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Circuit Courts May Properly Regulate Defense Access to Computer Hard Drives in Child Pornography Cases, Says WI Court of Appeals


MADISON - In a decision quickly hailed by Attorney General J.B. Van Hollen, the Wisconsin Court of Appeals held today that a Jefferson County circuit judge properly entered a protective order prohibiting defendant Ronald W. Bowser and his defense team from obtaining a copy of a computer hard drive allegedly containing child pornography.  The judge's order allowed the defense access to the hard drive at a State facility, and in accordance with protocols established by the Wisconsin Department of Justice's Division of Criminal Investigation (DCI).


Van Hollen, whose office represented the State of Wisconsin in this appeal, explained:


"In child pornography cases, the children are re-victimized every time someone sees their picture.  Here, the circuit judge entered her order to reduce the possibility that the alleged pornography in this case would fall into the wrong hands.  Bowser and his defense team can work with the hard drive, but at a DCI office and according to our standard protocols.


Today's decision strikes an important balance between a defendant's statutory right to pretrial discovery and the rights of victims."


Jefferson County prosecutors charged Bowser with seven (7) counts of possessing child pornography.  The defense filed a pretrial discovery demand seeking a copy of the hard drive taken from Bowser's computer, which contained allegedly pornographic images.  At the State's request, Jefferson County Circuit Judge Jacqueline R. Erwin entered a protective order that gave Bowser's defense team access to the hard drive, but only at a DCI facility and pursuant to DCI protocols (explained below).  Bowser took a pretrial appeal from that ruling, arguing that the judge erroneously exercised her discretion when she entered the order.


The Wisconsin Court of Appeals disagreed.  From its decision:

At the evidentiary hearing, Special Agent David Matthews of the Wisconsin Department of Justice Division of Criminal Investigation explained the specifics of the protocol.  The protocol is structured to provide access to defense counsel and/or defense experts seeking discovery of child pornographic material. DCI provides a private work space for defense experts, where they can bring in their own equipment, and "install their own tools and devices that they use in their forensic examination of evidence." DCI provides the experts with a copy of the forensic images that they have taken from the original hard drive. The experts are able to consult with defense counsel at the office. However, the work can only be done during normal business hours; an expert will not be able to access the work space during nights or weekends. No internet access is permitted in the room, although telephone and electrical access is provided.

. . . .

We begin with the proposition that it is reasonable for a court to seek to minimize, within its discretion under WIS. STAT. 971.23(1) and (6), the risk of distribution of the type of harmful material at issue here. The serious harms associated with the distribution of child pornography are well known. See, e.g. United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007) (dissemination of child pornography fosters consumer demand that results in creation of more child pornography); United States v. Sherman, 268 F.3d 539, 547 (7th Cir. 2001) ("The possession, receipt and shipping of child pornography directly victimizes the children portrayed by violating their right to privacy."); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002) (child pornography constitutes a permanent record of a child's abuse, publication of which "cause[s] new injury to the child's reputation and emotional well-being."). As the circuit court noted, the advent of digital electronic storage and the Internet have dramatically increased the ease with which child pornography is created and disseminated. Once posted to the Internet, a pornographic image of a child may be further disseminated by file sharing applications, swaps between collectors, and by reposting to other sites.


We agree with Bowser that there is no reason to think that the members of the defense team were any less trustworthy than the members of the prosecution team. Still, we disagree with Bowser that the State must produce evidence that one or more members of a defense team are not trustworthy to show good cause for an order that limits the risk of dissemination of the evidence. The circuit court could have reasonably concluded that the risk of improper use and dissemination increases when more persons possess copies of the child pornographywhether they are government employees or members of a defense team. It follows that it is reasonable to limit the number of persons who possess a copy of the illegal material.


The Wisconsin Court of Appeals's decision in State of Wisconsin v. Ronald W. Bowser, No. 2008AP206-CR, appears on the court's website:


This was a pretrial appeal.  Bowser enjoys a presumption of innocence, and the State must prove his guilt beyond a reasonable doubt at any resulting trial.


The Jefferson County District Attorney's Office represents the State in circuit court proceedings.  Assistant Attorney General Marguerite M. Moeller represented the State in the Wisconsin Court of Appeals.