Prosecution serves as warning

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By Michelle Lore
Minnesota Lawyer

When Anoka, Minn. criminal defense attorney Rory Durkin got a call from a South Dakota attorney who was being indicted for possession and distribution of child pornography, he jumped at the opportunity to represent a fellow bar member.

“I was shocked and surprised that the federal government was pursuing the prosecution,” Durkin said. “I told him I’d give him a fight because I felt passionate about it. And I did.”

Leo Thomas Flynn, a 61-year-old criminal defense attorney from Sioux Falls, S.D., was accused of possessing and distributing child pornography from his work computer. Flynn admitted he had accessed – but not saved – such images and contended it was client-related research.

Flynn practices regularly in federal court in South Dakota, so to avoid a conflict the case was prosecuted by the Minnesota Office of the U.S. Attorney. The office was assisted by the Department of Justice.

After four days of trial and six hours of deliberation, a federal court jury in Sioux Falls found Flynn not guilty last month.

Some criminal defense attorney see the case as a warning: No matter how tempting it may be to access the images a client or potential client is accused of possessing or distributing, don’t do it.

Frederic Bruno, a criminal defense lawyer from Minneapolis, called pornographic images of children a “forbidden substance,” much like illegal drugs.

“You should never be afraid to take a child pornography case, because there are a lot of defenses,” he said. “But never go poking around on your own.”

Durkin said the case was “a brutal fight.”

“It was incredible,” he said. “Rarely in my career have I seen a prosecution so focused on obtaining a conviction.”

The assistant U.S. Attorney on the case, Richard Newberry, could not be reached for comment.

A lesson on LimeWire

Flynn’s troubles began as he was leaving his office on July 21, 2009. He was approached by law enforcement officials who informed him they had a warrant to search his office for child pornography. Flynn did not deny accessing such images on his work computer, but contended he was doing research for a potential client and investigating the availability or existence of child pornography on the LimeWire network.

“It’s reasonable to conclude that a person would contact a lawyer about inadvertently downloading child pornography because it’s a problem with these peer-to-peer software systems,” said Durkin.

Flynn refused to identify the client, arguing that his identity was protected by the attorney-client privilege. He was then indicted for two counts of distribution of child pornography and one count of possession of child pornography in violation of 18 U.S.C. sec. 2252.

South Dakota and more than 20 other states, including Minnesota, have enacted statutes that immunize attorneys from prosecution for possession of child pornography if it’s possessed in the course of their official duties. (Minnesota’s statute is Minn. Stat. sec. 617.247, subd. 5.) But there is no parallel federal statute.

Durkin said it was clear early on that the federal prosecutor would not honor South Dakota’s immunity statute. He decided to try to get the judge to apply the protections of SDCL 22-24A-19 to a federal prosecution and instruct the jury accordingly.

Eventually, Judge Lawrence L. Piersol determined that an attorney acting in accordance with the state’s immunity statute is not precluded from asserting the operation of the statute as an affirmative defense in a federal child pornography prosecution if the evidence at trial supports such a defense. However, he said the defense would not be available for the distribution counts.

Durkin proceeded on several fronts. First, he needed to prove that Flynn was acting in the course of his official duties during the time periods in which the images were found. He also wanted to show that Flynn had none of the characteristics often associated with individuals accused of these types of offenses.

Durkin’s second goal was to show the jury that Flynn did not knowingly distribute child pornography over the Internet. Flynn, admittedly lacking in Internet savvy, contends he was not aware that LimeWire’s default settings automatically set up a shared folder that others can view and download from. Thus, he had had no idea that people could go onto his computer and download anything that he had previously downloaded from LimeWire.

Durkin requested that an appropriate definition of “distribute” be included in the jury instructions.

Distribute is an action word meaning to give or deliver, Durkin said, but Flynn took no action. “They – law enforcement – took it from him. He did nothing.”

On Dec. 17, the 12-person jury found Flynn not guilty on all counts.

Chilling effect

Even though Flynn was cleared of the charges, some criminal defense attorneys fear the case could stifle the availability of representation for people confronting child pornography charges.

“If the defense attorneys and/or their computer experts are going to be charged in federal court for the possession of child porn when it is in relation to the defense of a case, despite the state immunity statute, this will cause a chilling effect,” said Carolyn Agin Schmidt, a criminal defense attorney in Minneapolis. “It is imperative to the defense to properly analyze the evidence, and to prohibit the lawyer from doing so is denying the defendant the due process he is entitled to under the state and U.S. constitutions.”

Durkin agreed that the case could have a dramatic and chilling effect on lawyers wanting to take child pornography cases.

“If somebody is acting in good faith under state statute, they can still be prosecuted by the federal government,” he said.

Earl Gray, a criminal defense attorney in St. Paul, said the best way to avoid the situation is have clients describe what’s on their computer and what they are accused of viewing. Absolutely avoid looking at the stuff yourself, he said.

If an issue arises and you need to access images in an active federal child pornography case, Gray suggested contacting the FBI, which is generally helpful in assisting defense lawyers in this regard.

Anoka criminal defense attorney Michael Brandt noted that it’s also important to be up to date on Internet capabilities.

“Any attorney handling these types of cases should be, in my opinion, tech savvy enough to know how this stuff gets on their computer,” Brandt said.

Michelle Lore can be reached at [email protected].