Sunday, October 17, 2010

If I showed You the Evidence, I'd Be Guilty of Distributing Child Porn

The Rapid City Journal has this remarkable report relating to a prosecutor's refusal to turn over images to the defense counsel in a child porn case because as this post header says, the Prosecutor claims it would be an illegal distribution of child pornography.:

"Releasing evidence to a defendant's attorney would make her guilty of distributing child pornography, prosecutor Laura Roetzel said Wednesday.

Pennington County's chief deputy state's attorney has refused to hand over copies of photo evidence in the case against John Rolfe to his attorney.  Rolfe, 59, is accused of three counts of first-degree rape and 12 counts of the manufacture, distribution and possession of child pornography. He is being held in the Pennington County Jail on $1 million bond.

Both state and federal statutes prevent her from releasing the information, Roetzel said. 'I would be guilty of disseminating child pornography,' Roetzel said.

Rolfe's attorney is free to examine the evidence in the Pennington County State's Attorney's Office, which is a common practice in these cases, Roetzel said.

During Wednesday's hearing, Roetzel announced that she plans to ask the court to permanently suspend Rolfe's telephone privileges. Roetzel said later that Rolfe is making harassing telephone calls to people who are peripherally involved in the case.  Roetzel and Rolfe's attorney will present their arguments at a motions hearing at 9:15 a.m. on Nov. 1."
Seems to me that an argument exists that the defendant has a de facto deprivation of due process claim.  For one thing, without knowing more about the specific facts of this case, we can point to at least one situation over the last year where a defendant, facing 20-years, was able to prove that the alleged "child" in alleged child pornography video was an adult.   One could conceive of the situation where absence some prolonged access to such material would deprive the defense counsel of the ability in a similar fashion to explore this defense.  Furthermore, there is the question of chain of custody, possession of the "evidence" might permit testing or other forms of examination to establish manipulation of the images, or a source or custody other than the defendant.

I know that I previously related the case involving my client, a 17-year old male high school special ed student and star athlete, who was sexually exploited by his female substitute teacher.  In fact my client fathered a child with this educator; although his lawsuit brought after his 21st birthday was tossed by the civil courts because of the restrictive OurState statute of limitations

Unfortunately, the parents of my client turned over numerous photographs on CD-ROM constituting evidence of the crimes against their son.  These were rank sex images of this teacher having sex with my client and other teenage boys.  In turn I provided these images to the prosecutor who convened a Grand Jury.  Who got indicted?  My clients.  Yes, my clients: the parents, (as an aside I should have realized that my career was swirling down the drain),--why?  The prosecutor accused my clients of possession of child pornography!  The charges were subsequently dismissed, but not before these poor folks were humiliated in the press, had to hire a criminal defense counsel and all the other horrors you might imagine. 

It sounds to me like the same sort of thinking (?) is going on here. 


  1. I had made up my mind I was going to comment on this post after a couple of graphs. Something to do with WTF!
    However, you tied up everything real nice at the end. So I have nothing to add.

  2. I'm a criminal defense attorney, so I hate to say this - but I think I agree with the State on this one. If they were required to turn over illegal child pornography to the defense, then why shouldn't the defendant in a drug case be able to get a sample of the alleged drugs, to do his own investigation?

  3. Interesting comments, I am nobody's excuse for a CDL but I do think there is a material difference between the evidentiary materials being discussed. While I don't think child porn needs full-scale distributiion a licensed lawyer defending a client is stupidly denied this evidence as a blanket rule, which was my point. On the other hand, should a CDL have access to alleged cocaine seized by arresting officers to have it "tested," sure. I suppose the same logic applies that for the purpose of establishing that evidence of a crime is in fact what it purports to be, then denying reasonable access is a denial of due process.

  4. My point in my 10:09 post wasn't very clear. I was thinking that if the defense attorney gets to take copies of the pornographic images back to his office for extended analysis, shouldn't I get to take some cocaine back to my office so that I can, you know, "check" it. :-)

    But of course, with that analogy, you are correct that it would be a violation of due process if the defendant couldn't have scientific tests done by the lab or expert of his choice. So although the state shouldn't just hand me a folder full of child pornography to take home with me, there needs to be some process for the defense to have the images investigated by an expert.