That prosecutor’s behavior may seem strange, but in a sense it’s the logical outcome of a view that has become increasingly popular and that, as I noted in the post I did last fall, resulted in Congress’ adopting the Adam Walsh Child Protection and Safety Act of 2006, Public Law No. 109-248 § 504, which went into effect on July 27, 2006. As I explained in another post I did last fall, the Act was codified as 18 U.S. Code § 3509(m).
Section 3509(m) says that in federal cases, the court is to deny “any request by the defendant to . . . copy . . . any . . . material that constitutes child pornography”, even when the defense wants the material to have it examined by its own expert witnesses. As I noted in that post, this is important because virtual child pornography – computer generated child pornography – is not a crime. So if a defendant shows that what he or she possessed was child pornography that was created digitally, and did not involve the victimization of real children, then he/she should be acquitted on all charges.
This brings me to a recent case from Tennessee: State v. Allen, 2009 WL 348555 (Tennessee Court of Criminal Appeals 2009). The defendant in the case – Reĺicka Allen – was charged with possessing child pornography a computer technician discovered on Allen’s computer after he took it in to be repaired. State v. Allen, supra. The technician told the computer store manager what he’d found, the manager called the police and Mr. Allen was charged with possessing child pornography. State v. Allen, supra.
Allen filed a motion asking for a copy of the hard drive so that his expert could examine it. The prosecution refused, but offered to let the expert examine the hard drive at the Sheriff's Department. Allen then asked the court to compel the prosecution to give him a copy of the hard drive. The court held a hearing on issue, and Allen’s expert explained why he needed a copy of the hard drive:
Herbert Mack . . .described . . . the . . .programs and viruses by which material can be both deliberately and inadvertently downloaded into a computer and estimated it would take him approximately one week of intensive twelve-to fourteen-hour days to complete an examination of [the] hard drive. He testified he would probably require the assistance of support personnel from his office and, in addition, would need to consult regularly with counsel with respect to whether any sexually explicit files he found on the computer qualified as child pornography. He said that, given the large number of images allegedly contained on the computer, he would not be able to remember the specifics of the information without taking the computer hard drive from the sheriff's department.State v. Allen, supra.
Mack expressed concern about working from a `mirror image’ rather than the hard drive itself, testifying that the programs in existence did not create true mirror images:
A. . . . . If what you're going to give me is a mirror image, my concern there is that I'm not getting all of the data that's there.
Q. And why is that? If it's a mirror image wouldn't you just get everything that's in the mirror?
A. No, sir.
Q. Why not?
A. A mirror image is a misnomer, okay. The computer programs that you have right now, okay, are for the purpose of recovering good data. Okay. So if a file has been ordered damaged or erased it's not going to be on the image. . . .
Mack testified that the risk of transmitting inaccurate information was high if defense counsel was dependent upon Mack to tell [him] what he had seen on a . . . disk image. Mack stated that there was an increased risk of disclosing non-discoverable information because the State's expert would be able to determine what tools had been run on Defendant's computer hard drive and what information had been recovered before Defendant was obligated to disclose its expert report. Mack also stated that Defendant would have no choice but to involuntarily disclose information that was not subject to discovery and that Defendant did not intend to use at trial.
After the hearing, the trial court issued a protective order requiring the prosecution to give Allen’s expert a copy of the hard drive. The prosecution refused. Allen filed a motion to suppress the evidence, in effect as a sanction for the prosecution’s refusal to comply with the court’s order. State v. Allen, supra. Instead of granting the motion to suppress, the trial court issued a second order requiring the prosecution to give Allen’s expert a copy of the hard drive. State v. Allen, supra.
The prosecution appealed that order to the Tennessee Court of Criminal Appeals, which upheld what the trial court had done: “We find these orders reasonable and appropriate, especially given [Defendant's] computer expert's testimony with respect to the extensive and exhaustive work entailed in his examination of [Defendant's] computer hard drive. Accordingly, we conclude that the trial courts did not err in granting Defendant['s] motion to compel the production of the evidence.” State v. Butler and Allen, 2005 WL 735080 (Tennessee Court of Criminal Appeals 2005).
The prosecution still refused to comply, so Allen filed another motion to suppress the evidence. The state filed a motion saying it could not comply without violating § 3509(m). State v. Allen, supra. The trial court denied the motion because it found that nothing in Tennessee law prevented it from ordering that Allen’s expert be given a copy of the hard drive. The prosecution filed another claiming § 3509(m) prevented it from complying with the order; Allen’s attorney filed a brief pointing out that other courts had found that § 3509(m) doesn’t bind state courts. (It’s a federal statute, after all.)
The state filed a motion asking the court to reconsider and at the hearing on that motion the prosecutor told the trial court he had contacted the local U.S. Attorney’s office and
`disclosed that a copy of the mirror image of the hard drive would be provided to defense counsel and their experts. The State informed the court that defense counsel, any defense expert, as well as court staff and others could be at risk of federal prosecution for possession of child pornography in violation of the Adam Walsh Act if the discovery material was turned over to Defendant.’State v. Allen, supra. The prosecutor threatened the judge with § 3509(m) to try to get him to deny the request for a copy of the hard drive. After they had an exchange in which the prosecutor pretty much made that clear, the court ordered that the hard drive be suppressed because the defense counsel and expert were “totally chilled from being able to evaluate their own-evaluate the evidence against them.” State v. Allen, supra. The prosecutor then said the judge was effectively dismissing the charges and basically asked the judge to do so formally, so he could appeal the decision. The judge did.
On appeal, the Court of Criminal Appeals held that § 3509(m) “does not apply to proceedings in Tennessee state courts.” State v. Allen, supra. It also noted that it had
been unable to find a single state or federal criminal prosecution of defense counsel anywhere in the country based on counsel's possession of child pornography as part of a state's discovery procedures. We think the likelihood of federal prosecution of defense counsel in this case for possession of child pornography is remote at best and did not justify the suppression of evidence and dismissal of the prosecution of Defendant.State v. Allen, supra. The Court of Criminal Appeals noted that while it understood the trial court’s frustration with the prosecutor’s “persistent refusal . . . to comply with court orders”, the court should have used its power to hold the prosecutor in contempt to deal with the problem. State v. Allen.
Needless to say, I think things are really getting out of hand when it comes to dealing with child pornography evidence.