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July 13, 2011

"Accused sex offender allowed to watch child porn in jail"

The title of this post is the headline of this local article out of Washington state concerning a story which becomes somewhat less alarming (though still notable) when all the details are explained. Here are all the details:

A strange quirk in the law is allowing an accused child rapist to watch child pornography inside the Pierce County Jail. Marc Gilbert is accused of sexually assaulting young boys and videotaping the abuse.

Under the law, defense attorneys are allowed to review material tied to the case. And because Gilbert has chosen to act as his own attorney, he has had unlimited access to the pornographic footage. Therefore, the jail says it has no choice but to allow Gilbert to review the footage times over with no limits. Restricting his access would risk a mistrial.

Investigators seized from Gilbert's possession more than 100 DVDs containing 28 hours of pornographic footage. Some of the material was allegedly shot by the former jet pilot, and feature the young boys he's accused of luring to his home and exploiting.

The prosecutor and the sheriff say the results of the legal loophole are sickening in this case, but say the state Supreme Court has ruled in Gilbert's favor. "Make no mistake -- I don't like it," said Pierce County Sheriff Paul Pastor. "But it is not my choice whether to do it or not to do it. There's no question that I don't like it. There's no question that this makes me grind my teeth."

"We don't like it. We don't want to do it, but we have to follow the law. The fix here is to change the law," said Pierce County Prosecutor Mark Lindquist.

To make sure no other inmates get a chance to see the pornography, Gilbert is made to review them in a separate room. Child advocates say allowing the tapes to be viewed further victimizes the victims.

I am not sure it is quite right to describe this defendant's right to defend himself by having access to the evidence against him as a "strange quirk in the law" or as a "legal loophole."  Nevertheless, as the headline suggest, this is a story that seems sure to be sensationalized.

Digging a bit deeper, I wonder about the local prosecutor's suggestion that the "fix here is to change the law" concerning access to trial evidence by the defense team: could there be constitutional problems with entirely preventing a defendant from having at least some access to the principal evidence to be used against him at trial?

July 13, 2011 at 04:52 PM | Permalink

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Comments

This can't be how it works in every contraband case, can it? If an accused coke dealer is representing himself, is he allowed to sit alone in a room with the pile of blow all day?

Posted by: Anon | Jul 13, 2011 7:15:31 PM

Anon,

No, but in a drug case the defendant has no personal ability to perform tests to show that some amount of the material is not in fact drugs. I imagine that even in a drug case the prosecution would have to make some amount of the material available to a lab of the defendant's choice if there is actually a contested issue on the nature of the material. In a child porn case on the other hand, it might be very important to the defense to show that some amount of the material is legal, or contest the prosecution's characterizations of the material in other ways (sadism or whatever). I'm not saying that's what this defendant is doing, he may well just be sitting there getting his rocks off but I can also see that it would be extremely dangerous to deny such access.

I recall in the Sami al-HHussein case (the University of Idaho graduate student charged with aiding terrorism based on his web admin work) that the feds made it very difficult for his defense team to gain access to the e-mails and other material at issue. One such restriction being that the defendant could access anything not already admitted to the court, and that anyone he hired needed a security clearance (and be able to translate Arabic as that was the language most of the material was in. Even with those restrictions the government still was unable to get a conviction on any count. Not guilties on the aiding terrorism, hung on immigration violations - where the government was claiming that performing as a volunteer is still work in violation of a student visa.

So with cases like that in mind I can very well see that in a case like this it is in fact necessary to allow the defendant to access the contraband.

Posted by: Soronel Haetir | Jul 13, 2011 7:58:37 PM

In my federal district, defense attorneys must go to the prosecutor's office or the FBI's office to view the child pornography at issue in the case, and they cannot have copies. They are left alone in a room, and they can take as much time as necessary, but since it is contraband, the CP is not allowed out of the government's control. Federal judges have upheld this procedure.

Posted by: domino | Jul 13, 2011 8:04:27 PM

This is not a peculiarity of the law. It reflect the unique and peculiar nature of a law that criminalizes seeing something.

Posted by: Bark | Jul 13, 2011 9:13:59 PM

domino -- I believe that is required by the Adam Walsh Act, or one of the other recent federal statutes.

Posted by: Jay | Jul 13, 2011 10:39:18 PM

domino, I've heard of this rule in other places but what is the State to do when the accused is representing himself and is being held without bond or is otherwise unable to pay his bond?

Posted by: Anonymous | Jul 14, 2011 3:14:24 AM

[Civil litigator] Domino, it is not a "peculiar nature of nature that criminalizes seeing something." It criminalizes POSSESSING something - and that "something" is child pornography.

Posted by: rodger eckelberry | Jul 14, 2011 1:14:31 PM

In Federal cases, the Adam Walsh Act ordinarily precludes release of child pornography directly to defense counsel, but requires that "ample opportunity" be provided to examine the contraband at a government facility. A few courts have found that, where the conditions set by the government were too restrictive (e.g., arbitrary time limitations, surveillance, cost multipliers to the defense, etc.), the requisite "ample opportunity" did not exist and the child porn had to be disclosed.

For a defendant representing himself, "ample opportunity" would mean that he would have to be regularly ferried to the government facility, given the use of a computer, allowed to consult with experts there, etc. This would pose obvious security risks -- most government facilities aren't built to hold prisoners, and the defendant might be able to misuse or subvert the computer system -- and the transportation would be costly. It seems better and more efficient to give him access at the jail where both he and the computers can be secured.

BTW, in my jurisdiction (NY), there are court decisions holding that defendants do have a right to conduct independent testing of drugs, although in practical terms, the drugs are usually shipped directly from the law enforcement agency to the lab rather than going through defense counsel.

Posted by: Jonathan Edelstein | Jul 14, 2011 3:07:13 PM

Yes, it technically criminalizes possession. But if that is the case, there is nothing perverse about this defendant viewing the material, because he is not doing anything illegal by doing so. He is not possessing it.

Really, possession is a way to punish viewing. People are angry because this man might get to view child pornography, not because he might possess it. It is not the possession that causes harm, it is the creation and the fact of it being viewed. It is the only crime where we think that seeing something is wrong in all circumstances. So it should not be surprising that this peculiar crime causes peculiar results.

If we viewed the harm in narcotics to be seeing the narcotics, as opposed to merely possessing it, we would run into the same bizarre problem if a defendant wished to inspect the narcotics.

Posted by: Bark | Jul 14, 2011 3:08:47 PM

This is about as perverse as making it illegal to read a banned literary work and then having to deal with a situation in which a defendant representing himself must be permitted to re-read the book as part of his own defense. It is a unique and strange result of viewing the ultimate criminal activity and harm as a matter of thought or perception.

Posted by: Barkley | Jul 14, 2011 3:11:10 PM

This person should rely on a practiced attorney to represent him instead. Looking at these films will have a long term devastating effect on his recovery when he gets to therapy. If he does get acquitted for some strange reason, viewing child porn in his current state of mind will only cause him more harm.

Posted by: Book38 | Jul 14, 2011 8:39:00 PM

Book38,

Like I said, he may well just be getting his rocks off rather than actually doing any work on his case but I still see prohibiting such access as being very dangerous. For all I know he all but knows he's going to be convicted (seems likely if he's able to think rationally about his situation - something I'm not entirely sure of), and this is his gaming one last minor benefit before being sent to prison for a long time. In that context it might even be his best move in a game theory sense, lawyers wouldn't be able to secure any better situation for him so use the system to gain access to his collection while he still can.

Posted by: Soronel Haetir | Jul 15, 2011 9:23:45 AM

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