Argued June 1, 2009
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. SGJ568-08-5.
Anthony A. Picione, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General, attorney; Mr. Picione and Robert C. Rowbotham, II, Deputy Attorney Generals, of counsel; Johanna Barba Jones, Deputy Attorney General, on the brief).
Mark H. Tuohey, III (Vinson & Elkins) of the District of Columbia bar, admitted pro hac vice, argued the cause for respondent (Rogut McCarthy and Mr. Tuohey, attorneys; Mr. Tuohey, Andrea L. Surratt (Vinson & Elkins) of the District of Columbia bar, admitted pro hac vice, Daniel J. McCarthy and Colleen E. Patterson, of counsel and on the brief).
Gibbons P.C., attorneys for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Lawrence S. Lustberg, on the brief).
Before Judges Carchman, R. B. Coleman and Sabatino.
This appeal requires us to balance the competing interests of a criminal defendant who seeks discovery of materials that go to the essence of the underlying charged offenses, with the public interest in prohibiting the dissemination of the same materials — contraband child pornography. The trial judge fashioned a protective order that, by its terms, provided for defendant's discovery of the relevant materials but established strict guidelines that limited access and use of the materials. We conclude that while the State of New Jersey's concerns focus on the possibility of misuse of the materials, the judge's order recognizes these concerns and establishes procedures to minimize such eventuality. Accordingly, we conclude that defendant is entitled to discovery under the terms of the protective order and affirm.
By leave granted, the State appeals from the protective order permitting defendant Neil Cohen discovery of the alleged child pornography that provides the underpinnings for the criminal charges lodged against him. While the State does not dispute that defendant is entitled to discovery of such evidence, it challenges the manner and methodology of transmission and examination of the purported evidence.
In the carefully crafted protective order of March 23, 2009, Judge Council balanced the protected rights of a defendant to discovery under Rule 3:13-3 with the legitimate policy of minimizing the dissemination of child pornography to ensure that the victims of such unlawful conduct are not re-victimized through court-sanctioned access. Since both the State and defendant agree that the defense is entitled to inspection and testing of the discoverable materials, the sole issue in dispute is which party maintains control of the discovery while it is being reviewed and tested by the defense. The State is willing to make the materials available to defendant but asserts that it must retain ultimate control, even during the discovery process, to minimize the possible improper dissemination of child pornography. Defendant claims that the order addressed the State's concerns and the defense should control the discovery during the pendency of the case.
We briefly set forth the relevant facts informing our consideration of the issues. In July 2008, New Jersey State Police began investigating allegations that defendant, a former State Assemblyman, had used his office computer to view child pornography. Within a month, the police seized suspected pornographic matter, including eleven computers from defendant's legislative office, and commenced a forensic examination of the contents of the computer hard drives. The investigation and examination sought to determine whether defendant had been visiting child pornography sites. As part of their investigation, officers entered web sites for child pornography that had been accessed through the confiscated computers. The investigation continued, and sixty-two images were transmitted to and reviewed by the State's expert, Dr. Robert L. Johnson.
On December 17, 2008, defendant was indicted by the State Grand Jury for second-degree official misconduct, N.J.S.A. 2C:30-2; second-degree endangering the welfare of a child (reproducing child pornography), N.J.S.A. 2C:24-4(b)(4); second-degree endangering the welfare of a child (disseminating child pornography), N.J.S.A. 2C:24-4(b)(5)(a); and fourth-degree endangering the welfare of a child (possessing child pornography), N.J.S.A. 2C:24-4(b)(5)(b).
Discovery commenced, and on March 10, 2009, the judge ordered the State to produce copies of all the computer images and data obtained during the investigation. The State moved for reconsideration and for a stay. On March 23, 2009, the judge denied the State's motions, but granted an extension for production of the images until April 2, 2009. The judge also entered a protective order, which included detailed provisions and safeguards for the defense's handling of the computer images and data. Included were limitations on those having access to the materials and further provisions regarding access during the discovery process.
The order contains thirteen decretal paragraphs. To summarize, the order requires the State to provide two copies of the computer images and data to defense counsel and that such material not be "copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded" or used for any purpose other than the prosecution or defense of this action. The defense must use a dedicated, non-networked computer to view the materials and keep the materials and the computer locked and secure when not in use. The materials must be conveyed to and among defense counsel and defense experts by hand-to-hand delivery, and at the conclusion of the matter, the materials be transferred back to the State in the same manner. Anyone viewing the materials on behalf of the defense would be subject to and furnished with the order, and any retainer agreement between defense counsel and their experts would include a provision certifying that the expert acknowledges the terms of the order. Defendant would not be permitted to view the materials outside the presence of defense counsel. Finally, at the conclusion of the matter, the parties are to agree on specific procedures to ensure that the materials are completely and irretrievably deleted from any computers on which the materials were viewed.
The State, thereafter, moved for leave to appeal and for a stay pending the outcome of the interlocutory appeal. We granted both motions and ordered the appeal accelerated. On April 23, 2009, while the appeal was pending, the State offered to have
a representative bring the contraband to defense counsel and/or their representatives to view at their offices, but on a State-owned computer that could be sanitized afterward. Both the images and the computer would be retained by the State except when being actually viewed.
That offer remains extant.
On appeal, the State raises two issues: 1) did the court err by ordering the State to reproduce and deliver the evidence of child pornography to defendant; and 2) was the court's protective order sufficient to ensure that the child pornography would not be disseminated.
As we noted, the focus of the State's primary argument is that the court erred by ordering it to deliver images of child pornography to the defense. The argument is premised on the theory that if the images are released to the defense, the State can no longer be assured that the images will not be illegally reproduced and disseminated, which would cause harm to any child depicted in the pornography.
Rule 3:13-3(c) provides in part:
Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of ...