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Releasing Copies of Evidence = Violation of Federal Child Porn Laws?

The Atlanta Journal-Constitution reports (thanks to How Appealing for the pointer):

Douglas County District Attorney David McDade violated federal law when he distributed a videotape from a rape and child molestation case to legislators and journalists, the U.S. attorney's office said Wednesday.

U.S. Attorney David Nahmias said federal law prohibited distributing the videotape because it depicted minors engaged in sexually explicit conduct and warned that people who had received it would be in violation of federal child pornography laws.

The videotape was of the raunchy party in a Douglasville hotel room that led to the conviction of Genarlow Wilson on aggravated child molestation charges. Wilson was 17 at the time and the tape showed him receiving consensual oral sex from a 15-year-old girl. The video has been given to both reporters and legislators....

McDade told The Associated Press he was required to release the tape under the state's Open Records Act because it was introduced as evidence at the trial.

The distribution of such material would indeed normally be child pornography; and the federal child pornography ban would preempt any state law to the contrary. The questions, I take it, would be:

(1) Is there some implicit exception to the federal law as to videos such as this one, and what is its scope? I take it that there must be some such exception, or else the video couldn't even be handed from the police to the prosecutor in federal enclaves, such as D.C., but the question is whether the exception extends to distribution to the media and to legislators.

(2) Should the First Amendment be read as mandating an exception for videos and photographs that are evidence in a criminal trial, and seeing which may be helpful to understanding whether justice was done in the criminal process (which is to say whether the sentence was substantively sound, not just whether the procedures were followed) -- and, again, what should the scope of the exception be?

(3) Is there some state sovereign power limit on federal law, where the distribution or possession of the material is part of the state government's law enforcement process (this would apply to, for instance, e-mailing or mailing material within the prosecutor's or police department's office) or as part of the state government's compliance with its own public records laws?

I don't know what the answers to these questions are, but the issue struck me as worth flagging.

By the way, "Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it." That is certainly very good advice for anyone who has the tape in his hands, and who is rationally risk-averse.

Related Posts (on one page):

  1. Law Enforcement Possession and Distribution of Contraband:
  2. Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
Zathras (mail):
The immunity defense looks pretty rock solid. The only way the federal government can abrogate the immunity is for laws promulgated under the 14th Amendment. This one looks like it is promulgated under the Commerce Clause, and Seminole Tribe says that's not enough.
7.12.2007 3:35pm
Greg C (mail):
"Nahmias said his office issued the statement to end further distribution of the videotape and advised those who possessed it to destroy or return it."

So, if anyone who now possesses the videotape returns it, would he then also be guilty of distributing child pornography?
7.12.2007 3:42pm
scote (mail):
This is an interesting test of the interests of protecting children vs. the interests of an open trial with verifiable evidence.

Clearly we exempt certain kinds of speech, such as libel, from the normal applicable laws when filings are made in court. We exempt copyright law, allowing documents, hard drives and and videos to be copied during discovery--and by this open government law. (I wonder the extent to which that issue has been actually explored legally.) And we show jurors evidence that it would be illegal for them to posses even momentarily.

In Texas, computer forensics specialists must have a special exemption that allows them to posses the child porn they sometimes find on hard-drives during legal proceedings--a job I would hate to have. I don't know the extent to which this state exemption protects them from federal law, if at all, or to what extent the Federal law is merely overlooked.

The extent to which evidence is only available to the court during trial is the extent to which the legal system can engage in virtual secret trials. Given how important public support can be in criminal trials, for either the defense or the prosecution I can see how divisive the videos could be.

It seems that photos and videos should be included unless they are child porn. To not do so would prejudice the record to inaccurately reflect the evidence.

As to child porn or other horrific videos, should they be redacted to remove identity and illegal activity (that would make a child porn video an entirely black tape, I should think). Oh, I don't know. All I can think of is ick...
7.12.2007 3:43pm
Charge GW:
This also makes me wonder if the defendant, Wilson, is also facing possible Child Porn charges. If he made or received a copy of the video, shouldn't (or at least wouldn't) he be criminally liable for possession and/or distribution of Child Pornography.
7.12.2007 3:52pm
SC Public Defender:
In these parts its not unusual to hear from a police officer or prosecuter. "We can't provide you with a copy of the tape, pictures, hard drive as discovery"....because it would violate said federal distribution of child porn laws.
7.12.2007 3:53pm
Hattio (mail):
I totally think the charges should any come would be completely and totally unjust. But, as this is the DA's office that prosecuted Genarlow Wilson, I do hope they lose some sleep thinking about what if.
7.12.2007 3:54pm
Steve P. (mail):
But, as this is the DA's office that prosecuted Genarlow Wilson, I do hope they lose some sleep thinking about what if.

