Story is here.

When possession is conceded, the defense will be that the receiving of the child pornography was accidental. In U.S. v. Miller (2008), the Third Circuit set forth an excellent review of the legal and factual analysis involved in determining if the knowing element exists. Unfortunately for Mr. Miller, it seems like his defense did not include a complete analysis of all of the facts. In Miller, the Court said:

The evidence required to establish the intent-element of § 2252A(a)(2) may be greater than that required to establish the intent-element of § 2252A(a)(5)(B) because, while a person who

“knowingly receives” child pornography will necessarily “knowingly possess” child pornography, the obverse is not the case. Cf. United States v. Myers, 355 F.3d 1040, 1042 (7th Cir. 2004) (upholding sentencing calculation for defendant who received videos and computer-generated image files

depicting minors engaged in sexually explicit conduct, in violation of § 2252). In Myers, the court observed that “a person who seeks out only adult pornography, but without his knowledge is sent a mix of adult and child pornography,” could not be found guilty of knowingly receiving child pornography.

Id. “That same person, however, could be in violation of the possession provision of § 2252(a)(4)(B) if he or she decides to retain that material, thereby knowingly possessing it.” Id. It follows that the quantum of evidence required to prove knowing receipt of a downloaded file may, in some situations, be greater than that minimally required to prove knowing possession of the file.

More difficult is the question whether Miller received the images knowingly. Other courts, confronting this question, have deemed at least four factors relevant to this inquiry: (1) whether images were found on the defendant’s computer, see United States v. Irving, 452 F.3d 110, 122 (2d Cir. 2006); (2) the

number of images of child pornography that were found, see id. (finding defendant’s possession of 76 images relevant); (3) whether the content of the images “was evident from their file names,” United States v. Payne, 341 F.3d 393, 403 (5th Cir. 2003) (finding “number of images in [defendant’s] possession, taken together with the suggestive titles of the photographs” established knowing receipt); and (4) defendant’s knowledge of and ability to access the storage area for the images, see Romm, 455 F.3d at 997-1001 (addressing defendant’s ability to access cache files in hidden subdirectory); cf. Kuchinski, 469 F.3d at 861-63 (same).

We summarize the evidence bearing on these four factors:

(1) The government adduced no direct, forensic evidence that the images were downloaded onto Miller’s computer. Agent Kyle testified that it was his “educated guess” that Miller downloaded the images onto the zip disk via the Internet, perhaps by trading them in a chat room or by searching for them on a website. However, Agent Kyle went on to testify, the government had no proof from Miller’s hard drive that supported this hypothesis. Agent Price, on cross-examination, acknowledged that, despite the FBI’s use of forensic software designed to recover deleted material from hard drives, the FBI had discovered no evidence that Miller’s computer had been used to upload or download child pornography.

Agent Price further testified that there was no evidence that Miller ever used search engines to locate child pornography websites, or that such websites had ever been visited from Miller’s computer (the

FBI’s investigation did reveal, however, that two websites containing adult pornography had been visited from the computer). Agent Price also acknowledged that there was no evidence that Miller ever participated in email exchanges or online chat rooms that pertained to child pornography. Finally,

Price acknowledged that there was no evidence that Miller used a “wiping” or “eliminator” program to clear his hard drive of evidence that files had been downloaded. A. 296-97.

(2) The second factor, the number of images of child pornography found, likewise does not weigh in the government’s favor in light of the overwhelming number of adult images that were found. The government presented evidence pertaining to only twenty of the 1200-1400 images found on the zip disk, and the District Court subsequently determined, in the process of sentencing Miller, that only eleven of these images constituted child pornography. Miller contended that he was unaware of the existence of these images and, significantly, Miller volunteered the password of the zip disk to Agent Kyle, cautioning him that the disk contained pornography. Miller also presented evidence that 586 of the images were copied onto the disk at periodic intervals over a seven-hour period, suggesting that they were not individually viewed when they were being copied. Agent Price’s rebuttal to this suggestion was that Miller may have first downloaded the images onto his hard drive, or that of another computer, before copying them onto the disk. This possibility puts sharp light, however, on the facts that no forensic evidence of child pornography was found on Miller’s hard drive, and that there was no evidence adduced that another computer may have been used to download the images.

(3) Nor does the third factor, whether the content of the images “was evident from their file names,” weigh in the government’s favor. Several of the images were embedded with the names of websites that possibly advertised child pornography, but — according to Agent Kyle’s and Smith’s testimony — this does not suggest that the images were obtained from those websites. Moreover, these website names would not be seen unless a person opened and viewed the files. While there is strong evidence that Miller eventually came to view some of the images of child pornography that were on the disk, and thus to knowingly possess the images, this evidence does not lend much support to the inference that Miller knowingly downloaded the images.

