The program has popped up in cases in Colorado, New York, and Florida. On its website, the company claims to have "proven success" in more than 300 cases, including 209 homicide cases. As NBC News said in a story about Cybercheck's widespread use, at least one prosecutor in New York claimed in a legal filing that it had been used in nearly 8,000 cases.
Business Insider has identified more than 100 law-enforcement agencies that have contracted with Cybercheck, including police departments in Philadelphia, Houston, and Denver.
But serious questions have been raised about the program and its reliability. At least one attorney in Akron has called out inconsistencies in Mosher's résumé, including trials he claims to have testified in that never happened and a university peer review that was never performed. In one case, a judge threw out Cybercheck evidence. Prosecutors in two others have withdrawn Cybercheck reports. Mosher could face contempt-of-court charges in another case. And the sheriff's department for Summit County, Ohio, is investigating whether he provided false information in court, according to two people familiar with the matter.
Little is known about Mosher, who launched Cybercheck in 2016. An archived version of his LinkedIn page, which has since been deleted, lists two years of education in media arts and film at a for-profit art school in Canada, three years of education in "Police Science and Law" at Fleming College in Toronto, and certifications in computer forensic analysis and ethical hacking. (In court documents, a defense lawyer said Mosher had no college degree and had never served in law enforcement.) It also says he worked as a security director and forensic consultant before founding Cybercheck.
Mosher stepped down as the CEO of Cybercheck in September, transitioning into the role of CTO. He was replaced by a former Salesforce employee, Chris Ramsey, who left the company a few months later.
In June, Mosher was removed as a director of Cybercheck, according to business documents obtained by Business Insider. It's unclear whether he still works for the company he founded.
Adam Mosher and Cybercheck did not reply to a request for comment.
AI technology has at times been ascribed almost magical capabilities. It can write computer code, analyze legal documents, generate hit pop songs, and fake photos indistinguishable from reality. It's said to be coming for all our jobs, from warehouse worker to Hollywood actor.
Many of these claims have been hard to verify. AI models, with their mountains of training data and billions of parameters, are often black boxes. Even their creators can't always say exactly what's going on inside them. That's left an opening for some who might seek to use the halo of artificial intelligence as a cover for technology that's less than reliable.
Police departments and prosecutors across the country are increasingly relying on AI software to recognize faces, detect gunshots, forecast crime, spot homeless encampments, and generate lists of activists, "thought leaders," and "disrupters" to be targeted for surveillance.
But defense attorneys face an uphill battle in trying to challenge the reliability of evidence generated using AI. After all, you can't cross-examine a black-box model. Though prosecutors are generally required to turn over all evidence during the discovery process, companies like Cybercheck can argue the algorithms and training data that power these AI tools are proprietary trade secrets of the private companies that develop them and therefore can't be disclosed.
In many cases, prosecutors themselves don't even have access to the source code and haven't reviewed the underlying technology. It then falls to local judges, who likely don't have doctorates in computer science or an understanding of high-level matrix math, to decide whether to grant access to the defense.
In Summit County, Ohio, prosecutors were using Cybercheck for nearly two years before someone started asking questions. That someone was Donald Malarcik, a defense attorney in Akron who has represented eight clients in Summit County who've been prosecuted using Cybercheck evidence.
He first encountered the software in 2022 when he took on the case of Javion Rankin, who was charged with murder in the death of Tyraye Carter in 2020. In that case, court filings say, a Cybercheck report linked Rankin to an email address — [email protected] — and an IP address that together placed Rankin at the scene of the crime.
"I hired some digital-forensic experts, and they started looking at it, and they're like, I don't know what the hell this thing is," Malarcik told BI. "The first thing they say is let's get access to it." Malarcik said that the judge in the case ordered prosecutors to turn over the source code for Cybercheck — but that prosecutors refused.
"The prosecutor says no, we don't have it, we can't get it, and Adam Mosher won't give it to you," he said.
Malarcik went looking for other cases where Mosher's technology had appeared. That led him to a defense attorney named Eric Zale, who was representing a client in Boulder, Colorado, facing evidence generated by Cybercheck.
Malarcik and Zale agreed to pursue a similar strategy. They asked their judges to issue orders requiring Mosher to provide comprehensive details about his past testimonies, including case names, dates, and locations where he had served as an expert witness.
While he initially claimed during testimony in court to have been an expert witness in more than a dozen cases, Mosher could identify only two cases, both in Canada, where he had testified, according to transcripts of the Ohio proceeding. Zale dispatched a private investigator to contact prosecutors in both cases. They disputed Mosher's recollections — and one said no criminal trial had ever occurred.
"Mr. Mosher has not testified as a witness (expert or otherwise) on one of our files (in trial or any other type of proceeding)," Shara Munn, a New Brunswick crown prosecutor, wrote in an email attached as an exhibit in a court filing. She wrote that the first time she'd even heard of Mosher was when he approached law enforcement of his own accord offering his services as an expert witness. The suspect in that case was an employee of a company Mosher had done consulting work for. No one was ever charged.
"Mr. Mosher has apparently testified he provided expert evidence on one of my cases. This is not accurate," Richelle Freiheit, a Calgary crown prosecutor, wrote in a similar email attached as an exhibit in a court filing. She wrote that Mosher reached out to her office offering a trove of data he said was evidence of child-sexual-abuse material. The suspect in that case was Mosher's brother-in-law, Freiheit wrote.
"Technicians were unable to read or analyze it or locate anything pertaining to CSAM," she wrote. The defendant in that case pleaded guilty on the first day of trial, and no one ever testified, the email said.
