July 12, 2007

Genarlow Wilson Needs the Walsh Act

by PG

In the lastest chapter of the sorry saga of Genarlow Wilson's 10 year prison sentence for receiving oral sex from a girl two years younger than himself, people are criticizing Douglas County DA David McDade for giving the videotape of Wilson's sexual activity with the 15-year-old and a 17-year-old to "about three dozen people, including reporters, lawmakers and several members of the public who requested it." Because all the participants in the video are definitely underage, it constitutes child pornography under federal law. "State Sen. Emanuel Jones said he would introduce legislation to block district attorneys from handing over photographic images in sex cases.
'I'm going to call it the David McDade Act,' Jones said. 'Sometimes we have to protect our kids from district attorneys.'"

Ironically, we already do protect our kids from defense attorneys. Section 3509(m) of the Adam Walsh Act severely restricts the access of defendants, their counsel and their experts in alleged sex crimes to the images in evidence -- i.e., photographs and videotapes of the sex acts or the child pornography for which the defendant is being prosecuted. (See the end of the post for the full text.) I watched proceedings in federal court on Monday where a defendant had been in custody for 17 months and his attorney still has never has accessed the computer on which the pornography was stored. Given that once child pornography is found on your computer, your only hope is to convince a jury that it may have been put there without your knowledge (e.g. by a previous owner, another user, a virus), being able to have an expert evaluate how and when the files got there is rather important.

While prosecutors can freely distribute child pornography to help them look better in the public's eyes, and to convince legislators not to assist the defendant, the defendant himself cannot successfully request to "copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography" even in the course of preparing his defense, and even if he himself never sees it. Any request from those acting in the defendant's interests is deemed a request from the defendant, so even if a defense attorney swears on pain of disbarment that he will not let his client within 50 feet of the pornography, said attorney still cannot get a copy. I suppose a risk-taking journalist could make a public records request and then pass it along to defense counsel, but that's probably a good way to end up in the net of our expansive anti-child porn laws.

In U.S. v. Knellinger, the Eastern District of Virginia said the Walsh Act was not facially unconstitutional, even though a reasonable computer expert would not agree to take a case in which she was required to examine the hard drive on government premises because of the expense and difficulty of moving her equipment to a government facility and the inability to provide adequate assistance under those conditions, because the court ordered that a mirror image had to be provided to the expert. I don't know enough about technology to say whether a mirror image of a computer would capture all of the possible ways in which someone might unintentionally come into possession of child pornography. U.S. v.
O’Rourke, 470 F. Supp. 2d 1049 (D. Ariz. 2007), also found the Act not to be facially unconstitutional. Though citing Knellinger, Judge Babcock of the District of Colorado recently refused to let the defendant in U.S. v. Sturm have "bit-by-bit copies of all computer generated media, including discs and hard drives, containing evidence that the Government intends to introduce at trial." Under Georgia practices, however, I can get it!

TITLE V--CHILD PORNOGRAPHY PREVENTION

SEC. 501. FINDINGS.

Congress makes the following findings:

(1) The effect of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography on the interstate market in child pornography:

(A) The illegal production, transportation, distribution, receipt, advertising and possession of child pornography, as defined in section 2256(8) of title 18, United States Code, as well as the transfer of custody of children for the production of child pornography, is harmful to the physiological, emotional, and mental health of the children depicted in child pornography and has a substantial and detrimental effect on society as a whole.

(B) A substantial interstate market in child pornography exists, including not only a multimillion dollar industry, but also a nationwide network of individuals openly advertising their desire to exploit children and to traffic in child pornography. Many of these individuals distribute child pornography with the expectation of receiving other child pornography in return.

(C) The interstate market in child pornography is carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce, such as the Internet. The advent of the Internet has greatly increased the ease of transporting, distributing, receiving, and advertising child pornography in interstate commerce. The advent of digital cameras and digital video cameras, as well as videotape cameras, has greatly increased the ease of producing child pornography. The advent of inexpensive computer equipment with the capacity to store large numbers of digital images of child pornography has greatly increased the ease of possessing child pornography. Taken together, these technological advances have had the unfortunate result of greatly increasing the interstate market in child pornography.

(D) Intrastate incidents of production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the transfer of custody of children for the production of child pornography, have a substantial and direct effect upon interstate commerce because:
(i) Some persons engaged in the production, transportation, distribution, receipt, advertising, and possession of child pornography conduct such activities entirely within the boundaries of one state. These persons are unlikely to be content with the amount of child pornography they produce, transport, distribute, receive, advertise, or possess. These persons are therefore likely to enter the interstate market in child pornography in search of additional child pornography, thereby stimulating demand in the interstate market in child pornography.
(ii) When the persons described in subparagraph (D)(i) enter the interstate market in search of additional child pornography, they are likely to distribute the child pornography they already produce, transport, distribute, receive, advertise, or possess to persons who will distribute additional child pornography to them, thereby stimulating supply in the interstate market in child pornography.
(iii) Much of the child pornography that supplies the interstate market in child pornography is produced entirely within the boundaries of one state, is not traceable, and enters the interstate market surreptitiously. This child pornography supports demand in the interstate market in child pornography and is essential to its existence.

(E) Prohibiting the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the intrastate transfer of custody of children for the production of child pornography, will cause some persons engaged in such intrastate activities to cease all such activities, thereby reducing both supply and demand in the interstate market for child pornography.

(F) Federal control of the intrastate incidents of the production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the intrastate transfer of children for the production of child pornography, is essential to the effective control of the interstate market in child pornography.

(2) The importance of protecting children from repeat exploitation in child pornography:
(A) The vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and related media.
(B) Child pornography is not entitled to protection under the First Amendment and thus may be prohibited.
(C) The government has a compelling State interest in protecting children from those who sexually exploit them, and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain.
(D) Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.
(E) Child pornography constitutes prima facie contraband, and as such should not be distributed to, or copied by, child pornography defendants or their attorneys.
(F) It is imperative to prohibit the reproduction of child pornography in criminal cases so as to avoid repeated violation and abuse of victims, so long as the government makes reasonable accommodations for the inspection, viewing, and examination of such material for the purposes of mounting a criminal defense.

SEC. 504. PREVENTION OF DISTRIBUTION OF CHILD PORNOGRAPHY USED AS EVIDENCE IN PROSECUTIONS.

Section 3509 of title 18, United States Code, is amended by adding at the end the following:
"(m) Prohibition on Reproduction of Child Pornography.--
(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) shall remain in the care, custody, and control of either the Government or the court.

(2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.
(B) For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.''

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