(4) Turning to the fourth factor, whether the defendant had knowledge of and an ability to access the storage space for the images, it is clear that Miller had access to the images on the zip disk. Indeed, Miller admitted to storing image files, including adult pornography, on the disk. In this respect, the facts of this case are more akin to the facts of Romm, 455 F.3d at 997-1001, where the court found that the defendant’s knowledge that he could access cache files supported the inference that he knowingly possessed the files, than to the facts of Kuchinski, 469 F.3d 853, 861-63, where the court rejected this inference because the defendant was unaware of, “and concomitantly lack[ed] access to and control over the existence of the files.” In contrast to the facts before us, however, the defendant in Romm had stored images of child pornography on the hard drive of his computer, albeit in a subdirectory that was difficult for a typical computer user to access. The Romm court acknowledged that “[n]o doubt, images could be saved to the cache when a defendant accidentally views the images, as through the occurrence of a ‘pop-up,’ for instance.” 455 F.3d at 1000. However, the court concluded that this “[wa]s not the case” in Romm’s circumstance: “By his own admission . . . , Romm repeatedly sought out child pornography over the internet. When he found images he “liked,” he would “view them, save them to his computer, look at them for about five minutes [ ] and then delete them.” Id. By contrast, Miller has consistently denied that he knowingly viewed or had any interest in viewing child pornography.

 -So, you would think that Miller was out of the woods right? Not quite. I really hate to blame his attorney but I have to. His lawyer did not account for all of the facts of the case and did not appear to have really gone though the hard drive to address all of the issues. The Court went on to say that:

 “Beyond the facts relevant to these four factors, however, the evidence presents a fifth factor that may support the jury’s determination: the number of occasions that the images were copied onto the zip disk. Smith testified that the images copied onto the zip disk on October 13, 2002, were likely transferred automatically. However, images of child pornography were also copied onto the disk on subsequent dates. Specifically, according to their dates created, the eleven images that the District Court determined to actually be child pornography were copied to the zip disk on October 13, October 29, December 17, and December 20, 2002. A reasonable juror might have concluded, from this evidence, that Miller copied the images on more than one occasion.”

 -Admittedly, I don’t have all of the facts in front of me but what is Miller’s witness doing testifying to one thing when the facts show another? It seems like Miller’s lawyer did not address this issue in anyway. A lawyer must first identify all of the bad facts and then determine which are facts beyond change. If the defense cannot attack the dates then the defense must incorporate the different dates on the drive. If it doesn’t, than it is sure to fail. 

In this case, David Raymond N. Cegla of Bedminster has been charged with attempted sexual assault, endangering the welfare of a minor by engaging in sexually explicit dialogue and of endangering the welfare of a minor by distributing child pornography and by possession of child pornography.  He faces up to  20 years if convicted on all charges.  The BCPO reports that he is employed as  an information technology manager at JP Morgan Chase in the Whippany.  So, he has the money for a good attorney.  Hopefully for his sake, he gets one.

Story is here.

I’m sorry, but I don’t buy the argument from the State.  The State’s job is to make the defense’s job as difficult as possible.  Justice be damned.  That is all it is about.  I doubt any defense attorneys really need to see this child porn any more than it is necessary.  However, there is a need to view this in a professional manner away from the prying eyes of the State so that you can defend your client.  Thankfully, it is finally permitted.  Maybe some of these cases will actually go to trial. 

Story is here.

For those few that do no confess, a three flat may not be all that it is cracked up to be.  A good attorney should be able to secure a five flat if the defendant is convicted at trial.  However, even a seven flat is not that big of a difference from a three flat.  A few extra months in prison may not be worth throwing away all of your rights and your life.  Without a confession, these cases are ripe for a good defense attorney to have fun with.  However, the chances of a defendant who has not confessed finding a good defense attorney and having the money to pay him or her is a rather rare occurrence.  As a result, these pleas will just keep coming without the State’s case being tested.

As a side note, the DAG’s that handle these cases are some of the nicest and most professional prosecutors you could ever hope to meet.

TRENTON – Attorney General Anne Milgram announced that a Passaic County man was sentenced to state prison today after pleading guilty to distributing child pornography on the Internet. The defendant was among more than three dozen people arrested in October 2007 as part of “Operation Silent Shield,” an investigation that targeted offenders who distributed known images and videos of child pornography via the Internet.

According to Criminal Justice Director Deborah L. Gramiccioni, Kevin Scully, 21, of North Haledon, was ordered by Superior Court Judge Joseph A. Portelli in Passaic County to serve three years in state prison. Scully was also ordered to register under Megan’s Law. The sentence was based on Scully’s March 16 guilty plea to endangering the welfare of a minor (distribution of child pornography).

In pleading guilty before Superior Court Judge Philip H. Mizzone, Jr. in Passaic County, Scully admitted that between July 24 and Sept. 24, 2007, he knowingly used Internet file sharing software to make multiple videos and photographs containing child pornography readily available for any other user to see and/or download from a designated “shared folder” on his computer. On July 24, 2007, one of those videos was actually downloaded by an undercover detective from the Internet Crimes Against Children Task Force of the New Jersey State Police.

On Sept. 24, 2007, members of the New Jersey State Police executed a search warrant at Scully’s home. The search revealed at least 26 movie clips containing child pornography.

The Digital Technology Investigation Unit of the New Jersey State Police coordinated the investigation. Deputy Attorney General Lee D. Schaer prosecuted the case and represented the Division of Criminal Justice at the guilty plea hearing.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3682-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

NEIL COHEN,

Defendant-Respondent.

_______________________________________________________________

Argued June 1, 2009 – Decided

Before Judges Carchman, R. B. Coleman

and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Mercer County,

Indictment No. SGJ568-08-5.

