Douglas County District Attorney David McDade has estimated he has given the tape to about three dozen people -- including reporters, lawmakers and members of the public -- after receiving open records requests, according to The Associated Press. He told the AP Georgia's open records law requires him to do so.
That stance is supported by the Prosecuting Attorneys' Council of Georgia, which in response to a query from McDade issued a July 5 memo concluding, "[I]f no one has filed for a protection order ... claiming that disclosure of the video tape would invade individual privacy, we can find no reason why disclosure of the video tape is not required under ... the Open Records Act."
The council said in the memo, which it provided to CNN, that Georgia's open records law contains no exemption for material considered child pornography.
However, David Nahmias, U.S. attorney for the Northern District of Georgia, said earlier this week: "We have advised that the videotape at issue constitutes child pornography under federal law and should not be knowingly distributed, received or possessed outside of law enforcement and judicial proceedings."
Nahmias said Tuesday that federal laws prohibiting the distribution or possession of child pornography "are intended to protect the children depicted in such images from the ongoing victimization of having their sexual activity viewed by others, potentially for years to come. ... These federal laws trump any contrary requirement of the state's open records act that may exist."
I think that legal conclusion is right, but I still doubt that the U.S. Attorney's office has the political will to prosecute a sitting state prosecutor for child porn crimes related to the tape distribution. However, this particular prosecutor has made some dumb moves in the past as Above the Law has detailed (HT: Sentencing Law & Policy). Doug Berman and Glenn Reynolds both are wondering whether McDade is the new Nifong. Nifong has certainly been punished by the state ethics committee, but McDade could raise the bar for punishing rogue prosecutors if the U.S. Attorney goes forward with a criminal prosecution.
I just can't help but think of the incongruence that the Adam Walsh Act so severely limits a defendant's access to examining child pornography evidence used against the defendant while a prosecutor may get away with distributing the tape to the public. The very clearly stated rationale for limiting the defendant's access to child pornography evidence is that to do so is a form of revictimization. If a single defendant viewing child pornography evidence (that a guilty defendant would have already viewed many times previously) is revictimization enough for adopting a very suspect restriction on defense access to evidence, then surely a prosecutor who allowed dozens or hundreds of people to view such evidence has revictimized on such a greater level that some legal sanction is required.