Today Professor Paul Cassell won an important court victory for child pornography victims seeking to prevent additional copies from being made of images depicting them during court proceedings. Judge Kimberly J. Mueller of the U.S. District Court for the District of California held that the Adam Walsh Child and Protection Safety Act of 2006 permitted the Government to refuse to make a mirror copy of computer media seized from a criminal defendant as part of a child pornography prosecution. Instead of proliferating copies of the materials, Judge Mueller held that Government could require that a defense attorney and any defense computer expert examine the existing materials in a secure government facility.
In brief filed earlier this summer available here, Professor Cassell had argued on behalf of a child pornography victim, identified only as “Vicky,” that it was improper to order duplication of images showing Vicky as a young child being sexually abused. The Government had seized the images from defendant Albert Lee Mitchell as a part of a federal child pornography prosecution. The defense asked for the Government to make duplicates of the images for its expert to review. Cassell argued that any duplication of the images would further traumatize Vicky. Vicky herself also filed an affidavit, explain that “If the defense expert takes the computer media out of the control of law enforcement there will be other people in her office who may likely see my images. There is always the possibility that the media is lost or transmitted further to someone else. I am horrified at the prospect of the justice system somehow facilitating more and more people seeing what is the record of my nightmares.”
In sixteen-page ruling available here, Judge Mueller agreed with Cassell’s position. The Judge explained that “the record does not establish that . . . the government has not made the defendant’s hard drive ‘reasonably available’ by providing ‘ample opportunity ‘ for inspection.” The Judge accordingly refused the defense request to allow copying and required the defense to examine the hard drive within the Homeland Security Investigations office in Sacramento.
Professor Cassell called the ruling an important victory for crime victims. “This ruling makes clear that once law enforcement secures child pornography images as part of a criminal investigation, no further copies need be – and, indeed, should be made. Keeping the images under the tightest possible control is important to the psychological well-being of child pornography victims.”
Professor Cassell filed his brief through the Appellate Legal Clinic at the S.J. Quinney College of Law at the University of Utah. Also representing Vicky were Seattle-based attorney Carol Hepburn and San Jose-based attorney Michael J. Garvin of the law firm of Sheuerman, Martini, Tabari, Zenere and Garvin.