TELECOM Digest OnLine - Sorted: Interview With Prosecutor on the 'Child Porn' Case

Interview With Prosecutor on the 'Child Porn' Case

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Mon, 15 Jan 2007 18:26:59 -0600

ABC's Jim Avila's Interview With Andrew Thomas, District Attorney,
Maricopa County
Unedited Excerpts From The Interview Transcripts

JIM AVILA (ABC News Staff): So let's look at this case of this 15 year
old boy. First of all, what happened to the case? Police go to his
house. Guns drawn, uh, 6 o'clock in the morning, quiet cul-de-sac in
Phoenix. Wake up Mom and Dad, with guns in their faces. A gun to the
16 year-old who's up in the second floor, bring him down, accuse him
of child pornography. He's charged with nine counts. It could have
been 90 years. It's a two year process. At the end of the day, he's
charged with a crime which I doubt you've ever charged anybody with
before as an initial crime.What happened in your view?

ANDREW THOMAS (Prosectutor): Well, and and just to clarify, in terms
of the police action, uh, this office wouldn't have had control over
that, and I -- I frankly don't know the exact facts of how the
search warrants were executed. But there were search warrants obtained
from a court of law that were, uh, were executed. And as a result of
that, evidence was found uh, linking uh, this juvenile defendant with
the with possession of child pornography on his computer. He
was ...

JIM AVILA: (Overlap) What was the evidence that linked him to it?

ANDREW THOMAS: Well, initially, the National Center for Missing and
Exploited Children uh, came into contact with the Phoenix police
department. They, as a result of that tip, and evidence uh, linking that
computer to a Yahoo web site were able to work with our office, obtain
search warrants. And uh, they went in and uh, conducted that uh, uh that

ANDREW THOMAS: They then spoke to the uh, the juvenile who made uh,
certain admissions. Uh, while he denied accessing adult uh, pornography,
he did admit to being a part of uh, accessing uh, adult pornography and

ANDREW THOMAS: The juvenile admitted that uh, while he or he said, the
juvenile said that uh, while he did not access child pornography, he did
uh, access adult pornography as part of uh, a group, a web site that
he uh, went onto on the Internet. So you have all of that evidence plus
some incriminating statements. And as a result of that, the case was
brought. But as is ...

JIM AVILA: (Overlap) I just want to get ...


JIM AVILA: ... specific on that.


JIM AVILA: Because you say all of that evidence. When you listen
carefully to what you said, the evidence was that again, there were
some pictures on his computer that were child pornography.


JIM AVILA: You didn't have any admissions by him that he had anything
to do with child pornography.


JIM AVILA: Okay. There was no evidence that you found that directly
linked him to it, because it was a computer in the family's home.

ANDREW THOMAS: No, he admitted uh -- not to -- he did admit to the fact
that it was his computer. He admitted to the fact that he had used that
computer to access uh, the web sites where he frequented adult
pornography. And he, admitted that that was the computer that he used
for going onto the Internet. So -- and it was the computer that he
used and it was ...

JIM AVILA: (Overlap) Who else used that computer in the family?

ANDREW THOMAS: Well, there may have been other people in the
family who used it, but here's the thing. Uh, then I began at some
point, I started to talk about the individual, the need for
individualized justice.

JIM AVILA: So there was a huge amount of evidence that in fact, this kid
was not involved in a sex crime. And yet, your office and you yourself
continue to believe and put him through two years of hell, because you
continue to believe despite lie detector tests, court psychiatrist
reports, a report from the computer expert who said it could have come
from anywhere you continue to say ...

ANDREW THOMAS: (Overlap) Well ...

JIM AVILA: ... that he did it.

ANDREW THOMAS: Well, I -- again, I'm not sure that that's totally right.
But you gotta ...

JIM AVILA: (Overlap) Halfway right?

ANDREW THOMAS: ... you gotta (Inaudible) ...

JIM AVILA: (Overlap) (Inaudible) ... right here.

ANDREW THOMAS: Well, our experts certainly didn't think ...

JIM AVILA: (Overlap) ... Your experts ...

ANDREW THOMAS: (Inaudible) ... could have gotten it from anywhere.

(Overlapping Comments)

JIM AVILA: Your -- your experts ...

ANDREW THOMAS: I mean (Laughter)...

JIM AVILA: ... your expert was not an expert who did any analysis


JIM AVILA: as to where it came from. All your expert did was say it's here.

ANDREW THOMAS: Well, right. But let's back up. When you're looking at
a case again, not to belabor the point. You've gotta look at all the
evidence. Here, we had evidence that from the National Center for
Missing and Exploited Children that came to the Phoenix police
department showing that this computer user in this household had
access a Yahoo account where there was child pornography.

JIM AVILA: Well, that's not exactly ...

ANDREW THOMAS: (Overlap) We didn't obtain ...

JIM AVILA: ... what it said, is it?

ANDREW THOMAS: Well, no that ...

(Overlapping Comments)

JIM AVILA: It said that a computer in this addr -- house at this address
has some compu -- has some child pornography on it.

ANDREW THOMAS: No, they ...

