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Judges of the Georgia Court of Appeals last week said they must “reluctantly” issue an opinion that may make it more difficult for the state to prosecute people who look at child pornography. A three-judge panel on June 21 reversed the conviction of a north Georgia man on 106 counts of sexual exploitation of children because, the judges found, prosecutors didn’t prove that the man knew he had pornographic images stored in his computer hard drive. In what it said was an issue of first impression in Georgia, the panel of Judge M. Yvette Miller, Chief Judge Anne Elizabeth Barnes and Presiding Judge J.D. Smith narrowly construed what it means to “knowingly” possess child pornography under the state’s sexual exploitation law. It’s not enough, wrote Miller for the panel, to prove a defendant has pornographic images in the inaccessible cache files of his computer. The district attorney whose office prosecuted the case, Herbert E. Franklin Jr. of Walker County, said the ruling will make his job harder. “With the computer-savvy folks out there . . . it’s going to limit our ability to prosecute, I would think,” he said. But the lawyer who won the appeal, Daniel J. Ripper of Luther-Anderson in Chattanooga, Tenn., said the opinion just gives prosecutors a roadmap for handling child pornography cases. “This is a case that says, ‘Here are the facts that you need,’” said Ripper, a member of the state bar of Georgia who said about half of his work is in Georgia. Edward Ray Barton was indicted on the sexual exploitation counts based on photos found on his laptop computer. Barton’s wife gave authorities the computer after the Walker County Sheriff’s Department began investigating allegations of child molestation against Barton, according to the appellate court opinion. At the jury trial before Walker Superior Court Judge Kristina C. Connelly, a U.S. Secret Service forensic computer analyst testified that each of the pornographic images on Barton’s computer was stored on the hard drive of his computer in temporary Internet file folders, according to the opinion. The agent said the files’ existence meant that Barton had viewed the images on the Internet but hadn’t taken any additional steps to save them on his computer – and couldn’t retrieve the images again without special software he didn’t have. According to the court’s opinion, the agent said that Barton had looked at each of the 106 images once over the course of two separate time periods totaling less than four hours on Dec. 2 and 3, 2003. He testified that even those unwanted images that “pop-up” on a computer screen are stored on a computer’s hard drive but didn’t say whether any of the images stored on Barton’s computer represented “pop-ups.” A jury acquitted Barton of child molestation and sodomy charges, which Ripper said arose in the context of a bitter divorce. But he was convicted on the sexual exploitation charges based on the photos and sentenced to serve 20 years in prison. Barton appealed, arguing that the state hadn’t shown he knowingly possessed the images because he hadn’t taken any affirmative action to store the photos on his computer, was unaware the computer had automatically saved the images and had no ability to access the saved images. “Reluctantly, we must agree,” wrote Miller. The issue considered by the court appears not to have been a constitutional free speech question but one of statutory interpretation – specifically, the term “knowingly to possess.” While the issue was new here, Miller noted that other state and federal courts had differed as to whether possession of child pornography required the defendant to have taken some affirmative action to download or save the images. “None of those decisions, however,” wrote Miller, “found that a defendant may be convicted of possessing child pornography stored in his computer’s temporary Internet file folders, also known as cache files, absent some evidence that the defendant was aware those files existed.” The panel said it wasn’t willing to hold that, either. For images found in cache files to be enough to show possession, wrote Miller, the state has to prove that the defendant “either: took some affirmative act to save or download those images to his computer; or had knowledge that the computer automatically saved those files.” The court ruled that the state hadn’t met that burden of proof with respect to Barton. “[T]here was no way that Barton could have learned of the cache files in the normal course of using his computer,” wrote Miller. “Nor did the state present any circumstantial evidence that would have allowed the jury to infer Barton’s knowledge of these files – i.e., they did not show that Barton was an experienced or sophisticated computer user who would have been aware of this automatic storage process.” Without having had an opportunity to read the opinion, the district attorney on the case said the opinion presents “an easy way for the child pornography folks to get around” the law. Franklin said that they can view images online through an off-shore-based subscription service without downloading the file to an accessible place on their hard drive. Images appear on their screen either way, he said. “That’s a very highly technical decision they’re making. . . . I personally don’t think it’s a distinction that should be made,” said Franklin. Ripper, Barton’s appellate lawyer, said that even if a prosecutor proves that a defendant is sophisticated enough to know that images are saved in his hard drive – he said his client never would have known that – it’s not enough to prove knowledge beyond a reasonable doubt to show that 106 pornographic images appeared on the defendant’s screen in two days. “Who knows what kind of computer malady would break loose,” said Ripper, who tried the case with LaFayette attorney Mary Jane P. Melton. “Maybe he’s just being splattered with pop-ups.” However, he said, a forensics expert could determine the manner in which the images came to appear on the computer by examining Internet search histories stored on the computer. If such a search reveals that the defendant sought out the child pornography, said Ripper, “you take that and add it to the number of images and the amount of time, then bingo.” Douglas N. Peters, a Decatur lawyer who regularly represents defendants in child exploitation matters, said the decision underscores the importance of defense counsel having their own expert review computer evidence in a child pornography case. “I think there is a danger in any case where the state brings in expert witnesses for the defense to merely accept their opinion.” It’s not clear if the decision will result in Barton’s immediate release. Ripper noted that his client received a separate conviction and prison sentence for assaulting another inmate while awaiting trial. Although The Legal’s sister publication, the Fulton County Daily Report, spoke to Franklin briefly after the opinion came out, he could not be reached subsequently to discuss the case further or answer whether he would seek further appellate review. The case was Barton v. State. This article originally appeared in the Fulton County Daily Report , a publication of ALM.

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