Anthony A. Picione, Deputy Attorney General,

argued the cause for appellant (Anne Milgram,

Attorney General, attorney; Mr. Picione and

Robert C. Rowbotham, II, Deputy Attorney

Generals, of counsel; Johanna Barba Jones,

Deputy Attorney General, on the brief).

Mark H. Tuohey, III (Vinson & Elkins) of the District

of Columbia bar, admitted pro hac vice, argued the

cause for respondent (Rogut McCarthy and Mr. Tuohey,

attorneys; Mr. Tuohey, Andrea L. Surratt (Vinson &

Elkins) of the District of Columbia bar, admitted pro

hac vice, Daniel J. McCarthy and Colleen E. Patterson,

of counsel and on the brief).

Gibbons P.C., attorneys for amicus curiae Association

of Criminal Defense Lawyers of New Jersey (Lawrence S.

Lustberg, on the brief).

July 2, 2009

2

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PER CURIAM

This appeal requires us to balance the competing interests

of a criminal defendant who seeks discovery of materials that go

to the essence of the underlying charged offenses, with the

public interest in prohibiting the dissemination of the same

materials — contraband child pornography. The trial judge

fashioned a protective order that, by its terms, provided for

defendant’s discovery of the relevant materials but established

strict guidelines that limited access and use of the materials.

We conclude that while the State of New Jersey’s concerns focus

on the possibility of misuse of the materials, the judge’s order

recognizes these concerns and establishes procedures to minimize

such eventuality. Accordingly, we conclude that defendant is

entitled to discovery under the terms of the protective order

and affirm.

By leave granted, the State appeals from the protective

order permitting defendant Neil Cohen discovery of the alleged

child pornography that provides the underpinnings for the

criminal charges lodged against him. While the State does not

dispute that defendant is entitled to discovery of such

evidence, it challenges the manner and methodology of

transmission and examination of the purported evidence.

3

A-3682-08T4

In the carefully crafted protective order of March 23,

2009, Judge Council balanced the protected rights of a defendant

to discovery under Rule 3:13-3 with the legitimate policy of

minimizing the dissemination of child pornography to ensure that

the victims of such unlawful conduct are not re-victimized

through court-sanctioned access. Since both the State and

defendant agree that the defense is entitled to inspection and

testing of the discoverable materials, the sole issue in dispute

is which party maintains control of the discovery while it is

being reviewed and tested by the defense. The State is willing

to make the materials available to defendant but asserts that it

must retain ultimate control, even during the discovery process,

to minimize the possible improper dissemination of child

pornography. Defendant claims that the order addressed the

State’s concerns and the defense should control the discovery

during the pendency of the case.

We briefly set forth the relevant facts informing our

consideration of the issues. In July 2008, New Jersey State

Police began investigating allegations that defendant, a former

State Assemblyman, had used his office computer to view child

pornography. Within a month, the police seized suspected

pornographic matter, including eleven computers from defendant’s

legislative office, and commenced a forensic examination of the

4

A-3682-08T4

contents of the computer hard drives. The investigation and

examination sought to determine whether defendant had been

visiting child pornography sites. As part of their

investigation, officers entered web sites for child pornography

that had been accessed through the confiscated computers. The

investigation continued, and sixty-two images were transmitted

to and reviewed by the State’s expert, Dr. Robert L. Johnson.

On December 17, 2008, defendant was indicted by the State

Grand Jury for second-degree official misconduct, N.J.S.A.

2C:30-2; second-degree endangering the welfare of a child

(reproducing child pornography), N.J.S.A. 2C:24-4(b)(4); seconddegree

endangering the welfare of a child (disseminating child

pornography), N.J.S.A. 2C:24-4(b)(5)(a); and fourth-degree

endangering the welfare of a child (possessing child

pornography), N.J.S.A. 2C:24-4(b)(5)(b).

Discovery commenced, and on March 10, 2009, the judge

ordered the State to produce copies of all the computer images

and data obtained during the investigation. The State moved for

reconsideration and for a stay. On March 23, 2009, the judge

denied the State’s motions, but granted an extension for

production of the images until April 2, 2009. The judge also

entered a protective order, which included detailed provisions

and safeguards for the defense’s handling of the computer images

5

A-3682-08T4

and data. Included were limitations on those having access to

the materials and further provisions regarding access during the

discovery process.

The order contains thirteen decretal paragraphs.

summarize, the order requires the State to provide two copies of

the computer images and data to defense counsel and that such

material not be “copied, reproduced, distributed, disseminated,

electronically stored and/or electronically uploaded or

downloaded” or used for any purpose other than the prosecution

or defense of this action. The defense must use a dedicated,

non-networked computer to view the materials and keep the

materials and the computer locked and secure when not in use.

The materials must be conveyed to and among defense counsel and

defense experts by hand-to-hand delivery, and at the conclusion

of the matter, the materials be transferred back to the State in

the same manner. Anyone viewing the materials on behalf of the

defense would be subject to and furnished with the order, and

any retainer agreement between defense counsel and their experts

would include a provision certifying that the expert

acknowledges the terms of the order. Defendant would not be

permitted to view the materials outside the presence of defense

counsel. Finally, at the conclusion of the matter, the parties

1 To

1

6

A copy of the order is attached to this opinion as Appendix A.A-3682-08T4

are to agree on specific procedures to ensure that the materials

are completely and irretrievably deleted from any computers on

which the materials were viewed.

