Every time law enforcement makes a copy of child pornography to give to defense attorneys in preparation of a criminal case in California they’re breaking federal law.
That’s because of a conflict in a U.S. regulation called the Adam Walsh Child Protection and Safety Act, which strictly forbids the copying of child porn for any reason, even if it’s for defense counsel preparing for a trial. But California law allows for court-ordered reproduction of child porn evidence given to defense teams.
The tension between federal and state rules has created ethical and legal problems for law enforcement trying to stamp out child porn in the Bay Area.
And in San Francisco, this conflict recently came to a head when the District Attorney’s Office opposed a public defender’s motion to receive copies of child porn evidence in advance of a criminal trial.
When state courts order district attorneys to provide copies of child pornography to defense counsels they must obtain copies from Regional Computer Forensic Labs—federally funded centers that provide computer forensic support for state cases.
According to federal and local law enforcement officials who work in the Silicon Valley forensic computer lab in Menlo Park, the conflict in the two regulations means they must break federal law to comply with state court orders. They say this conflict also leaves law enforcement officers participating in what they consider to be the continued exploitation of young victims.
"Every time that we release a hard drive with these horrific images you’re victimizing each of those children," said special agent Brenda Atkinson, chief division counsel in the FBI’s San Francisco Division.
Atkinson and many of her colleagues at the Silicon Valley lab fear losing control of evidence when they turn over hard drives full of disturbing photos and graphic images.
"It’s just like in drug cases," Atkinson said. "We don’t say to a man who has been charged with possessing a kilo of cocaine ‘Here’s half of the key. Go ahead and do what you like with it.’ Right?"
Heather Young, an FBI supervisory agent, calls the evidence contraband.
"It puts the district attorneys’ offices in a position of having to provide a duplicate and thereby create child pornography, which is contraband," Young said.
Other states and some other counties in California get around this by allowing defense teams and their experts to view the material in a private room inside the forensics labs without interference from prosecutors or law enforcement. Atkinson says local defense attorneys and their forensic experts can review child pornography evidence in a room inside the Silicon Valley lab.
That option is not acceptable to some defense attorneys in the Bay Area.
"We are trusted officers of the court to handle that evidence," said Sandy Feinland, a deputy public defender in San Francisco. "There is absolutely no reason not to trust that I would be careful with this evidence and not distribute it to anyone beyond the limits of the protective order."
Feinland says state law clearly provides for full disclosure of evidence being used against the accused on trial.
"I think that a vigorous defense, which everyone’s got the constitutional right to, requires that defense council in any type of case have control of the evidence and can review it confidentially and meaningfully with their experts and with their clients," he said.
California’s Fourth District Court of Appeals apparently agreed. In its 2002 ruling, "Westerfield v Superior Court of San Diego" the court ruled that prosecutors must turn over all evidence including copies of child pornography to the defense team.
San Francisco police officers who investigate Internet crimes against children note the growing proliferation of child pornography. They say the conflict between federal and state law will become stickier as law enforcement make more arrests and district attorneys bring more cases against suspected child pornographers.
"We are put in a position to create and duplicate child porn evidence that we don’t want to do," said San Francisco Police Sergeant Brian Rodriguez.
That leaves law enforcement with a difficult choice. They either have to turn over hard drives full of illicit material or refuse to do so, which could jeopardize a solid case.
"We can’t win," Atkinson said.
The NBC Bay Area Investigative Unit found the quandary has played out in court in San Francisco, most recently in a case against a man named Adric "David" Petrucelli, who is awaiting trial on one count of distribution of child pornography.
Petrucelli’s public defender cited the Westerfield decision and asked for copies of the video evidence against his client. Judge Brendan Conroy followed state law and ordered the discovery of the evidence.
According to court records, San Francisco assistant district attorney Alexis Feigen Fasteau balked at making copies. She cited the federal Adam Walsh Act, which forbids the copying of material that constitutes child porn, and argued that the defense team and its experts would have access to the private viewing room at the forensics crime lab.
"The defense may argue that possessing a copy is more practical for their expert," Fasteau wrote in court papers. "However, the compelling need to protect the actual children depicted in these photos from being re-victimized, as they are with every duplication, should be balanced against mere convenience."
Ultimately, the San Francisco District Attorney’s Office and federal authorities backed down and made copies of the child pornography. None of the parties involved in the case would comment for this story.
Atkinson says this scenario is happening more frequently.
"If we continue to withhold the hard drives with the actual images," Atkinson said, "we risk the assistant district attorneys being held in criminal contempt or civil contempt and we risk the state court judge during our case dismissing the indictment."
Some legal experts say the conflict has been overstated. Franklin Zimring, a UC Berkeley law professor who specializes in state and federal law, says the hype is nothing more than an academic exercise because there is no way a prosecutor would ever be held in contempt.
"This is one of the clever legal arguments that is a hypothetical problem but not a real one," Zimring said.
He also says he doesn’t buy the argument that law enforcement and prosecutors lose control over contraband by handing it over to defense teams.
"That’s an argument I really don’t understand unless federal law enforcement is telling you that they don’t trust local judges in local criminal courts," Zimring said. "There is no sense in which any materials which are delivered under the orders we are talking about go out of control of judicial officers. They are under the control of the same criminal courts that are administering the rest of the local prosecution."
San Mateo County deputy district attorney Sean Gallagher sees few problems in his county. He says state law, and specifically the Westerfield decision, sets the legal precedence state prosecutors must follow. Gallagher says any change in approach would require action from lawmakers in Sacramento to overturn the current reading of the law.
"I think all prosecutors and law enforcement would like to see a legislative fix," Gallagher said.
Several lawmakers contacted by NBC Bay Area seemed lukewarm to the idea of legislative action. The State Attorney General’s office says there is already a clear process to navigate the conflict between state and federal law.
But for those trying to eliminate child porn and prosecute the people who commit heinous acts against young victims, the status quo is intolerable.
"We’re weighing two really horrible outcomes," Atkinson said. "Re-victimizing children or potentially letting a child pornographer or sex offender walk out of the courtroom."
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