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.
Given the apparent strength of the State’s case, I was not surprised that the initial plea offer included a year in jail, a permanent conviction and 15 years on the sexual offender registry.
However, acting on the information I received from my client, I hired a firm specializing in digital forensics to conduct our own review of the device. Our experts did this review and were able to determine that there were in fact images on the computer but that they had not been downloaded and saved by my client. Instead these images were automatically created by the facial recognition software of the device while the videos were being viewed. The experts were prepared to testify that the user would not have been aware that these photos were being created and did not have the ability to erase them. Since the Child Pornography statute in Maryland requires not only that the material be possess but also that it be RETAINED, I believed we had a very strong defense. I took this information to the State’s Attorney who offered to allow the client to receive probation before judgment. This will allow the client to not have to register as a sex offender after just 3 years as well as to allow him to ultimately have the matter expunged from his record. My client and I discussed the risks of going to trial, which included the strong possibility of prison and 25 years on the sexual offender registry, if convicted. He ultimately decided to take the sure thing and accepted the probation before judgment.