New Jersey’s high court has made it possible for defense lawyers to obtain for review the evidence against clients charged with child pornography-related offenses.
The unanimous court ruled on Thursday, in State v. Scoles, A-41-11, that lawyers can access the material in their offices provided they agree to certain strictures and conditions.
Noting an increase in child pornography prosecutions and that judges have been fashioning their own rules for pretrial discovery, the court said it wanted to promote consistency and a more uniform approach across the state.
The justices rejected the federal approach, in which evidence of child pornography is kept under the control of the government or the court.
The court followed the approach upheld in the case of Neil Cohen, a Democratic Assemblyman from Montclair charged in 2008 with possession of images of child pornography in his legislative office. The appellate ruling in that case, State v. Cohen, A-3682-08, was ordered published on Thursday.
The justices said that a court-issued protective order designed to secure computer images of alleged child pornography from intentional and unintentional dissemination should closely track Cohen, in which Mercer County Superior Court Judge Gerald Council ordered that prosecutors produce copies of all computer images and data confiscated, subject to certain conditions to prevent their dissemination.
The court said protective orders should provide that:
• The images may not be copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded, or used for any purpose outside the case.
• The material must be viewed on a dedicated computer, not connected to the Internet, a network or a printer, which must be locked and secured when not in use.
• Transfer of the material from the state to the attorney, from the attorney to an expert and from the attorney back to the state must be hand-to-hand.
• Anyone viewing the material on behalf of the defense should be furnished with a copy of the order and will be subject to its terms.
• Agreements between defense counsel and their experts should include a provision certifying that the expert acknowledges the order’s terms.
• The defendant may not view the materials outside the presence of defense counsel.
• At the conclusion of the case, steps must be taken to ensure that all of the material is completely and irretrievably deleted from the computer.
"The above framework provides an appropriate starting point for courts to use; however, we leave to the court’s discretion the adjustment of that form of protective as the court determines necessary to the circumstances presented," Justice Jaynee LaVecchia wrote.
While not questioning the professionalism of the defense bar, she said trial judges must ensure that attorneys meet the technical requirements before the images are handed over in discovery.
If those requirements cannot be met, then counsel must view the images at a state facility. If that is the case, the state must provide as much access as possible, especially as trial nears.
In the case at bar, Somerset County Superior Court Judge Angela Borkowski had issued a protective order allowing defense counsel and an expert to examine evidence in the prosecutors’ custody on 48 hours’ notice.
LaVecchia called that "wholly unacceptable," saying, "Such a response time could unduly inhibit an attorney’s work. We cannot sanction such a lengthy delay as the start of trial approaches and counsel’s prompt access to the material may be needed to properly assist the client with effective representation," she said.
The Attorney General’s Office had urged the court to adopt the federal rule, embodied in the Adam Walsh Act, 18 U.S.C.A. § 3509(m), which keeps evidence of child pornography under control of prosecutors or the court.
LaVecchia, noting that some states follow the federal rule and others do not, said "the number of decisions on one side of the scale versus the other matters less than adherence to our longstanding case-law view in favor of the exchange of pretrial discovery and the court rule that makes pretrial access to the evidence a critical right for all defendants."
Bruce LiCausi, the attorney for defendant Blaine Scoles, sees the ruling as positive. "This was a rather cavalier position taken by the state in this case," LiCausi says. "The court recognized there was a real problem."
LiCausi, a Raritan solo, agrees with the reasons behind the rules. "It’s critical that there are stringent safeguards, because anything can happen," he says.
He adds, however, that the ruling could lead prosecutors to seek to show that defense counsel in some cases cannot meet the court’s requirements. "In that sense, it’s a little troubling," he says.
During oral arguments in January, LiCausi said the Appellate Division had created an unfair "celebrity" system for defendants like Cohen and he urged the court to give all defendants the same treatment.
Lawrence Lustberg, appearing for the amicus Association of Criminal Defense Lawyers of New Jersey, also argued for the Cohen approach.
"The court recognized the importance in New Jersey of broad discovery rights for defendants and specifically rejected the federal restrictions," Lustberg, of Gibbons in Newark, said after Thursday’s ruling.
The amicus New Jersey Crime Victims Law Center had urged the court to adopt the federal rule. Its lawyer, Richard Pompelio of Warren’s DiFrancesco, Bateman, Yospin, Kunzman, Davis & Lehrer, had not read the ruling Thursday and would not comment.
Officials from the Attorney General’s Office did not respond to a request for comment.