The State, thereafter, moved for leave to appeal and for a

stay pending the outcome of the interlocutory appeal. We

granted both motions and ordered the appeal accelerated. On

April 23, 2009, while the appeal was pending, the State offered

to have

a representative bring the contraband to

defense counsel and/or their representatives

to view at their offices, but on a Stateowned

computer that could be sanitized

afterward. Both the images and the computer

would be retained by the State except when

being actually viewed.

That offer remains extant.

On appeal, the State raises two issues

err by ordering the State to reproduce and deliver the evidence

of child pornography to defendant; and 2) was the court’s

protective order sufficient to ensure that the child pornography

would not be disseminated.

I.

As we noted, the focus of the State’s primary argument is

that the court erred by ordering it to deliver images of child

2: 1) did the court

2

granting leave to appeal and the stay.

7

The State raised two other points that are rendered moot by ourA-3682-08T4

pornography to the defense. The argument is premised on the

theory that if the images are released to the defense, the State

can no longer be assured that the images will not be illegally

reproduced and disseminated, which would cause harm to any child

depicted in the pornography.

Rule 3:13-3(c) provides in part:

Discovery by the Defendant. The prosecutor

shall permit defendant to inspect and copy

or photograph the following relevant

material if not given as part of the

discovery package under section (b):

(1) books, tangible objects, papers or

documents obtained from or belonging to the

defendant;

. . . .

(3) results or reports of physical or mental

examinations and of scientific tests or

experiments made in connection with the

matter or copies thereof, which are within

the possession, custody, or control of the

prosecutor;

. . . .

(5) books, papers, documents, or copies

thereof, or tangible objects, buildings or

places which are within the possession,

custody or control of the prosecutor;

Rule 3:13-3(f) permits the court to issue a protective order,

which denies, restricts or defers inspection of certain evidence

so as to protect witnesses and others from harm or threats of

harm. Rule 3:13-3 does not contain a specific restriction for

8

A-3682-08T4

disclosure of child pornography; however, the comment to Rule

3:13-3(f) provides examples of when discovery may be restricted,

including: the identity of confidential informants;

surveillance sites; parole records; school records; and even, to

certain extents, instances when a claim of privilege will be

waived at trial. Pressler, Current N.J. Court Rules, comment 6

on R. 3:13-3(f) (2009).

We have invoked the protective provisions of Rule 3:13-

3(f), when circumstances warrant such limitation on discovery.

In State v. Cusick, 219 N.J. Super. 452, 455-59 (App. Div.),

certif. denied, 109 N.J. 54 (1987), we affirmed the denial of

release of confidential DYFS records of a child victim of sexual

abuse, which the defendant claimed he needed to prepare a

defense. The trial court found that the records were

confidential, that disclosure was not necessary for resolution

of any issue in the case and that most of the information was

available from other sources. Id. at 457. We balanced the

defendant’s discovery needs against the public policy of keeping

DYFS records confidential and found that disclosure was not

necessary. Id. at 459.

Similarly, in State v. Krivacska, 341 N.J. Super. 1, 35

(App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied,

535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002), we

9

A-3682-08T4

restricted access of the defendant to the school records of a

child victim of sexual abuse, stating that it was sufficient for

the judge to view the records in camera. We noted that when

restricting discovery, a court must perform a balancing test to

determine whether the needs of the defendant to prepare a

defense outweigh the victim’s right to privacy. Ibid.

Two critical distinctions are apparent in Krivacska and

Cusick. In those cases, the defendants were denied discovery of

confidential material, whereas here, the State agreed to provide

access to the evidence so long as it is viewed while under the

control of the State. More important, however, the restricted

discovery in Krivacska and Cusick did not form the basis of the

complaint against the defendants and were not proofs anticipated

to be presented by the State at trial. Here, the discoverable

material sought by defendant is the critical evidence supporting

the allegations of the criminal charges.

The Court has demonstrated a keen sensitivity to protect

child victims involved in court proceedings. For example, in

preserving the anonymity of children who testified regarding

sexual abuse, our Supreme Court recognized that “protection of

the children’s physical and psychological welfare constitutes a

compelling state interest.” Application of VV Pub. Corp., 120

N.J. 508, 512-13 (1990) (internal quotations omitted); see also

10

A-3682-08T4

N.J.S.A. 2A:82-46. A similar state interest is present here,

and no one can legitimately question the long-term detrimental

effects of child pornography on the victims. New York v.

Ferber, 458 U.S. 747, 760 n.10, 102 S. Ct. 3348, 3356 n.10, 73

L. Ed. 2d 1113, 1125 n.10 (1982) (stating that the threat to a

victim of child pornography is even greater than the threat of

sexual abuse or prostitution, because the “child’s actions are

reduced to a recording” and the child “must go through life

knowing that the recording is circulating within the mass

distribution system for child pornography”).

Relying on this unassailable premise, the State argues that

child pornography is contraband, and any dissemination of it,

even in discovery, is presumptively illegal. Recognizing that

there must be an accommodation for discovery, the State contends

that the court should only provide access to the images at a

State facility or on a State-issued computer, where the State

would maintain control over the pornography and eliminate any

risk that the images would be disseminated to unauthorized third

parties or to the public.

Defendant responds that his ability to prepare a defense

will be severely impeded by not having total access to the

materials. He asserts that there are numerous CDs, DVDs and

hard drives containing a voluminous amount of material created

11

A-3682-08T4

by government agents in the discovery phase of this litigation.