JIM AVILA: It didn't say this computer user


JIM AVILA: It didn't identify a computer user.

ANDREW THOMAS: It it identified a computer.


ANDREW THOMAS: And the computer had accessed a Yahoo account where there
was child pornography. That was the, uh, basis for the search
warrants issued by a court.


ANDREW THOMAS Other evidence was assembled in the course of executing
the search warrants. The computer was found and seized. Child
pornography was found on there. The juvenile was interviewed. He
admitted at least partially, the substance of the crime, which was
yes, he used the computer to go on the Internet to access pornographic

It turned out he says it was only adult sites. Quite frankly, criminal
defendants are not famous for being forthcoming with the facts. So
you've got to weigh that ...

JIM AVILA: (Overlap) Except for this one passed two lie detector tests.

JIM AVILA: It sounds a bit like you're trying to have it both ways.
Because you're saying you didn't charge him with any ... you and at the
end of the day, you let him go. But you ... the final the end of the
day, he wasn't charged with any child pornography. None. He was ...



ANDREW THOMAS: Well, but he was charged with solicitation to furnish
uh, to furnish ...

JIM AVILA: (Overlap) He bought a Playboy magazine

ANDREW THOMAS: sexual exploitation ...

JIM AVILA: ... and took it to school and showed it to other 16 year olds.

ANDREW THOMAS: That's what he pled to, but that's a little uh, that
requires a little bit of explanation. It is very typical in plea
agreements what you have to do is, if you decided okay,
we want to try to resolve this case because the criminal charges were
originally brought we want to try to resolve it and specifically, you
bring the charges down.

And what you have to find is an appropriate uh, offense at that level of
felony so that you can enter into the plea agreement. That's
typically how the decision making process is done. So um, although I
wasn't privy to that decision making process, it was a line prosecutor
who handled tip I've done that. And typically, what you do is you would
find in this case, a classics on designated felony where there's a
factual basis so that I mean, you can't just pick any uh, any classic

It has to be something that relates to the crime as alleged so that the
defendant can go forward and admit guilt in court. And I should
note, not to put too fine a point on this, but this defendant did plead
guilty in a court of law.


ANDREW THOMAS: To the solicitation charge, which is a class six
(Inaudible) undesignated felony.

JIM AVILA: Which was ...


JIM AVILA: ... showing a Playboy magazine to another 16 year old at school.

ANDREW THOMAS: Well and ...

JIM AVILA: (Overlap) Is that child pornography?

ANDREW THOMAS: (Inaudible) well, no, but that's the whole point of
this. That when you're trying to resolve a case, you want to reach
the right outcome so that there is justice. We started up this
conversation by talking about these tremendous hammers and people can be
sent for too many years in prison.

Now we have, I guess, the accusation is well, maybe there wasn't enough.
That's the whole point of prosecutorial discretion in the judicial
system. It's finding a just outcome in an individual case. That was the
balance we tried to strike in this case. I think that the line attorney
who handled it, handled the case properly and uh, quite frankly, the
defense attorney would have been ethically bound not to allow his client
to uh, plead guilty to a crime he hadn't committed.

And the judge would not have been allowed by law to accept the uh,
guilty plea in open court if he did not think there was a factual basis
uh, to accept that plea.

JIM AVILA: Let me in fact, read you what the Judge said about that plea
agreement. He said as you were negotiating the plea agreement here the
reason why this agreement took place is because you couldn't prove the
things you just alleged now, or else we wouldn't be here.

ANDREW THOMAS: Well, I wasn't there to hear that.

JIM AVILA: Oh, it's right here at the transcript (sic).

ANDREW THOMAS: Well, that's fine. But here's the thing: This Judge there
is no way a court a judge in a court of competent jurisdiction in
this state can accept a guilty plea unless they believe the uh,
defendant is guilty.

JIM AVILA: I mean, he ...

(Overlapping Comments)

ANDREW THOMAS: They're just not allowed to do that. I mean, that's
(Inaudible) ...

JIM AVILA: He did accept the plea.


JIM AVILA: Of showing a Playboy magazine to another 16 year old. What he
didn't accept was exactly what you're doing now…trying to stain the boy
with child pornography ...


JIM AVILA: ... charges ...

ANDREW THOMAS: I disagree.

JIM AVILA: .. that you could not prove. That's what he says right here.

ANDREW THOMAS: I disagree. Well, with all due respect to the judge it's
his job not to accept a guilty plea if he really thinks that the person
is innocent.

JIM AVILA: And you know what he did?

ANDREW THOMAS: That's his job.

JIM AVILA: You know what he did?

(No response heard.)

JIM AVILA: He invited the defense attorney to appeal. And he did appeal.


JIM AVILA: And within days, the judge overturned it and said ...


JIM AVILA: ... that the plea agreement was not right. Because he
said, that I've read the pre-sentence report, and my memory of the
comments that went back and forth about the underlying discussions for a
factual basis of this pleading are perhaps a little bit different
than what the state articulated.

ANDREW THOMAS: (Laughter) So the judge admitted a mistake.