Mosher never produced transcripts of his testimony in either case, even after a judge ordered him to do so.
The prosecutor in the Colorado case, after learning about these inconsistencies in Mosher's story, dropped the charges against Zale's client.
"Based upon information recently obtained, the People no longer have a reasonable likelihood of conviction should this case proceed to trial," Meghan "Breck" Roesch, a deputy district attorney, wrote in a legal filing at the time.
Back in Akron, the judge in Rankin's case ordered the Cybercheck evidence excluded after prosecutors failed to turn over the source code.
The "defendant cannot prepare a defense when denied access to an undisclosed proprietary software program and framework that cannot be replicated," she wrote in her ruling. The filing also included screenshots of a Google search she performed in which she was able to link the email address in the Cybercheck report, [email protected], to a disc-golf player in Nevada and the IP address to a computer in Pennsylvania.
But unlike Roesch in Colorado, Ohio prosecutors weren't ready to give up on Cybercheck. They've appealed the judge's decision, arguing that because they themselves don't have Mosher's underlying code, they aren't required to turn it over. Rankin, who's still on trial, has been released while the appeal is pending.
Malarcik, for his part, isn't finished with Mosher and Cybercheck.
"Now I just find every murder case in Summit County that's using Cybercheck and I volunteer," he said. "I say I'm going to join your defense team pro bono. I won't charge a dime, and we're going to stop this nonsense."
One of those cases was the murder trial of 61-year-old Phillip Mendoza. On the evening of August 2, 2020, gunshots rang out on Fifth Avenue in East Akron, Ohio. Kimberly Thompson and Brian James were struck in the legs as they exited their car, sustaining non-life-threatening injuries. Thompson's 20-month-old grandson, Tyree Halsell, was struck in the head and later died at a local hospital.
Two years later, at the request of the Akron Police Department, Cybercheck's automated system, ostensibly without any human in the loop, searched publicly available data and issued a report that placed Mendoza's phone at the location of the shooting with 93.13% accuracy. The only problem? The report, a copy of which was attached to a court filing, claims Mendoza's phone was at the crime scene on August 20, 2020, 18 days after the shooting.
This went unnoticed for four months, until the police department informed Cybercheck of the discrepancy on January 24, 2023, according to documents included in a court filing. That day Cybercheck issued a word-for-word identical report, citing the same data with the same 93.13% accuracy rate. But the date was changed to August 2, 2020. One month later, Mendoza was arrested and charged with murder.
The Akron Police Department did not reply to a request for comment.
Vestige Digital Investigations, a forensics company Malarcik hired to review Cybercheck's evidence, submitted a report to the court calling into question "the accuracy and legitimacy of the CyberCheck system" for producing two identical reports with different dates. "It is implausible that the same number of cyber profile hits, for the same cyber profile, was picked up by the same wireless routers at the same time on two different days," the report concluded.
In a motion in Mendoza's trial, Malarcik also challenged Mosher's claims about Cybercheck's use in another case in Ohio. Mosher had testified in two Summit County murder trials about using Cybercheck to help locate a suspect hiding in a tree in Portage County. In court transcripts, Malarcik said that he spoke to the head of the criminal division in Portage County, Steve Michniak, who had never heard of Mosher or Cybercheck, and that the details of the homicide Mosher described didn't match any of the three homicides in Portage County that year. Malarcik said Michinaik told him that officers did find a suspect in a tree, but not as part of a homicide investigation, and that the officers found the suspect with a drone using an infrared camera.
During Mendoza's trial, Mosher testified that Cybercheck had been peer-reviewed by scientists at the University of Saskatchewan, a claim that the university later denied.
"The University of Saskatchewan was not involved in the creation of this document nor did they create any content for this document," a university representative wrote in an email attached to a court filing.
Following that revelation, the judge in the case referred Mosher to Summit County's sheriff's department, which opened an investigation into whether he provided false information to the court, two people familiar with the matter said.
When reached for comment, William Holland at the department said he could not comment on an ongoing investigation.
Prosecutors in Mendoza's case ultimately decided to withdraw Cybercheck's evidence before it could be subjected to a hearing to determine its reliability. Mendoza is still on trial.
Indeed, Summit County prosecutors seem to be souring somewhat on Mosher and his model. They've withdrawn Cybercheck evidence in at least two cases. Nearly two years after they began using Mosher's company, prosecutors said in court documents that they were looking for experts to study the validity of its evidence.
"Not to put too blunt a point on it," one prosecutor, Brian Stano, said in court transcripts, "Mr. Mosher, great at software, great at open-source intelligence, a work in progress on the law."
The Summit County Prosecutor's Office declined to comment when reached by BI.
Adarus Black remains in a medium-security prison on the shores of Lake Erie, serving a life sentence for murder. He's appealing the conviction, arguing that his lawyer failed him at trial by not challenging Mosher's testimony.
His lawyer would have had little time to challenge anything — he was appointed only four days before the start of the trial. Before the trial began, according to a court transcript, the judge warned Black that he was facing a new kind of evidence, "something that's a little more unusual than we typically see in trial." Black's attorney responded that he had more than 20 years of experience handling murder cases and had "a good idea of what to expect and how to handle the case."
Black's attorneys did not reply to a request for comment.
It's unclear how many others may be behind bars because of Cybercheck evidence that was never rigorously scrutinized.
"AI is so new, and there's so much hype," Malarcik said. "These police officers and prosecutors just bought into the latest, greatest claims that AI will solve everything."
Additional reporting by Katherine Long and Jack Newsham