Josh Duggar’s attorneys want hand and feet photos tossed, case dismissed in child porn case

Entertainment

FILE – This undated photo provided by the Washington County (Ark.) Jail shows Joshua Duggar. Attorneys for former reality TV star Duggar filed motions Friday, Aug. 20, 2021 seeking to dismiss child pornography charges against him. (Washington County Arkansas Jail via AP, File)

WASHINGTON COUNTY, Ark. (KNWA/KFTA) — Attorneys for former reality TV star of the TLC show “19 kids and counting” Josh Duggar filed motions to get photos of Duggar’s hands and feet while in custody suppressed and the case dismissed due to the prosecution’s failure to preserve exculpatory evidence.

Exculpatory evidence is any evidence that may prove a defendant’s innocence.

The original motions were filed back on August 20 by Justin Gelfand, Duggar’s attorney, to suppress or dismiss evidence, in particular, photos of Duggar, 33, hands that were taken while he was in custody on April 29, 2021, at the Washington County jail in Fayetteville, Arkansas. Duggar’s defense argues that the prosecution did not obtain a warrant authorizing the photos of Duggar while in custody.

Joshua Duggar
FILE – Former reality TV star Duggar’s trial on child pornography charges has been moved to November. (Washington County Arkansas Jail via AP, File)

The prosecution issued a response to this motion saying the HSI investigator asked Duggar if he could photograph his hands and he consented. The photographs document a scar on Duggar’s hand, which is the same scar in images recovered from Duggar’s electronic devices seized during a search warrant.

The defense argues different angles of his hands were photographed, both hands being photographed when the left hand was the one needed for the prosecution and the depiction of Duggar’s feet along with his hands is enough to have the court suppress the photographs.

Suppression of the photographs is not warranted since Duggar voluntarily consented to them, according to the prosecution’s response citing Pace v City of Des Moines 8th Cir. 2000.

Duggar’s attorneys also contend that law enforcement violated Duggar’s rights because the photographs were taken when legal counsel was not present.

The prosecution says his right to counsel only attaches at critical stages of the proceedings, and the taking of photographs is not a critical stage of the proceedings.

Another motion was filed on the same day where the defense asked the court to dismiss the case based on the prosecution’s failure to preserve potentially exculpatory evidence.

According to the motion, the defense states the exculpatory evidence was three cell phones that were obtained by law enforcement.

The defense claims that one witness, who was in custody, “allowed law enforcement to examine his cell phone during the interview.” Law enforcement did not create a forensic report or forensic image of this device, according to the motion, and the phone was given back to the witness.

In a response to this motion, the prosecution confirmed one witness was manually reviewed by law enforcement and given back the phone without the forensic tool because no evidence of child pornography was found.

The prosecution says the second phone was from a witness who was interviewed in December 2019 and consented to the manual review of the phone’s contents without the forensic tool. No evidence of child pornography was found and the phone was given back.

The third witness’ also allowed their phone to be viewed during the interview with law enforcement. Officers observed no pornographic material and the phone was returned. This witness also was incarcerated during the May 2019 timeframe.

Duggar’s lawyers say in a motion the denial of Duggar’s rights under the due process clause, arising from the Homeland Security Investigator’s failure to preserve evidence from three electronic devices, one of which belonged to a person of interest in the child porn investigation.

The other two belonging to individuals that were read their Miranda rights entails “the failure to observe the fundamental fairness essential to the very concept of justice.”

In this case, the Government’s decision to seize and “manually review” two witnesses’ cell phones, and to “forensically review” one witness’ device, while preserving absolutely no records for Duggar to review, deprives Duggar of his constitutionally guaranteed right of access to potentially exculpatory evidence. For this, Duggar is entitled to the remedy of dismissal if the Government’s failure to preserve this evidence was in bad faith.

Defense court documents show

The information on the three witnesses’ cell phones is not limited to helping Duggar, according to the defense. This could establish that Duggar was “not the only individual who had access to the lot.”

The prosecution says that the defense’s suggestion that they “somehow failed to preserve forensic images copies is baseless.” Two of the phones were reviewed manually, which would not result in a forensic copy, and the third was not imaged either.

The defense argues that this evidence the prosecution possessed for a short time was potentially exculpatory and irreplaceable. The due process clause would mandate the evidence be delivered into the hands of the accused as well, according to the documents.

The prosecution says Duggar has failed to establish his due process rights were violated because image copies have no exculpatory value, law enforcement did not act in bad faith and comparable evidence is reasonably available to him.

Duggar is charged in a two-count indictment alleging one count of receipt of child pornography and one count of possession of child pornography.

Duggar has pleaded not guilty to both counts. He is currently under house arrest under conditions of release staying with a court order custodian.

A motion hearing is set for 9:30 a.m. on September 27 in a Fayetteville federal court. Duggar’s trial is set for 9:00 a.m. November 18 in Judge Timothy L. Brooks’ courtroom.

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