He argues that the defense must have unfettered access to the

images in order to evaluate them and resolve such questions as

who created the images, when were they accessed, whether they

are in fact pornography and whether the images are of real

children, as opposed to virtual images or adults dressed as

children. Defendant explains that the process by which an

expert analyzes and evaluates the images requires equipment,

software and an entire forensics laboratory, which would be

impractical for defendant to import to a State facility.

Defendant also contends that his counsel and experts need

continuous access to discovery in preparing for trial and during

the trial itself. Moreover, defendant represents that the

expert he has chosen is out-of-state and cannot be required to

come to New Jersey each time it is necessary to view the images.

3

No reported New Jersey authority has considered the issue

of the discovery of child pornography, but other jurisdictions,

including the federal courts and Congress, have addressed the

question.

3

extend to an out-of-state expert in his or her office, or to

defendant’s out-of-state counsel. At oral argument, defendant

suggested that he is considering retention of a local expert.

12

It is unclear whether the State’s offer of a computer wouldA-3682-08T4

In 2006, Congress enacted the Adam Walsh Child Protection

and Safety Act of 2006, (the Act), Pub. L. No. 109-248, §

501(1)(B), 120 Stat. 587, 623 (2006). The purpose of section

504 of the Act is to amend 18 U.S.C.A. § 3509 by adding

subsection (m), which prevents the unauthorized release and

redistribution of child pornography that the government has

gathered for use in a criminal trial. 18 U.S.C.A. § 3509(m)

provides:

Prohibition on reproduction of child

pornography.

(1) In any 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.

(2)(A) Notwithstanding Rule 16 of the

Federal Rules of Criminal Procedure, a court

shall deny, in any criminal proceeding, any

request by the defendant to copy,

photograph, duplicate, or otherwise

reproduce any property or material that

constitutes child pornography . . . so long

as the Government makes the property or

material reasonably available to the

defendant.

(B) For the purposes of subparagraph (A),

property or material shall be deemed to be

reasonably available to the defendant if the

Government provides ample opportunity for

inspection, viewing, and examination at a

Government facility of the property or

material by the defendant, his or her

attorney, and any individual the defendant

may seek to qualify to furnish expert

testimony at trial.

13

A-3682-08T4

The constitutionality of the Act has been upheld in United

States v. Shrake, 515 F.3d 743, 745-46 (7th Cir. 2008), and

United States v. Johnson, 456 F. Supp. 2d 1016, 1019 (N.D. Iowa

2006) (holding that the Act is constitutional, because it

restricts who may control the images but not what the defendant

may introduce at trial). However, courts have been indulgent in

permitting defendants access to materials when restrictions also

preclude or significantly burden a defendant’s ability to mount

a defense. In at least one federal case, the court has

interpreted the “ample opportunity” requirement of the Act to

permit disclosure of the evidence when a defendant established

that analysis of the material at a government facility would

compromise the expert’s effectiveness. See United States v.

Knellinger, 471 F. Supp. 2d 640, 647 (E.D. Va. 2007).

The State’s expressed concern about the propriety of

dissemination of the alleged child pornography to defendant,

citing the limitations expressed in the Act, warrants further

discussion. We first note that the Act is not authoritative for

state criminal proceedings. State ex rel. Tuller v. Crawford,

211 S.W.3d 676, 679 (Mo. Ct. App. 2007) (noting that 18 U.S.C.A.

§ 3509(m) is a procedural provision solely applicable to

proceedings in the federal court). Moreover, when the question

has arisen in state courts as to whether the defense counsel,

14

A-3682-08T4

when possessing child pornography in connection with preparing a

defense, could be prosecuted for violation of the Act, the

courts have held that the Act did not permit such prosecution.

State v. Allen, No. E2007-01018-CCA-R3-CD, 2009 Tenn. Crim. App.

LEXIS 114 at 17-18 (Tenn. Crim. App. Feb. 12, 2009)

Brady, 894 N.E.2d 671, 679 (Ohio 2008) (holding that the Act

allowed for ample opportunity for inspection by a defense

expert), cert. denied, 2009 U.S. LEXIS 3564, 77 U.S.L.W. 3633

(U.S. May 18, 2009) (No. 08-9139). We agree that the exercise

of rights of discovery, critical rights afforded to a criminal

defendant, see State v. Broom-Smith, 406 N.J. Super. 228, 239

(App. Div. 2009); State v. Gilchrest, 381 N.J. Super. 138, 146-

47 (App. Div. 2005), cannot give rise to a criminal offense of

improper possession when appropriate use of the materials is

sanctioned by court rule or an order of a court.

Prior to passage of the Act, some federal courts had

already denied defendants copies of child pornography evidence,

stating that it was contraband. In United States v. Kimbrough,

69 F.3d 723, 731 (5th Cir. 1995), cert. denied, 517 U.S. 1157,

116 S. Ct. 1547, 134 L. Ed. 2d 650 (1996), the court held that

child pornography is “illegal contraband,” which should not be

4; State v.

4

purposes only. R. 1:36-3.

