Proceedings in mandate after superior court denied motion to compel prosecutor to provide copies of material to the defense. William D. Mudd, Judge.
Westerfield requested that the prosecutor provide him copies of all images seized by the police. (Pen. Code,1 § 1054.1, subd. (c).) Refusing the request on the basis that the duplication and distribution would violate the child pornography statute, section 311.1,2 the deputy district attorney nevertheless permitted defense counsel to view the images at the FBI's computer crimes office in the presence of law enforcement representatives who remained in the room and monitored their activities.
Westerfield moved to compel production and copying of the computer and video images so that his attorneys could view them privately, have them examined by experts and talk confidentially.
After reviewing binders of the images provided by the People, the court denied the motion pointing out that (a) the People had agreed to provide Westerfield's attorneys unfettered access to the images and to remove law enforcement personnel from the room during the defense examination of the material, and (b) any defense expert would be able to sift through the material quickly and determine which images the People might seek to introduce at trial.
The court reasoned that it did not have jurisdiction to order the prosecutor to duplicate and/or turn over the images to the defense and the copying and dissemination would violate section 311.l.
Trial is set for May 17.
The cardinal rule of statutory construction is to ascertain the intent of the Legislature and thus effectuate the purpose of the law. We start by looking to the plain meaning of the statutory language and, if further analysis is necessary, apply a reasonable and common sense interpretation and avoid absurdity.
The obvious intent of the Legislature in enacting section 311.1, subdivision (a) was to criminalize the publication and/or distribution of material depicting minors engaged in sexual activities. If the statute extended to the criminal action itself, however, there would be no conceivable way for the state to try these cases or for the alleged child- pornographers to defend against the charges.
Nothing in the plain language of section 311.1 prohibits the copying of the images for use by the defense in preparing for trial. The People's interpretation of the statute -- that the deputy district attorney would violate the law if he copied the images for the defense -- not only defeats the purpose of the law and EXALTS ABSURDITY OVER COMMON SENSE, BUT IT IS ALSO LOGICALLY FLAWED.
Finally, requiring the defense to view -- and apparently commit to memory -- the "thousands" of images at the computer crimes office obviously impacts Westerfield's right to effective assistance of counsel and his right to a speedy trial.
Let a writ issue directing the superior court to vacate its April 25, 2002 ruling and enter an order requiring the prosecution to provide copies of the computer and video images to the defense.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McCONNELL, J.
Filed 5/8/02 Ordered published by the Supreme Court 6/26/02
END OF DOCUMENT
"EXALTS ABSURDITY OVER COMMON SENSE, BUT IT IS ALSO LOGICALLY FLAWED"
You could use that phrase to sum up the entire trial and jury verdict.
Notice the date Ordered published - 6/26/02 - That was the day Judge Mudd told the jury that Feldman had misled them regarding the number of images and therefore he was allowing them to have access to all of the porn during deliberations, if they requested them. Which they did.
Yes that does sum it up. Mudd, and Dusek misled the jury. Reading Dusek's statments makes that exceedingly clear. He tells the jurors that he will show them how this crime happened and when. In the end he has to tell them "We don't know how, when or where, we just know he did." Despite what many here think, if that is the shape of the judicial system today, we are in more trouble than we thought.