JIM AVILA: What he said was, you guys have been have agreed to this
plea agreement. The state won't do anything else but this. But
Mr. Defense Attorney, come back to me and I'll take out the sex crime
part. And that's what he did.


JIM AVILA: What does that say about what you guys were trying to do?

ANDREW THOMAS: Tells me the judge admitted he made a mistake. That's all
it tells me.

JIM AVILA: It doesn't tell you that you tried to hold onto a case
you couldn't prove? I guess here's my skepticism about that: here you
are, a hard line guy. You campaign, uh, against this crime. You kept
some kid you believe actually downloaded child pornography, this heinous
crime. You believe you can convict it in court, and you don't do it.

ANDREW THOMAS: Well, we think there's a reasonable likelihood of
conviction. Uh, and that's how we felt when we filed the charges. Now,
you got to understand, in the criminal case, there is give and
take. I mean, the defense attorney is going to come to the prosecutor
and say, "Well, I know you've charged him with X, Y and Z, but are you
aware of this, are you aware of that?" That give and take process
occurred. And he had a uh, had an outstanding attorney who, uh, worked
with our office. Uh, talked to our prosecutor, our staff about various,
uh, issues.

And at the end of the day, we felt that for this particular case, that
was the right outcome. Now, this uh, in fairness, this is very
different from the guy I was talkin' about, uh, and I can give you
more specifics about him as an example of somebody I'd want to throw
the book at. Somebody who's basically trafficking in child pornography,
those guys should go to prison for a long time. I got no sympathy for
them at all.

This young man was different. Now, is it appropriate for us to bring
these original charges? Yes, I think it was. Was the ultimate outcome
appropriate? I think it was, based on all the factors of the case. Can
reasonable people disagree about that because they, you know, they
take a look at it and they think it was maybe too harsh or too light?
I suppose.

But that's what prosecutors are paid to do. We have to try to do
justice in individual cases, that's what courts are paid to do.

ANDREW THOMAS: But the ultimate outcome was what it was. And the
defendant accepts that, the state accepts that, and I'm content that
the appropriate sanction was imposed to hold him accountable, teach
him a lesson, teach him that this isn't fun and games. If you're goin'
to start playing around on pornographic sites, and you come across
child pornography then, you know, you better accept the consequences
of that.

And whatever happened in his case, uh, presumably we'll never know
because, uh, we haven't been able to fully get to the bottom of
that. But, uh, an important lesson was taught here. But justice was
served in that the appropriate outcome wasn't to send this guy to
prison for 50 years. Was to teach him a good, hard lesson so he
doesn't do it again. And that's what happened.

JIM AVILA: The defense attorney didn't agree to a plea that said this
boy committed child pornography ...


JIM AVILA: ... in any way.


JIM AVILA: Okay? He didn't do anything unethical. He did agree to a
plea of a boy who took a Playboy magazine to school.


JIM AVILA: Showed it to 16-year-olds.


JIM AVILA: A charge which we've not been able to find has ever been
leveled against anybody in this county ...


JIM AVILA: ... before.

ANDREW THOMAS: Yeah, I don't know. It may have, it may have been a while.
It's certainly not one that we bring commonly. But again, to
explain, uh, how you reach that plea agreement, if you've decided that
somebody is going to plead to, instead of a Class Two felony, it's a
Class Five felony, or a Class Six undesignated felony, then to reach the
plea agreement that can then be entered into court, I mean, not to be
too technical about it, but you've got to find a Class Six felony that
fits the factual description of what happened so that you can go into
court and you can say, "On this date, this is what I did" and the judge
can examine the facts and accept a guilty plea.

So, while this would have been an unorthodox thing to a person to plead
to, uh, that it's because of the common desire of prosecution and
defense to reach a just outcome in looking for a Class Six undesignated
felony that fit this fact pattern. And that's, uh, that's how
we reach this point. And, uh, but for the record, you know, these kids
really shouldn't be takin' (Chuckles) Playboys to school.

Uh, not that, uh, we have some big crackdown here on that but, uh but
the law is on the books, and maybe it's on the books if only to
allow us, in cases like this, to properly dispose of the case.

Copyright 2007 ABC News Internet Ventures

For a video link of ABC News on this case, please go to:

[TELECOM Digest Editor's Note: First, for anyone still reading this, I
do suggest you look at the above video for more details. And it would
seem to me the _only_ reason police insisted on the watered down
charge of 'distributing pornography' was so they did not have to go
away empty-handed. As any police officer would tell you, it is quite
essential to neutralize anyone who might otherwise try to sue you for
false arrest charges. Myself, I would have pleaded not guilty and
stood on that position until hell froze over (which it almost has here
today in Independence, sheets of ice on everything after the weekend
ice storms), but in any event I would have given them nothing, nada,
no matter how long it took or how much it cost. And one favorite trick
of pedophile hackers, as we learn in the video, is to keep their _own_
computers clean at all times, storing their stuff on _someone else's_
computer instead, as apparently happened in this case. And, IMO, shame
on Yahoo for sticking their nose into the mess. PAT]

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