15

This decision is unpublished and we cite it for informationalA-3682-08T4

copied or distributed in discovery. Moreover, the defendant’s

ability to inspect the evidence at government offices was

sufficient to protect his rights. Ibid. The Fifth Circuit

Court of Appeals rejected the defendant’s argument that the

quantity of material, and the defendant’s not having a copy of

it, prejudiced his ability to make an adequate defense. The

court stated that the defendant’s need for substantial time to

view the material was irrelevant and did not establish

prejudice. Ibid.

The Eighth Circuit Court of Appeals, in United States v.

Horn, 187 F.3d 781, 792 (8th Cir. 1999), cert. denied, 529 U.S.

1029, 120 S. Ct. 1442, 146 L. Ed. 2d 330 (2000), affirmed the

district court’s denial of a copy of a videotape to the

defendant, because it was “prima facie contraband.” On appeal,

however, the defendant argued for the first time that he needed

the copy so that the publisher of the film could ascertain the

ages of the children. The court stated that had defendant

advanced that argument at trial, the court might have been

required to grant the defendant’s motion for the material to be

copied. Id. at 792-93.

In United States v. Husband, 246 F. Supp. 2d 467, 468-69

(E.D. Va. 2003), the court relied on Kimbrough and Horn in

finding that a videotape was contraband and therefore did not

16

A-3682-08T4

require that copies be made. However, Husband involved only one

videotape as opposed to potentially thousands of images that

might exist in a case involving computer digital images.

Notwithstanding the Act and the limited federal decisions

restricting discovery, the majority of state courts that have

addressed this issue have required the prosecution to reproduce

the materials for defendant’s use and control.

In Westerfield v. Superior Court, 121 Cal. Rptr. 2d 402,

403 (Cal. Ct. App. 2002), the prosecution restricted discovery

by permitting the defendant to view the images only in the

presence of law enforcement officers in the FBI’s offices and

had refused to make copies of the child pornography. The

defendant moved to permit copying of the images so that his

attorneys could view them privately, to speak confidentially

about them and to submit them for examination by experts. The

trial court denied the defendant’s motion, noting that the

prosecution permitted defense counsel’s unfettered access to the

images and removal of law enforcement from the room while the

images were being examined. On appeal, the court stated that

nothing in the child pornography statute supported the view that

the California Legislature intended that use of the images to

prepare a defense would qualify as disseminating the material in

violation of the law. Id. at 404.

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The Westerfield court also found that the prosecution’s

interpretation of the statute not only “exalts absurdity over

common sense, but it is also logically flawed.” Ibid.

Requiring defense counsel to view thousands of images and commit

them to memory impeded the effective assistance of counsel. Id.

at 405.

In Cervantes v. Arizona, 76 P.3d 449, 454-55 (Ariz. Ct.

App. 2003), review denied, 2004 Ariz. LEXIS 32 (Ariz. Mar. 16,

2004), the Arizona Court of Appeals rejected a restriction on

alleged child pornography images being viewed only at a state

facility. Instead, it ordered their release to the defendant

because the discovery rules did not contain an exception when

the evidence sought was contraband, and the State had not

demonstrated why the court should impose a restriction. If a

court decided to restrict viewing of evidence, the Arizona rules

required imposing the “less restrictive alternative.” The court

stated that a protective order would have been less restrictive

than requiring defense counsel to view the evidence at the state

facility. Id. at 456. The Arizona court distinguished Horn,

Kimbrough and Husband, as those cases involved a determination

as to whether any error that occurred had been harmless, and in

at least one instance, the State had permitted the defense

counsel to view the material in his office. The court opined

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that by holding that contraband could not be distributed for

purposes of preparing a defense, those courts had misstated the

rule. Id. at 455-56. The court concluded that where there was

no evidence that defense counsel would use the materials

improperly, the materials must be reproduced. Id. at 457.

In Washington v. Boyd, 158 P.3d 54, 59 (Wash. 2007), the

Washington Supreme Court clarified that

the burden is on the State to establish, not

merely claim or allege, the need for

appropriate restrictions. The defendant

does not have to establish that effective

representation merits a copy of the very

evidence supporting the crime charged.

In Boyd, the court advocated the use of protective orders

to safeguard the interests of the victims. Id. at 62. Some of

the limitations the court addressed to protect the victims were:

that the defendant may only view the material under defense

counsel’s supervision; that defense counsel is obligated to be

personally and professionally responsible for any unauthorized

distributions of or access to the evidence; that access by noncounsel

should be preceded by court order; that evidence must be

secured and inaccessible to anyone other than defense counsel;

that evidence has to be promptly returned at the end of the

criminal proceeding; that access to the material may only be for

purposes of defending the action; that a “firewall” must be

erected between the Internet and any computer used to access the

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materials; and that the computer should be cleared of evidence

or its traces before being made accessible for other purposes.

Ibid.

The court in Boyd noted that allowing the defendant copies

of the evidence made sense, because the materials would “be

presented in open court, referenced in the examination and

testimony of witnesses, and discussed in opening and closing

statements.” Ibid. The court stated that “[e]ven if the right

to a fair trial could be satisfied while denying copies only to

the defense, the cost to justice [under such a scheme] would be

disproportionate to the benefit.” Id. at 63. But see

State v. Ross, 792 So. 2d 699, 702 (Fla. Dist. Ct. App. 2001)

(relying on Kimbrough and finding no prejudice to defendant to

review the materials at a state facility).

