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Judge refuses to allow defense to copy child pornography for testing
By Ed Runyan
WARREN
A Trumbull County judge has refused a defense attorney’s unusual request to be provided with copies of purportedly illegal child pornography her client is accused of possessing and sharing.
Atty. Sarah Thomas Kavoor of Warren has argued that she needs to be able to provide the images to an expert witness so that he can analyze them and determine if they are child pornography and whether they have been altered. She says it’s a matter of due process.
Judge W. Wyatt McKay of common pleas court ruled against the request Wednesday in the criminal case of Jeremy M. Hollingsworth of Warren, who is charged with nine counts of downloading and sharing child pornography.
“Courts have held that restrictions on a defense expert’s ability to possess child pornography do not violate the constitutional rights of the defendant,” Judge McKay ruled.
If convicted, Hollingsworth, 38, could get 70 years in prison.
In her motion, filed in April, Kavoor asked that Trumbull County prosecutors turn over “true, complete, unaltered and unredacted copies of any and all material the prosecution has in its possession or control which was acquired during the investigation.”
Requests for copies of government evidence is common during the “discovery” phase of criminal cases.
However, as Gabe Wildman, assistant Trumbull County prosecutor, pointed out in a court filing, the federal Adam Walsh Child Protection and Safety Act of 2006 prohibits child pornography in the possession of prosecutors to be copied and released to defense counsel.
Federal law says child pornography “shall remain in the care custody and control of either the government or the court,” Wildman said.
The defendant’s representatives have the right to inspect, view or examine the evidence at a government facility but not copy it, Wildman said. He has “repeatedly offered to make reasonable accommodations to allow the defense, including any defense expert, to view these files in their entirety,” Wildman said.
Wildman cited a federal court ruling that said the Adam Walsh statutes “apply equally to the [malicious] pedophile and the defense attorney.”
Kavoor said she doesn’t know whether Hollingsworth will appeal Judge McKay’s decision, but she believes the statute is unfair to her client.
“It’s unfathomable for a defense attorney not to have the evidence that has been used against his client,” she said. “The police have the photos and videos. The only person who doesn’t have them is me.”
Kavoor said for Hollingsworth’s defense expert to analyze the images, he would need to view them with specialized equipment that he could not bring with him to Ohio. The law also would require Hollingsworth to pay the expense of having his expert witness flown to Ohio, she said.
Wildman said there is a good reason why the images are not allowed to leave the government’s possession.
“This stuff is toxic waste. We don’t want it getting lost or getting out there,” he said.