I may be misremembering, but I thought the DA's office made it clear that they consider this case a tragedy, both in what happened and the fact that they have to prosecute it.

While they do have prosecutorial discretion, the state legislature made its opinion pretty clear when they corrected the strange law, but specifically did not make it retroactive. I thought the blame came to rest there.
7.12.2007 4:03pm
scote (mail):

I totally think the charges should any come would be completely and totally unjust. But, as this is the DA's office that prosecuted Genarlow Wilson, I do hope they lose some sleep thinking about what if.

It is tough to both protect children and to avoid criminalizing sex between teenagers. However, the really ironic injustice that happened recently may be tangentially related: the case where two teenagers made porn of themselves and were prosecuted for making child pornography. That case was dumber than prosecuting someone for attempted suicide.
7.12.2007 4:08pm
Dave N (mail):
Earlier in my career as a prosecutor, I handled a truly repulsive case where a pedophile used a family's unearned trust to manufacture child pornography.

At the end of the proceedings, with all of the filth in evidence, I asked the judge to seal the evidence, which he did. On the one hand this preserved the evidence for future judicial review. On the other hand it prevented others from accessing it.

I still think that what I did was the best possible solution and I am wondering why it could not also be done in Georgia.
7.12.2007 4:11pm
scote (mail):

In these parts its not unusual to hear from a police officer or prosecuter. "We can't provide you with a copy of the tape, pictures, hard drive as discovery"....because it would violate said federal distribution of child porn laws.

One can agree with that reasoning but I would also hope that it doesn't become a slippery slope, "We can't release the tape it shows a crime," or "It's copyright" or some other routine denial.
7.12.2007 4:12pm
zooba:
Zathras:
You misunderstand Seminole Tribes and related cases. The sovereign immunity granted by the 11th amendment only extends to civil suits by individuals or non-government entities, in federal courts for money damages. Since such prosecution would be criminal, by the federal gov't immunity does not apply.
7.12.2007 4:19pm
Anderson (mail) (www):
and the fact that they have to prosecute it

Whatever. How can you even repeat such stuff without feeling contaminated by the bad faith?

EV's post raises interesting points that do not seem to me to say very much about sending the tape to *legislators* and *journalists*, which seems I-L-L-E-G-A-L.

I would however be interested in whether the legislature could subpoena the tape in the course of fact-finding.
7.12.2007 4:38pm
Wallace:
In Pennsylvania (Montgomery County, I think) the DA had to charge a paralegal employed by the DA's office with distributing child porn because the paralegal was stealing copies of evidence from child porn cases for his own use.
7.12.2007 4:42pm
TerrencePhilip:

In these parts its not unusual to hear from a police officer or prosecuter. "We can't provide you with a copy of the tape, pictures, hard drive as discovery"....because it would violate said federal distribution of child porn laws.


to which I presume your response is "Excellent! I assume you will therefore dismiss all charges against my client based on this evidence you refuse to share?"
7.12.2007 4:47pm
SC Public Defender:
TerrencePhilip,

It hasn't been a problem for me so much as a couple of people I've worked with. And they don't refuse to let you view it (at their office...thanks for nothing), they won't allow copies. They're mainly doing it to yank the proverbial chain.

The main problem I see is in the case of a hardrive, I would head to court for an order in a heartbeat if I had a situation like that come up and they continued to be intransigent. That's something I definitely need my expert to take a look at it independantly.
7.12.2007 5:39pm
Radley Balko (mail) (www):
As I understand it, McDade was distributing the tape to media and legislators in an effort to stave off public outcry over Wilson's sentence, drawing particular attention to a separate portion of the video showing Wilson having sex with a 17-year-old (which led to the rape charge for which Wilson was acquitted).

I don't think McDade should be charged with a crime. I think he should be shown the same common sense discretion he failed to show in the Wilson case.

But I do wonder if he hasn't crossed some ethical lines, both with his distribution of the tape, and in his odd contacts with the mother of Wilson's alleged victim.
7.12.2007 6:02pm
Willie (mail):
Child pornography is illegal contraband. See 18 U.S.C. § 2252(a)(4); Tex.Penal Code § 43.26; New York v. Ferber, 458 U.S. 747, 756-59, 102 S.Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982). We decline to find that Rule 16 provides such contraband can be distributed to, or copied by, the defense.
In fed ct in the 5th (the above is from U.S. v. Kimbrough), these types of cases proceed with the defense not having adequate means to examine the evidence to defend on theories such as that the images were not children, computer-generated, etc. The 5th has determined that merely turing over the evidence to the defense is distribution. Cynically, this all seems to be in the name of turing as much power over to the govt trusting that it will do the right thing. This prosecuter,saddly, has some serious issues to deal with. I feel for him as well as the guy doing 10 years.
7.12.2007 6:58pm
griftdrift (mail) (www):
I'm not a legal eagle but I can provide some background on the sordid tale of the tape.