The State urges that we adopt the principles enunciated in

the Act to inform our determination of whether to require that

the images be copied for defendant. The State contends that it

is not seeking to compromise defendant’s ability to formulate a

defense, but rather is requesting a protective order that

maintains the images in the custody of the State.

Defendant argues that the requirement that defendant’s

experts view the images at a State facility impinges upon

defendant’s right to utilize a defense expert whose identity is

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not yet disclosed to the State. In support of this, defendant

cites State v. Mingo, 77 N.J. 576, 584-87 (1978), wherein the

Court observed that communication with an expert is an essential

aspect of the preparation of a defense and is protected by the

attorney-client and work-product privileges. Disclosure of the

identity of an expert should not be compelled unless that expert

is going to be a trial witness. Id. at 587; see R. 3:13-

3(d)(3).

We are of the view that requiring a defense expert to

appear at the State facility would interfere with defendant’s

privilege, because, even if safeguards are employed, there is a

substantial probability that the identity of the expert will

prematurely become known to the State. Even the State’s belated

offer of a computer raises similar concerns if the State

representative is required to bring the computer to the expert’s

laboratory.

We find compelling defendant’s argument that his defense

would be impeded by having to “import” the expert’s laboratory

to the government facility. The State contends that only sixtytwo

images have been forwarded to the State’s expert for

analysis. However, defendant correctly counters that thousands

of images were viewed from websites accessed by law enforcement

agents as part of the discovery in this litigation. In

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addition, there is apparently no clarity regarding the ages of

the individuals in the images or whether the images were virtual

or depicted real people. The expert may have to perform a

lengthy analysis to determine whether the images are child

pornography and when the images were viewed. Such a process

could be cumbersome, if not impossible, for defendant’s expert,

if required to perform this analysis at the State facility.

Further, the State’s offer to provide a computer at the office

of “defense counsel and/or their representatives” does not solve

the problem but raises new ones.

The reasoning in Boyd is persuasive. Because ultimately

the materials will be presented in court

preclude defendant from having copies of them to aid his counsel

and experts in preparing his defense. Significantly, the expert

analysis may prove to be ongoing, as the pretrial and final

phases of this matter develop, and particularly as video and

images and contested issues become a matter of adversarial

judicial focus. Although the State has offered to supply access

to the images on an “as-needed” basis, that is too cumbersome.

In addition, the State itself will have continuous and

5, it is unfair to

5

other materials would be required at trial. We do not decide

here the issue of the manner and procedures to be utilized for

display or use of the materials at trial.

22

At oral argument, the State acknowledged that the images andA-3682-08T4

unfettered access to the materials. Under our rules, the

defense is entitled to equivalent access as well. In balancing

the rights of a defendant to prepare a defense against the need

to protect a child victim from further dissemination of the

materials, a protective order can be fashioned to safeguard the

victim without impeding the rights of defendant. That balance

was achieved here.

II.

In its second argument, the State contends that the

protective order is insufficient to ensure that the child

pornography will not be disseminated.

Judge Council painstakingly addressed the terms of the

protective order with the parties and ultimately entered an

order requiring the State to produce two copies of the “images

and data” for defendant, provided: the materials could not be

copied or reproduced; the materials could only be used in the

preparation of this case; the materials could not be disclosed

to any other person except defendant, his counsel and his

experts; defendant could only view the materials in the presence

of counsel; the order binds all parties involved in the

investigation, prosecution and defense of the matter; the

materials were hand-delivered; any computer that was used to

view the materials should not be connected to the Internet, a

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network or a printer; the materials must be maintained by the

defense in a locked file; the materials should be returned at

the conclusion of the matter; the parties must destroy all

images and data from the computers; and the computers should be

overwritten in a manner to make the images irretrievable in the

future.

Paragraph 2 of the protective order provided as follows:

(2) IT IS FURTHER ORDERED that pursuant to

R. 3:13-3(f), any and all images and data

turned over to defense counsel by the State

are not to be copied, reproduced,

distributed, disseminated, electronically

stored and/or electronically uploaded or

downloaded to any computer and/or electronic

storage device in any way, other than files

created by the computer(s) beyond the

control of the user to permit defense

counsel to view the images on the two (2)

dedicated computers under defense counsel’s

control.

Paragraphs 11 and 12 provided as follows:

(11) IT IS FURTHER ORDERED that at the

conclusion of this matter, the parties shall

meet, agree upon and execute the specific

procedures which will result in the nonrecoverable

destruction of all images and

data provided under this order, and on all

computers and computer components used to

examine the materials . . . .

(12) IT IS FURTHER ORDERED that any and all

images and data remaining on any and all

computers and computer components utilized

to examine the materials provided under this

order shall be deleted and overwritten in a

manner rendering the images and data

completely irretrievable in the future.

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As noted, in developing a protective order pursuant to Rule

3:13-3(f), the court must balance the rights of the defendant

against the needs of any person requiring protection.

Krivacska, supra, 341 N.J. Super. at 35.

The State objects to the protective order because:

paragraph 1 authorizes the manufacture and release of copies of

the images; paragraph 2 contains a tacit acknowledgement that

copies would be made on defense computers; no person was

expressly bound by the agreement other than defense counsel;

defense counsel did not assume professional responsibility for

the potential failure of their agents to adhere to the order and

did not agree to provide a final report on the manner in which

the terms of the order were respected; and law enforcement was

not permitted to confirm that all inadvertently duplicated data

was destroyed. The State requests that, at a minimum, the

protective order be revised to conform to the standards in Boyd.

