Child pornography cases are hard. The people charged with such offenses often suffer serious mental health conditions or survived traumatic events. Penalties for child pornography offenses are severe. And the images of abuse are terrible—so terrible, in fact, that few defense attorneys would ever want to try a child pornography case to a jury. The theory goes that, once the jurors see the awful images, their desire for recrimination will make consideration of nuanced defenses about the defendant’s intent nearly impossible. United States v. Luck illustrates just how few arrows are in defense counsel’s quiver when defending child pornography cases.
Lindell Luck was charged with possession and distribution of child pornography. Both charges require proof that the images possessed and distributed depict child pornography. In an effort to focus on other elements (and perhaps to minimize jurors’ retributive impulses), Luck offered to stipulate that the images on his computers depicted child pornography. But the government would not agree to this stipulation and insisted that jurors must view the images. When the district court refused to force a stipulation, Luck turned to Old Chief v.United States, 519 U.S. 172 (1997), which held that district courts abuse their discretion under FRE 403 when a defendant charged with being a felon in possession of a firearm offers to stipulate to the prior felony conviction.
Relying on one of Old Chief’s footnotes, which said the holding was limited to proof of a defendant’s felon status, the Sixth Circuit and the district court rejected Luck’s request. Felon status, the court reasoned, is a unique element of 18 U.S.C. § 922(g) because the fact of conviction is all that matters, not the nature and circumstances leading to the conviction. The prior conviction is essentially a side show that pre-dates the defendant’s new criminal conduct. In contrast to a defendant’s felon status, the nature of the images is critical to the story of the offense. The Sixth Circuit believed jurors might be confused if a court simply told them the files on Luck’s computer include images of child pornography. The court further believed the jury could consider the content of the images to evaluate whether Luck knew the images he distributed were child-pornographic. Worse yet, the court explained, a stipulation may unmoor the jury’s task “to sit in judgment” and understand the “human significance” of the defendant’s judgment. The court did not mention the fact that, unlike a capital case, the jury plays no role in sentencing. Apparently, the jury must be convinced that people, in fact, download and distribute child pornography. And so, there is little defense counsel can do to ensure jurors can set aside their emotions after viewing these terrible images.
Luck includes other important discussions about whether a person is “in custody” when FBI agents come knocking at the door. In short, the Sixth Circuit endorses the view that, unless officers are yelling or brandishing weapons, if a person is in his own home and officers say that the interrogee is free to leave, then no reasonable person could believe he is under arrest. In reaching this conclusion, the court sanctioned the exclusion of testimony by the other people present during the questioning who would say that the FBI agents’ demeanor, tone, and general affect gave the distinct impression nobody was free to leave. Also irrelevant to the in-custody inquiry was the fact that Luck was under the influence of various medications that cause him to feel like a character on The Walking Dead for a few hours after waking because nothing in the record suggested that the officers were aware Luck was under the influence.
The Sixth Circuit also approved of the exclusion of any testimony about why exactly Luck took those medications. Luck was diagnosed with leukemia when he was eight years old. He survived three years of chemotherapy and at least one botched chemotherapeutic session. Since that time, he has struggled with joint pain, memory retention, and basic skills like reading and writing. The jury was not permitted to hear any of that back story because the district court feared it would distract the jury from the task at hand: deciding whether to believe Luck’s confession was true and freely given. The Sixth Circuit agreed.
Finally, in an attempt to plant some reasonable doubt, defense counsel tried to call Luck’s father to the stand. The plan was to ask dad a few introductory questions, but when the direct examination ventured into topics like who downloaded and distributed the child pornography, he would invoke his Fifth Amendment privilege against self-incrimination. This, the Sixth Circuit said, defense counsel cannot do when the witness and defendant have a familial relationship. The fear is that the father may try to take the fall for his son.
In sum, Luck’s convictions and 78-month sentence were affirmed. And defendants tried with child pornography offenses are likely out of luck if they want a jury trial.