A defense lawyer in a child pornography case says his client was unfairly hamstrung in reviewing the state’s evidence, while a well-known public figure in like circumstances was given unrestricted access.
At the state Supreme Court on Wednesday, Bruce LiCausi said the Appellate Division unfairly created a “celebrity” system for defendants like former Democratic Assemblyman Neil Cohen, who was allowed to see the evidence against him at his lawyer’s office.
“I should have equivalent access to the evidence,” LiCausi argued in State v. Scoles, A-41-11.
LiCausi’s client, Blaine Scoles, of Green Brook, was arrested and charged with second- and fourth-degree counts of child-welfare endangerment based on a search warrant that allegedly turned up illicit files on his home computer.
In a pretrial discovery motion, LiCausi sought copies of all evidence prosecutors intended to use so he could challenge the authenticity of the images authorities claimed constituted illegal pornography. The state would not turn over the images but agreed to on-premises review at the Somerset County Prosecutor’s Office — on 48 hours advance notice and under supervision.
LiCausi cited State v. Cohen, A-3682-08, in which the Appellate Division in 2009 affirmed Mercer County Superior Court Judge Gerald Council’s order that prosecutors produce copies of all computer images and data confiscated, subject to certain conditions to prevent their dissemination.
Superior Court Judge Angela Borkowski denied the motion on June 22, calling the Cohen decision nonbinding and factually distinguishable, because it involved more images, different charges and an out-of-state defense expert who could not feasibly examine the materials at the prosecutor’s office.
Borkowski issued a protective order allowing LiCausi and an expert to examine evidence in prosecutors’ custody. Scoles’ interlocutory appeal failed.
Justice Barry Albin noted that all LiCausi had to do was give 48 hours’ notice. “What’s the problem?” he asked.
“I don’t care if it’s five minutes’ notice,” said LiCausi. “It impairs my ability to prepare a defense.”
Chief Justice Stuart Rabner asked how that could be.
Lawyers preparing for trial or in the middle of trial often feel the need to review evidence instantaneously and at odd hours, LiCausi said, adding, “I want the same accessibility as the prosecutor.”
Lawrence Lustberg, representing the amicus Association of Criminal Defense Lawyers of New Jersey, agreed. “The state says, ‘We can’t trust defense attorneys.’ That’s a very disturbing principle,” said Lustberg, of Gibbons in Newark. “When you’re on trial, you need to have the critical evidence about you.”
Lustberg said defense lawyers in these cases should be given mirror copies of the relevant hard drives.
Rabner asked what language should be in restrictive orders if the court agreed.
Lustberg said mirror-hard-drive access should be limited to the attorney and experts; the drives must be installed only in computers that do not have the ability to transmit, store or copy images; and the hard drives must be destroyed at the conclusion of the case.
Deputy Attorney General Anthony Picione said LiCausi’s needs are satisfied by the current arrangement. “The images stay in the control of the state, but the defense has unfettered access,” he said. “They have access just as much as they need access to it.”
To release the images, he said, would “run the risk of further dissemination. The harm to victims is very real and immediate.”
Picione noted that computers can keep a record of images or videos that have been viewed, so returning or destroying a drive would not be effective. “When you give everything back, you’re not giving everything back,” he said.
Picione urged the court to adopt a rule similar to the one it crafted in State v. Garcia, 131 N.J. 67 (1993): that the defense should not be given the precise location of police surveillance locations.
Even protective orders, he said, are not foolproof. “We have to guard against those who do not abide by protective orders,” said Picione.
Richard Pompelio, arguing on behalf of amicus New Jersey Crime Victims Law Center, implored the court to keep the children in the images in mind as it decides what rule to craft.
“Be mindful of the impact of whatever you do,” said Pompelio, of Warren’s DiFrancesco, Bateman, Yospin, Kunzman, Davis & Lehrer. Those children, he said, are victimized any time those images are viewed, no matter whether it is the prosecutor or the defense attorney.