Wisconsin – from www.wislawjournal.com – The state’s protocol in child pornography cases — limiting defense attorneys’ access to the evidence to the state crime lab -– has been upheld by the Wisconsin Court of Appeals.

Such a procedure, the court held on July 30, reduces the risk of further dissemination, while still providing the defense complete access to the evidence.

After the state charged Ronald W. Bowser with seven counts of possession of child pornography, it moved for a protective order, which would allow Bowser’s defense team access to a computer hard drive allegedly containing child pornography only at the state crime lab, while prohibiting the defense from obtaining a copy of the hard drive.

Jefferson County Circuit Court Judge Jacqueline R. Erwin granted the motion. The Court of Appeals accepted Bowser’s petition for leave to appeal, but affirmed in an opinion by Judge Paul B. Higginbotham.

Judge Charles P. Dykman dissented.

The state’s protocol was adopted in response to the Adam Walsh Child Protection and Safety Act (AWCPA), which, in federal cases, prohibits law enforcement from providing copies of seized child pornography to any individual other than law enforcement officials.

Wisconsin statutes contain no such provision. Instead, sec. 971.23 requires the state to permit the defense “to inspect and copy or photograph” physical evidence, subject to appropriate protective orders.

Reviewing the protective order for abuse of discretion, the court held the order was appropriate.

The court acknowledged that there is no reason to think that the defense team is any less trustworthy than the prosecutors, but concluded that good cause still existed for the order.

“The circuit court could have reasonably concluded that the risk of improper use and dissemination increases when more persons possess copies of the child pornography — whether they are government employees or members of a defense team,” Higginbotham wrote. “It follows that it is reasonable to limit the number of persons who possess a copy of the illegal material.”

The court further held that Bowser failed to show that his ability to mount a defense would be hampered if he is not provided a hard drive. Although his expert testified he would be required to move most of his office to the state facility to conduct testing, and would be inconvenienced, he did not testify he would be unable to perform the tests.

The court acknowledged that, in some cases, the added expense may impede a defense, citing U.S. v. Knellinger, 471 F.Supp.2d 640 (E.D.Va.2007). Here, however, the court found that the added expense was not so significant that it would hinder the defense.

Before concluding, the court cautioned, “This opinion should not be read as creating a rule that circuit courts should or must generally grant a prosecution request for limited access to computer child pornography evidence. Under the facts before us, the judge would also have acted reasonably in denying the prosecution request, particularly because the defense here presented a proposal outlining the reasonable steps it intended to take to secure the evidence.”

However, Judge Dykman took issue with this disclaimer. In a footnote, Dykman wrote, “The majority’s claim that all this case is is only an affirmance of a discretionary determination fails to recognize the real world of criminal litigation. This is a stereotypical case. The facts are those of almost all child pornography cases. Why would future trial courts risk retrials when this case approves the method and rationale we will affirm?”

Dykman criticized the majority holding, both because the Wisconsin Legislature has not adopted any statutes comparable to the AWCPA, and because the procedures are not necessary to address any actual risk of further dissemination of the child pornography.

Noting that any Internet user can already access the pornography at issue, Dykman objected, “The majority is mathematically correct that adding three or four people to one-and-one-half billion people poses an additional risk. But it is equally true that pouring a gallon of water into Lake Mendota will raise that lake’s level, and increase the risk of flooding by the amount of rise.”

Attorney Jefren E. Olsen, who represented Bowser on appeal, agreed.

While the majority expressly said it was not creating a rule in favor of limiting access, Olsen said the court was effectively shifting the burden to defendants to show that the costs would be excessive.

In every case, Olsen noted, the financial costs to the defense would be higher. In addition, “In some cases, it could be horribly inconvenient. Some attorneys and experts may have to travel a long way to get to Madison,” he said.

While that could be a basis to distinguish the case at bar, Olsen said, “the effect is still that the burden has been changed to the defendant. Apart from the logistical problems, that is contrary to the clear language of the statute.”

However, Olsen acknowledged that, in many federal cases interpreting the AWCPA, courts have found that, despite the statute, the defense should get a copy, because the defense would be significantly impeded otherwise.