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The question of whether defense attorneys are allowed to review child pornography evidence-and under what conditions-is being played out in courts on opposite ends of the country. In Washington state, prosecutors are asking the state Supreme Court to prevent defense lawyers from getting copies of child pornography, permitting them to view such photos or computer images only in an evidence room, much like they would drugs or murder weapons. In Virginia, a criminal defense lawyer is challenging a new federal law that says defense lawyers can’t have copies of child pornography in federal cases, but can only review such material at a courthouse or an FBI office. Meanwhile, the National District Attorneys Association (NDAA) recently passed a new conduct policy recommending that prosecutors not make copies of child pornography evidence for defense attorneys. Those actions have caught the attention of the criminal defense bar, which argues that withholding evidence from defendants is unconstitutional and interferes with their right to see evidence against them. Moreover, lawyers argue, keeping evidence from defense attorneys unfairly suggests that they can’t be trusted. “It’s kind of distasteful to me to suggest that defense lawyers are less likely to abide by court orders or professional rules. They’re officers of the court,” said Maryland public defender Michele Nethercott, who co-chairs the forensic evidence committee for the National Association of Criminal Defense Lawyers. Nethercott argued that limiting defense lawyers’ access to evidence is harmful on a number of levels. First, she said, lawyers can’t properly confront their clients with the evidence with police or prosecutors close by. Also, experts who need to evaluate the evidence will have limited time to do so and may have to drive or fly from out of state to view it. And, finally, lawyers themselves should be able to view the evidence more than once or twice, she said. Nethercott also disputed prosecutors’ claims that a child pornography victim is hurt every time a photo is shown. She argued that viewing such material for sexual gratification is what hurts children, not when it is done as part of an investigation. “Does that mean that a court clerk can’t handle it, that the jury can’t see it, or a judge?” Nethercott said. “Defense attorneys need access to this critical evidence.” Avoiding ‘victimization’ But defense lawyers are not being denied access to the evidence-just hard copies of it, countered Paul Logli, past president and current board chairman of the NDAA. “Every time an image like that is viewed, it’s another victimization,” Logli said. “We understand the defense counsel has a right to review that . . . but to have an additional copy made is to re-victimize the victim.” Logli, the state’s attorney in Winnebago County, Ill., said that at the NDAA’s most recent board meeting in the summer, the group called upon prosecutors to refrain from making copies of child pornography evidence for the defense. He said defense lawyers and their clients can still view such evidence in a monitored setting; they just can’t take it with them. “We do the same thing in murder cases where we have bloody clothes and the weapons and we don’t let them walk out with it,” Logli said. “It’s not a matter of mistrust. It’s a matter of the making of a copy is in and of itself a new victimization. And to run the risk that it could be copied elsewhere is substantial.” Kathleen “Kit” Proctor, a deputy prosecuting attorney in Pierce County, Wash., who has asked the Washington Supreme Court to intervene on the subject, agreed. “There is harm every time you duplicate these materials,” said Proctor, arguing that the debate is not about denying defense attorneys access to evidence. “We have always recognized that there is a right to access to these materials . . . .What I want the court to recognize is that when we are talking about the discovery of contraband materials, you have to have stringent protocols in place.” Proctor has asked the Washington Supreme Court to overturn a September court decision in which a judge ordered prosecutors in a high-profile child sex case to give the defense copies of photographs and videotapes detailing an alleged child rape and molestation. According to Proctor, the evidence was found in the home of the defendant-a retired police officer who allegedly obtained court exhibits from child rape cases that were taken from evidence rooms or the clerk’s office. State of Washington v. Lee William Giles Jr., No. 06-1-03604-4 (Pierce Co., Wash., Super. Ct.). Proctor said that prosecutors are seeking clarity from the high court regarding how much access the defense should have to child pornography evidence. She noted that court rulings in recent years have produced mixed results: Some judges are ordering prosecutors to hand the evidence over, while others are denying full access to the defense. For example, one month after the judge ordered evidence be handed over to the defense in the case of the retired police officer, another Pierce County, Wash., state judge ruled that prosecutors didn’t have to make copies of evidence for another accused child molester and his attorney. The attorney in that case, solo practitioner Barbara Corey, blasted the ruling, arguing that she should have full access to evidence that could put her client away for 40 years. “My client is charged with taking photographs of three children that the state says it has . . . but my client is adamant that he didn’t do this,” Corey said. “I need to have access to this type of evidence.” Corey is representing Michael Allen Boyd, who is charged with more than two dozen crimes, including child rape, molestation and possession of child pornography. Under the court’s recent ruling, Corey said she has only two opportunities to view the evidence-a hard drive-in a secure location. If she wants a third chance, she will have to go before the court again. Corey also said her expert recently had to drive 40 miles to view the evidence, but couldn’t use his own equipment to evaluate the images, and Corey had to be present the entire time. Corey said she plans to make a motion for discretionary review of the evidence, subject to a protective order. “I’m not minimizing the harm that results from these cases,” Corey said. “I was a prosecutor myself. I just think it’s wrong to withhold discovery. It’s contrary to the most fundamental constitutional principle.” Walsh Act challenged Withholding discovery is also at the heart of a recent lawsuit filed by criminal defense attorney Ian N. Friedman of Ian N. Friedman & Associates in Cleveland, who is challenging the new federal law on child pornography evidence. The law, known as the Adam Walsh Child Protection and Safety Act of 2006, took effect in July and bars defense lawyers from having copies of child pornography evidence in federal cases. They can view such evidence only in a government facility, such as a court or an FBI office. Friedman, on behalf of a client accused of possessing child pornography, filed a challenge to the act last month. He is seeking full access to digital images and videos of alleged child pornography that were allegedly taken off the hard drive of his client’s computer. U.S. v. Knellinger, No. 3:06 CR 126 (E.D. Va.). Friedman said the new law poses several problems for defense lawyers, including experts being reluctant to make long trips to FBI labs to view the evidence. He said lawyers also need full access to evidence so they can properly assess it. “We are now forced to proceed on memory of what we saw in the government lab,” Friedman argued. “And many times during trial, there is a need at night, when we’re back preparing our next day’s examination, to look at the evidence. And we don’t have access to it anymore because it’s locked up at some government lab.” He added, “It’s definitely a threat to work product.”

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