This is the resolution of an interlocutory appeal taken by defendant after the trial court denied his motion to dismiss his indictment for due process and fair trial violations. It warrants a post here because the subject matter concerns defense request for discovery of the actual images themselves. A recurring theme in State courts and an all but dead issue in Federal Courts.
Defendant was indicted in November 2008 for 45 counts of sexual exploitation of children (possession of movies and images). In January of 2009 he filed a discovery motion for the State to provide him with a copy of all the “seized media,” and a motion to dismiss for constitutional violations. His argument was that federal law criminalized his defense-related conduct (possession of child pornography) so he anticipated he could not prepare for trial in the same way as the State. There is a bizarre 2 year gap where nothing seems to happen in this case, and the next thing we see is a defense motion in July 2011 for a protective order requesting copies of all the contraband material (hard drives with images). The defense claimed they could not properly review the evidence at either the Georgia Bureau of Investigation or the District Attorneys Office because “the government computers may not have the necessary software or updates…[and] may not have tools available that are critical to his expert’s analysis.” Defense argued that the State refused to provide copies of the contraband, which precluded him from preparing for trial. His other argument for dismissal was that Georgia Statute and 18 U.S.C. 3509(m) (Adam Walsh Act) deprived him of his due process rights to an adequate defense. This motion was denied in September 2011. Apparently another hearing on this issue took place in March 2012 where the court reversed its previous denial and agreed with the defense that requiring the defense expert to conduct his review at the DA’s Office would infringe on defense trial preparation.
The Judge went on to say that the Georgia Statute prohibiting possession of child pornography was unconstitutional as applied to the Defendant in this case (for trial preparation) because it deprived him of his due process rights to have an expert examine the evidence and prepare a defense. The judge ordered the parties to agree to a protective order. The order, in essence required the State to acknowledge that the defense actions in possessing these images would not be a violation of any Georgia state criminal statute. Moreover, this agreement required the United States (read: The Feds) to provide assurances that it would not be a violation of federal statute, civil or criminal, including those statutes regulating child pornography. No US Attorney provided these assurances, and defendant filed a motion to dismiss based on due process and fairness grounds. The trial court denied the motion.
Here on interlocutory appeal, defendant contends the trial court erred in denying the motion to dismiss. His argument is that even though the trial judge ordered the State to turn over the evidence (via the protective order) he could not access it because he never got assurances from the feds that he wouldn’t be prosecuted for possession of the child pornography. The appeals court found that the defendant was not denied access to the materials and that the “trial judge had no authority over the United States Attorneys regarding their prosecutorial discretion. Reaves v. State, 284 Ga. 181, 189(3).
Practitioner Note: Defense Counsel continue to argue for independent copies of child sexual abuse images for trial preparation instead of reviewing them at Government Offices. This is normally easily rid of in Federal Court via the Adam Walsh Act (unless the Government obstructs ample defense opportunity to review the evidence). This issue is not as easily resolved in State Courts. We have seen some success with State Prosecutors informing the court at the evidentiary hearing that turning over the images to the defense cannot preclude the Feds from filing additional charges, as there is no “trial preparation” exception to the Adam Walsh Act.