I recently represented a young man in Harford County Circuit Court who was charged with Possession of Child Pornography. I am former prosecutor and career full time criminal defense attorney practicing exclusively criminal law for 22 years. I have defended scores of individuals charged with Possession and/or Distribution of Child Pornography and have blogged many times about the increasingly harsh penalties that are being sought by both state and federal prosecutors in these cases. The granting of probation before judgment in these cases is almost unheard of in recent times.
My client was just 18 years old when he was charged in this case. He was caught up in the typical investigation that we see in these cases. Undercover police officers identify a computer that shares child pornography on file sharing programs such as bitTorrent and watch it until a computer with an IP address within their jurisdiction connects to it and downloads Child Pornography. The police will then subpeona the user data for that IP address and execute a search and seizure warrant looking for the device or devices that were used to download the illegal material.
The case against my client on first review appeared quite strong. The police confiscated his phone and on that phone were hundreds of images of Child Pornography. My client did not admit to downloading child pornography but he did admit to exclusive use of the phone. When interviewing my client he advised that he could not understand why there would be images on his computer because he never intentionally downloaded this material. He advised that he did in fact use BitTorrent to download legal pornography and that in the event that the download included Child Pornography, he always erased that material immediately.