South Dakota Case Sends Warning to Lawyers Representing Child Pornography Defendants

Sioux Falls, South Dakota criminal defense attorney Leo Thomas Flynn was acquitted of two counts of possession and one count of distribution of  child pornography by a federal jury last month in a case that many legal observers say will have a chilling effect on lawyers who assist defendants facing child pornography charges.  Flynn, who was in the process of researching a matter involving his client facing child pornography charges, found himself being investigated and charged under federal anti-child pornography statute 18 U.S.C. sec. 2252.   Despite a South Dakota’s immunity statute that protects attorneys from prosecution for possession of child pornography if it’s possessed in the course of their official duties, federal prosecutor’s declined to honor the immunity statute and charged Flynn.  U.S. District Judge Lawrence L. Piersol agreed that the South Dakota statute could be a defense for the possession charge, but not the charge involving the distribution counts.  Flynn’s defense counsel needed to show that Flynn was acting in the course of his official duties  during the time period when the images were found to have been downloaded to Flynn’s work computer, and that Flynn did not knowingly distribute the illegal images.  Complicating the alleged distribution matter was attorney Flynn’s lack of understanding of how the peer-to-peer file sharing software Limewire works in its default mode – that is, any images Flynn downloaded in the course of his research was visible to other Limewire users.  The federal jury acquitted Flynn after a six-hour deliberation but legal observers believe that lawyers taking on child pornography cases acting in good faith under state statute will now fear prosecution by the federal government.   Experienced criminal defense attorneys recommend absolutely avoiding looking at the material the client is accused of possessing, or in the alternative, if you need to access images in an active federal child pornography case, request that the FBI assist you with obtaining the images in question.

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