Paragraph 2 does not present a replication problem, because

paragraphs 11 and 12 ensure that even if files are inadvertently

copied by the computer within the hard drive, they would be

destroyed at the end of the proceedings. Moreover, defense

experts are bound by the order because paragraphs 3 and 6 make

the order applicable to “any expert.” The judge correctly

acknowledged that defense counsel are professionals deserving of

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the expectation that they will comply with the terms of the

protective order and treat the evidence with the utmost care.

An attorney “owes the duty of good faith and honorable dealing

to the judicial tribunals before whom he practices his

profession.” In re Turner, 83 N.J. 536, 539 (1980) (internal

citation omitted). See also RPC 3.4(c) (prohibiting a lawyer

from knowingly violating a court order).

There need not be additional references in the order to

defense experts, a report detailing how defense counsel complied

with the terms of the order or for law enforcement to ensure

compliance with the terms of the order. The order is

sufficiently protective of child victims because: the evidence

will only be used by defense counsel to prepare a defense; will

be on two dedicated computers that will not be connected to the

Internet, a network or a printer; will be kept in a locked file;

and will be returned to the State at the conclusion of the

proceedings. Non-compliance with this order exposes counsel to

both professional and judicial sanctions. We do not agree that

the protective order need track all of the provisions identified

in Boyd. The protective order here is reasonable and

accomplishes the goal, which is to ensure that the child

pornography is not disseminated.

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During colloquy, the court suggested that the problems

would be solved if the State provided the defense with a

computer for viewing the materials, but the State rejected this

possibility. Subsequently, by letter dated April 23, 2009, the

State agreed to have a representative bring the images to

“defense counsel and/or their representatives,” to view at their

offices on a state-owned computer that would be retained by the

State except when the images were actually being viewed.

While the State’s offer resolves some of the issues, it

still leaves the discovery under the control of the State. The

need for defense counsel to have unfettered access to the images

and the need for defense experts to maintain anonymity will be

compromised by the presence of the State representative who

controls the computer.

The essence of the State’s position is premised on what

might occur if defense counsel did not carefully maintain the

discovery or if someone violated the order or inadvertently

failed to appropriately care for the discovery materials.

Hypothetical examples of misdeeds or human error abound on

either side of the issue, but the carefully crafted protective

order spells out the parameters of conduct. That should be

sufficient to guide the future course of discovery.

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The competing interests that have been identified require a

careful balance. Neither side of this dispute has advanced a

position that represents anything less than a good faith effort

to respect and protect their stated interests. But we are

satisfied that the order in place provides a reasonable

accommodation of these interests, will ensure that defendant

receives appropriate discovery and will minimize the State’s

concern about dissemination and protection of the victims of

child pornography.

Affirmed.

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The Ocean County Prosecutor’s Office seached the academy’s offices and it seems like they found something.  This can be both good and bad for him.  I first want to know who this concerned citizen was and how this person would know that Baryla allegedly had child porn on the computer.  Next, I want to know who else had access to this computer.

The fact that this computer was at the academy is bad because it could be really tough to file a motion to suppress if they didn’t have a warrant.  However, it could be good for them because if more people had access to it, the more likely it could have been someone else that downloaded this child porn.

An attorney should be able to get an idea from the client as to what defenses are possible but will not know everything for a few months.

Story is here.

These cases are great for a defense attorney; at least they should be. However, most defendants including Mr. Kahn, confess to everything which severely limits a defense attorney’s options.  Without a confession, it is possible to avoid charges all together.  I know this because I have done it in my own practice.  Thus, when attorneys such as myself beg people to call an attorney first over and over again, we have clients like Kahn in mind. 

Nevertheless, even with a statement, you can still work out great deals.  Hopefully Kahn gets an attorney that knows what he or she is doing.  I see far too many attorneys that take computer crime cases when they know don’t even know how to turn on a computer.

Story is here.

The defendants include:
- Joseph Ponsi, 63, who retired in 2004 after 30 years as a guidance counselor for the Palisades Park junior and senior high schools.
- William DeMarzo, 48, a member of the Old Tappan planning board
- Anthony Engstrom, 20, a dispatcher for Maywood Police department
- Max Weinstein, 18, Edgewater
- Anthony Luciano, 23, Park Ridge
- Ronnie Franklin, 31, Hackensack
- Ramon Cruz, 36, Bergenfield
- Daniel Borjas, 31, North Arlington
- Chris Bohan,  29, Paramus
- Daniel Berardo, 18, Cresskill
- Marc Serkin, 45, Cranford
- Gilbert Seidel, 45, Hawthorne
- Joseph Robibero, 30, Vernon
- John Prevete, 44, Bloomingdale
- Wilman Rangel Mejia, 44, Paterson
- Louis Beyer, 39, Butler

Any charged with possession of child pornography is looking at a 4th degree felony.  Any of them charged with distribution is looked at a 2nd degree felony.  Some attorneys have reported problems dealing with the Bergen County Prosecutor’s Office on these cases, but I’ve done quite well.  The Assistant Prosecutors I’ve dealt with have been fair and professional, but maybe that’s just me.

Story is here.