The tape was the primary evidence in the aggravated child molestation charge. Quite simply, if there were no tape, it would have been a potentially hostile prosecution witness' word agaist Wilson's. In all likelihood, an acquittal.

Ironically, the tape was probably also the primary cause for the acquittal on the rape charge. The jury, in post trial interviews, were quite clear they could determine the 17 year old was lucid enough to give consent.

The tape story began in the last legislative session during arguments to make the change in the law retroactive so as to emcompass Genarlow Wilson. Senate President Pro Tem Eric Johnson rose in the Senate and delivered a lie-laced speech which included alluding that rape had indeed occured. A CNN reporter covering the case caught the speech on tape. He then went to D.A. McDade's office, viewed the tape, spoke to jurors and publicly pantsed Johnson for his fibbing.

Johnson continued his campaign by appearing on a local talk radio show. He admitted he had seen the tape and basically used the argument that if anyone saw the tape they would change their mind.

After questioning by myself and others Johnson admitted he had a copy of the tape and it was hand delivered to him by the D.A.s office.

When the local press finally started sniffing the story out, McDade ran behind Georgia open records law claiming he had to release the tape to anyone including the public. Conveniently though there is no record of those requests.

Did McDade violate federal porn statutes? Maybe. I think the federal prosecutor is just firing a warning shot to try to get the genie back in the bottle.

Did McDade violate Georgia Bar ethics? Maybe. If he didn't cross the line he sure did sniff it.

But I think the ultimate point is this thing got out into the public's hands and God knows how many copies are now floating around. All because a D.A. used the most inflammatory piece of evidence possible out of context to try to influence the legislature. Personally, I find that reprehensible.

As for the D.A.s office considering it all a tragedy? Yes, there's a lot of that going on down here too. Even Eric Johnson parrots the line right before once again trying to convince people Wilson was guilty of a charge on which he was acquitted.

It's kind of like that old southern karmic band-aid of saying bless your heart right before you tear someone a new one. It still doesn't make the deed any less foul.
7.12.2007 7:02pm
A Northwestern Law Student (mail):

So, if anyone who now possesses the videotape returns it, would he then also be guilty of distributing child pornography?

And if anyone who now possesses it destroys it, are they guilty of tampering with evidence (in the crime they've already committed by possession, of course)?
7.12.2007 9:12pm
Willie (mail):
NW Law Student
There are provisions under the fed child porn statute that allow a person to defend his case if he possesses fewer than a fixed number of images (I'm not sure how this applies to videos) and contacts the authorities about it. So if a person were surfing the web and accidentally came across kiddy porn, under the statute, the person is required to inform the authorities. I haven't read this recently so I am not familiar with the in's and out's of all this. These people who received the videos also ought to be consulting lawyers. The destruction thing, to me, is questionable.
7.12.2007 10:15pm
Houston Lawyer:
I remember the upset that occurred when a girl brought suit because she had secretly been taped having sex by a fraternity member. He proceeded to then show the tape to his fraternity brothers.

After the case went to the Texas Supreme Court, it was determined she didn't have a cause of action. However, one of the law firms involved was in deep trouble because they arranged showings of the tape for associates.
7.12.2007 11:56pm
Cornellian (mail):
Abovethelaw.com claims McDade has been a defendant in a sexual harassment lawsuit, Lewis et. al. v. McDade, 54 F.Supp.2d 1332 (1999), that portrays his own behavior towards women as pretty despicable.
7.13.2007 3:07am
TDPerkins (mail):
I may be misremembering, but I thought the DA's office made it clear that they consider this case a tragedy, both in what happened and the fact that they have to prosecute it.


No they do not. McDade took Genarlow's refusal to plea to the rape as an excuse to prosecute him for the oral sex, and is evidently still incensed the young man didn't roll over for him.

The information concerning Mcdade and Johnson is very interesting.

