Wednesday, October 08, 2008


This is to some extent a follow-up to my last post on the Adam Walsh Act, 18 U.S. Code § 3509.

As I noted there, the Act requires prosecutors to maintain custody of the digital images of child pornography they intend to use in a prosecution, as long as they give defense experts a reasonable opportunity to examine those images (usually in a federal law enforcement facility).

This post is not about the Adam Walsh Act, per se. It’s about what I consider to be a bizarre result of the mentality that resulted in the adoption of that Act.

As I wrote in my earlier post, the Adam Walsh Act grew out of the belief, among many federal prosecutors, that since child pornography is contraband, the possession of which is illegal, they could not give defense attorneys and experts copies of the images to be used in a child pornography case. The assumption was, as I noted before, that if they gave a defense attorney and/or a defense expert a copy of the images, the defense attorney and/or the expert would then be committing a crime: possessing child pornography. (And I also suppose that the prosecutor who gave the attorney and/or expert the copy of the images would, literally, anyway, be committing the crime of disseminating child pornography.)

Now, when courts allowed defense attorneys and experts to have copies of such images they did so subject to what is called a protective order, a court order that say, in effect, “you have the right to possess this material but only for the purposes of preparing your defense and only for as long as you need it for that purpose.” Orders like this simply reaffirm the obligation attorneys – as officers of the court – are already aware of; and I think the same holds for the experts who examine this kind of material. But the attitude I noted above triumphed and Congress enacted the Adam Walsh Act.

I recently ran across a case from the U.S. Court of Appeals for the Seventh Circuit that illustrates the continuing viability and, I submit, inherent absurdity of that attitude. The case is U.S. v. Griesbach, 549 F.3d 654 (7th Cir. 2008), and it involves Mr. Griesbach’s motion to suppress images of child pornography found on his computer. As the Seventh Circuit noted, the basis of the motion “was absence of probable cause to support the warrant to search the computer's files in which the images on which his conviction is based were found.” Here’s how the Seventh Circuit described the process used to establish probable cause:
The warrant, issued by a Wisconsin state judge, was based on the affidavit of a state police officer who was investigating the defendant's . . . violation of a Wisconsin statute that makes it a crime to possess images of a `child engaged in sexually explicit conduct,’ defined to include `lewd exhibition of intimate parts.’. . .The Supreme Court of Wisconsin has explained that to satisfy this definition `the photograph must visibly display the child's genitals or pubic area. Mere nudity is not enough.’ . . .

The affidavit described three images the police investigator had found on the Internet and traced to the defendant. The first `depicts a prepubescent female posing by a body of water. She has her top pulled up to expose her breasts.’ The second `depicts a female who appears to be under the age of 18 posing naked. She is standing to expose her full body.’ The third `depicts a naked female exposing her vagina. The female is lying on her back and her vagina is the primary focus of the image. The female appears to be under the age of 18. . . .’

The government distinguishes between `child erotica’ and `child pornography,’ places the first two images described in the affidavit in the first box, and so defends the finding of probable cause solely on the basis of the third image. . . . [T]he Wisconsin legislature . . . has decided to draw the line between child erotica and child pornography, and the government concedes that if the affidavit failed to establish probable cause to believe that the third image was pornographic, the warrant was unconstitutional.
U.S. v. Griesbach, supra.

Now we come to the absurdity:
The failure of the state investigator to submit the image itself with her affidavit to the state judge is the strangest thing about this case -- unless it is the statement by the government's lawyer that it is the policy of his office not to submit pornographic images to a judge when seeking a search warrant, for fear of `disseminating pornography.’ That position is hard to understand, since in any prosecution for child pornography the essential evidence is the pornography rather than a verbal description of it, and it becomes part of the official record of the case. It is true that the Adam Walsh Child Protection and Safety Act . . . provides that `in any [federal] criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court.’ . . . But neither that nor any other statute of which we are aware forbids submitting child pornography to a judge in support of a request for a search warrant, since, like other evidence in a case, it would remain in the court's control.

A picture may be worth a thousand words, but the affidavit's 20-word description of the third image (`a naked female exposing her vagina. The female is lying on her back and her vagina is the primary focus') is not worth even one picture. The judge to whom the affidavit was submitted should have asked to see the image.
U.S. v. Griesbach, supra. The Seventh Circuit ultimately held that the description was enough to establish probable cause, in part because the image belonged to a known series of
pornographic images. . . . Not all the photos in such a series are bound to be pornographic, but most will be, and if the suspect is discovered to possess one image in the series the inference that he is a consumer of pornographic images and possesses such images found in this or some other pornographic series is strong.
U.S. v. Griesbach, supra. (The court had earlier noted that the image was from “identified child pornography series `Chelsea’”).

I have no objection to the court’s holding, but I am amazed to learn that a federal prosecutor was afraid to attach the image in question to the affidavit submitted to establish probable cause for the warrant to search the suspect’s computer for fear of “disseminating child pornography.” That’s completely absurd, as far as I'm concerned.

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