Adam Walsh Act - Access to Evidence Cases

This post is Part I in a series that is explained here.

Access to evidence has been the most litigated issue under the Act.  This is not surprising as discovery issues are the first to come up and are relatively easily addressed by a judge.  These are the opinions thus far:

US v. Knellinger, 2007 U.S. Dist. LEXIS 5825 (E.D. Va. Jan. 25, 2007) – Defendant sought mirror image of his seized hard drive containing alleged child pornography but was barred from doing so by the government under 18 U.S.C. § 3509(m).  The court held that: 1) the passage of the Act overriding Federal Rule of Criminal Procedure 16 did not offend the Rules Enabling Act; 2) the Act’s alleged usurpation of judicial discretion did not violate the separation of powers; 3) the Act’s limits on access to evidence did not facially violate the constitutional guarantees of a fair trial; and 4) as applied, the government did not provide “ample opportunity” for the defendant’s experts to review the hard drive in order to construct a virtual child pornography defense.  Accordingly, the court ordered a copy of the hard drive be made for the defendant.

US v. O’Rourke, 470 F.Supp.2d 1049 (D. Az. Jan. 17, 2007) – Defendant sought mirror image of his seized hard drive containing alleged child pornography but was barred from doing so by the government under 18 U.S.C. § 3509(m).  The court held that: 1) the argument that the defense attorney was the “court” by virtue of being an “officer of the court” was without merit; 2) the contradiction between Federal Rule of Criminal Procedure 16 and the Act was legally irrelevant because the Act override the Rule; 3) the facial due process challenge failed because the defendant could not show “reasonabl[e] availab[ity]” was a constitutionally insufficient standard; and 4) the as applied challenge failed because the defendant’s arguments were purely hypothetical and he did not show that he had not been afforded “ample opportunity” to have an expert examine the hard drive while under government control.

US v. Butts, 2006 U.S. Dist. LEXIS 90165 (D. Az. Dec. 6, 2006) – Defendant sought mirror image of his seized hard drive containing alleged child pornography but was barred from doing so by the government under 18 U.S.C. § 3509(m).  The court held that: 1) the Act did not violate the Ex Post Facto Clause because its limits on access to evidence was not punitive; 2) there is no separation of powers issue because Congress defines the ability of a defendant to have access to evidence; 3) the Act’s limits on access to evidence did not facially violate the constitutional guarantees of a fair trial; and 4) the as applied challenge failed because the defendant’s arguments were purely hypothetical and he did not show that he had not been afforded “ample opportunity” to have an expert examine the hard drive while under government control.

US v. Johnson (II), 456 F.Supp.2d (N.D. Ia. Sept. 27, 2006) – Defendant sought mirror image of his seized hard drive containing alleged child pornography but was barred from doing so by the government under 18 U.S.C. § 3509(m).  The Court held that 1) the Act’s limits on access to evidence did not facially violate the constitutional guarantees of a fair trial; 2) as applied, the defendant’s claim that he could not find an expert to perform the examination under government control with the $500 approved for hiring an expert did not raise constitutional questions for the Act.

US v. Johnson (I), 456 F.Supp.2d (N.D. Ia. Sept. 25, 2006) – Prior to arguing his access to evidence argument, the Defendant advanced a related argument that the Act prohibited display of child pornography in the courtroom in order to protect the child victims from further violations.  The Court held that such a claim based upon the intent section of the Act was contrary to the language and purpose of the Act.

US v. Burkhart, 2006 U.S. Dist. LEXIS 58647 (W.D. Pa. Aug. 21, 2006) – Defendant sought mirror image of his seized hard drive containing alleged child pornography but was barred from doing so by the government under 18 U.S.C. § 3509(m).  The court held that: 1) the Act applied retroactively to a case still pending before the court; and 2) the cost and effort required to have an expert review the hard drive under government control did not mean the defendant was given “ample opportunity” to review the hard drive.

US v. Glembin, 2006 U.S. Dist. LEXIS 63514 (D. Nv. Aug. 21, 2006) – Defendant sought mirror image of his seized hard drive containing alleged child pornography but was barred from doing so by the government under 18 U.S.C. § 3509(m).  The court held that the government’s willingness to provide “ample opportunity” for the defendant to review the hard drive under its control meant the Defendant’s motion was denied.