Yours, TDP, ml, msl, &pfpp

Yours, TDP, ml, msl, &pfpp
7.13.2007 10:38am
Richard Aubrey (mail):
"possession". Hell, look at anybody's spam bucket, or whatever it is that you use to dump unwanted e-mails, and you'd be able to put everybody with a computer in jail.
7.13.2007 11:26am
Mark Buehner (mail):
Doesnt Georgia have rape shield laws that come into play?
7.13.2007 11:43am
Bozoer Rebbe (mail) (www):
Child pornography, statutory rape, and abuse of authority prosecutions are cases with tremendous potential for abuse of prosecutorial discretion, as is the general area of exemption from prosecution for law enforcement personnel.

Post Nifong we will be hearing more and more about these situation.

Michigan's age of consent is 16. An 18 year old man had consensual sex with his 17 year old girlfriend and took some photographs. The photo processor turned them over to the police, and the young man was successfully prosecuted for child pornography because she was still a minor.

Prosecutors can be petulant jerks.
7.13.2007 12:08pm
T-Web:
Given how the prosecutor in this case refused to exercise any discretion to the point of vindictiveness--to this day he blames Wilson for his predicament because he would not take a plea bargain--I hope the U.S. attorney pursues this case with equal vigor.
7.13.2007 12:36pm
Chicago Guest:
It is extremely difficult to get more information about this case, but one site notes that news accounts "are leaving out the fact that the 17 year old, after passing out, was held down so all seven guys could aggressively have sex with her." One might respond that he was acquitted of the rape charge against the 17 year old (which, incidentally, is almost never mentioned in the press). However, prosecutors nail people all the time for lesser charges if they can't get them on the underlying offense. Remember Scooter Libby, who got sentenced to jail for lying, not for actually leaking anything?
7.13.2007 4:47pm
griftdrift (mail) (www):
Chicago Guest, I'm not sure what site says that but that is simply not true. The 17 year old was never unconscious nor was she restrained in any way. The worst it was ever termed was "semi-conscious" and the jury in post trial statemsnts clearly stated it was very apparent she was able to give consent. Thus the acquittal on rape.

This is EXACTLY the type of myth and meme the release of the tape has created. All fruit from McDade's poisonous tree.
7.13.2007 6:11pm
Chicago Guest:
griftdrift, is there any evidence the 17-year old - who evidently was under the influence - gave consent to have sex with 7 guys? I find the acquittal fishy, but I haven't seen the tape. However, according to news accounts, there was a move in the Georgia legislature to release Wilson. After a number of legislators saw the tape, however, they changed their minds. Clearly, whatever is on that tape is very disturbing.

Incidentally, why is Wilson not being charged with creating child pornography?
7.13.2007 6:22pm
griftdrift (mail) (www):
CG, I have not seen the tape either nor do I want to. In this case we have to rely on the jury. They were quite clear she was not coerced or restrained. If in any way she had been unable to give consent, they would have convicted on rape. They took less than an hour on that not guilty verdict. The thing to remember here is the jury is the only group of people who have seen the tape in context of all the evidence. I say they are the ones to be trusted.

There was a move to make the law retroactive. A thing to remember here is the legislature was nearly unanimous changing the law the previous year. However after this tape got into the hands of the legislators suddenly there was fierce opposition to making it retroactive. A lot of people changed their minds on this and the only question is how did the tape influence them. Apparently the Senate President Pro Tem was holding viewings in his office.

The question of why not charge for child pornography is an interesting one. I've looked at the statute and I believe a charge could have been brought. However, it would have been pretty difficult to prove against Wilson specifically. It wasn't his video camera and he was directly involved in filming it other than as a participant. Throw in that everyone involved were minors, to my knowledge a case like that has never been prosecuted, and you have all kinds of legal and philosophical questions.

My personal belief is the prosecutor either didn't consider pornagraphy charges or didn't think he could get a conviction.
7.13.2007 7:06pm
griftdrift (mail) (www):
Should have been "wasn't directly involved in filming".
7.13.2007 7:07pm
scote (mail):

This is EXACTLY the type of myth and meme the release of the tape has created. All fruit from McDade's poisonous tree.

Quite the opposite. If the tape had been widely disseminated then people could see for themselves and written claims could be more easily dismissed. In this case the reason for the arguments over what is on the tape is because of the people who haven't seen it and must rely on the characterizations of others.
7.13.2007 8:51pm
griftdrift (mail) (www):
And that is the problem scote. Those who have seen the tape are selectively charaterizing what they have seen. To quote a legislator, "depsite what you have heard this is no case of star-crossed lovers".

I have been inundated for the past five months with a dozen different versions of "if only you saw the tape you would think differently". Which is exactly why the people, the jury, who saw the tape in context of all the evidence should have their statements be considered with the most authority.

The tape is the very definition of inflammatory evidence.
7.14.2007 1:33am