Monday, July 28, 2003
Copyright © Las Vegas Review-Journal

ARREST THREAT: Child porn copies lead to conflict

Attorney accused by prosecutor

Attorney Jonathan MacArthur says Clark County prosecutor Becky Goettsch threatened to have him arrested, even though District Judge Lee Gates had authorized MacArthur to possess alleged child pornography photos in order to assist his client's defense. Photo by Clint Karlsen.

A local attorney who is assisting a child pornography suspect in his legal defense says a prosecutor threatened him with arrest for possessing photos entered into evidence in the case.

Attorney Jonathan MacArthur said the threat was made by Clark County prosecutor Becky Goettsch, even though District Judge Lee Gates previously authorized MacArthur to possess alleged child pornography photos in order to assist his client's defense.

"She crossed the line, way over the line," MacArthur said.

MacArthur said when Goettsch didn't like Gates' ruling, she then took it up with another district judge. That judge, Michelle Leavitt, threatened to hold MacArthur in contempt.

Goettsch did not respond to a phone call left at her office Thursday seeking comment, and court spokesman Michael Sommermeyer said Leavitt is prevented from commenting on pending criminal cases.

Goettsch's supervisor, Chief Deputy District Attorney Doug Herndon, said Goettsch's actions were appropriate given the nature of the case.

Herndon said the law views child pornography as contraband, much like illegal narcotics, meaning that no one is allowed to possess it except for law enforcement.

"It is our habit that even we don't get the child porn. You look at it, then it goes right back to the police," Herndon said.

He said prosecutors never prevented MacArthur or his client from accessing the materials.

"We tried to be very accommodating about this," Herndon said.

The controversy stems from the case of Wiley Wilson, also known as John Raymond Kruidenier. He is charged with four counts of possession of child pornography and four counts of use of a minor in the production of pornography.

The state contends that Wilson used a 10-year-old girl to produce child pornography.

Wilson is representing himself, and MacArthur was appointed to assist in his defense.

The case was before Judge Gates and Wilson, acting as his own attorney, asked for copies of the photos of the girl. Prosecutors balked and Gates denied the request. But he did order the prosecution to give copies of the photos to MacArthur to allow Wilson to have access to them if necessary.

Under the law, defense attorneys are supposed to have access to evidence gathered against their clients to ensure fair proceedings. The process is known as discovery.

According to MacArthur, Goettsch, during an appearance before Gates, mentioned state law deeming child pornography as contraband. He said Goettsch raised the premise that MacArthur could be criminally charged despite the judge's order.

"Judge Gates said that law could not possibly apply," MacArthur said.

MacArthur said Goettsch continued to protest but Gates wouldn't hear it.

In the order for the state to copy the photos for MacArthur, Gates gave specific instructions. He ruled that the eight photos in question were to be returned to the clerk of court immediately after the case was concluded.

Gates also said the photos were not to be copied or disseminated outside of MacArthur's office, and they were not to be given to the defendant.

Wilson's case then was scheduled to be tried before Gates on a date when Gates was on vacation. That meant the case was randomly reassigned to another judge. That judge was Leavitt. According to court transcripts, Goettsch on Wednesday raised the issue with Leavitt about MacArthur having possession of the photos.

"It is really illegal for anyone to have copies of this child pornography, even if it is standby counsel, and since he's had time to investigate ... I would ask they be returned," Goettsch argued.

MacArthur objected.

"You don't need them," Leavitt told the defense attorney.

MacArthur continued to protest, pointing out Gates' order.

"I know what the order says, but what I'm telling you is that these pictures are here, they are marked as evidence, and you can look at them anytime," Leavitt said. "There is no compelling reason for you to keep copies."

MacArthur said he was entitled to copies of the photos as a matter of legal fairness.

"Here's my position," Goettsch said. "If Mr. MacArthur wants to have the detective come back and do a search warrant and get the pictures and charge him with possession of child pornography. ..."

"I would like to see the state do that," MacArthur said.

Leavitt ordered MacArthur to give the photos to her clerk, and he complied.

Fellow defense attorneys labeled Goettsch's threat of arrest as outrageous.

"It's infantile, it's wrong and it's petty," said Lawrence Goldman, president of the National Association of Criminal Defense Lawyers.

"There should be some common sense here," Goldman said. "It's either prosecutorial mania, an obsession with child pornography, or it's an opportunity for a prosecutor to be a jerk."

Las Vegas defense attorney JoNell Thomas, speaking on behalf of the American Civil Liberties Union of Nevada, called Goettsch's threat "insane."

"The tactic of threatening to have criminal defense attorneys arrested for doing their job is outrageous," she said.

Goldman said under the state's theory, isn't "the prosecutor disseminating porn when (she gives) the photos to the jurors?"

But Herndon said the intentions of Goettsch and his office are clear, to protect victims of an insidious crime, and to keep the photos from being disseminated.

"This isn't random child porn," Herndon said. "This is a known victim. I have not really encountered a defense attorney who wanted to possess child porn."

MacArthur said that comment is "a cheap shot." Whether the prosecution agrees with him or not, he said he is simply doing his job.