"The whole thing is just dirty," said Pierce County Sheriff's Detective Ed Troyer on Wednesday. "Now that victims know he's going to be watching this, they're going to feel victimized again. This is our call to action to get the law changed."
Washington's Supreme Court ruled in 2007 that upon request, prosecutors must give defense lawyers copies of evidence used to support child pornography charges - but it appears nevertheless rare that defense attorneys actually make that request.
The court's 8-1 decision said that granting copies of the materials was essential so that defense lawyers, their investigators and the defendants themselves could challenge the evidence - such as by arguing that the people depicted weren't really minors.
The high court set out guidelines for handling the material, saying that it should only be shown to defendants under the supervision of counsel, that defense attorneys would be personally liable for any unauthorized distribution, and that the material had to be promptly returned to law enforcement once the case concluded.
But the former pilot, Marc Weldon Gilbert, is representing himself. The judge in his case has allowed him to view the materials at the jail, and issued a ruling this week clarifying how those materials should be handled for security reasons.
The judge barred him from being alone when he reviews the videos and other evidence, set out on more than 100 compact discs.
He reviews them in a room visible to corrections officers with a defense investigator present, Troyer said. The jail requires him to turn his computer screen away from any doors or windows so other inmates don't see.
Gilbert used money, alcohol and manipulation to sexually exploit more than a dozen boys as young as 10 years old. He pleaded guilty in 2009 to federal charges, including sexual exploitation of a child, in exchange for a 25-year sentence. He still faces state charges in Pierce County.
Criminal defendants generally have a constitutional right to see the evidence against them so they can prepare for trial. That's always been a sensitive issue in child pornography cases, where many people are troubled by the notion that perverts might be allowed to continue viewing the illicit material that got them in trouble in the first place.
"We have to disclose when we intend to introduce cocaine in a drug case, but we don't give the defendant a kilo to take home and check out," Pierce County Prosecutor Mark Lindquist said. "It is not necessary for the defendant to view the child porn himself to assist in his defense."
Even though the state Supreme Court has explicitly clarified that defendants can view the child porn involved in their cases, it appears to be a rare occurrence. Lindquist said he knew of no other instance in Pierce County, and Dan Donohoe, spokesman for the King County prosecutor's office in Seattle, said defense lawyers there typically review such evidence without their clients present.
Jack King, a spokesman for the National Association of Criminal Defense Lawyers, said that in most states, defense lawyers are typically required to come to a law enforcement office to review evidence in the case, rather than being given copies to review with defendants. He called that problematic.
"It's very helpful in any kind of case to have a defendant go over the evidence with you," he said. "The defendant can say, `That's pure Photoshop,' or `These are all adults."'
But even some defense attorneys questioned the necessity of having the defendants review the porn personally. Tom Hillier, who heads the federal public defender's office in Seattle, said that in federal cases, defendants are never allowed to review the material, and he didn't see any reason why they should.
"We set up a discovery conference with a prosecutor," he said. "You meet with an agent, do a viewing of however much you want to look at, and focus on things that might have an impact under the sentencing guidelines or on the case. If you have a question about authenticity or anything else, you can file a request to have independent examination by an expert. It's done under fairly tight controls to be sure that the porn doesn't get out of the control of the government."
