The down side of judging

Practice area:

If you’ve ever fantasized about moving to the other side of the bench, a recent First Circuit decision coming out of Maine highlights what to me would be one of the worst parts of putting on the robe – having to look at child porn.  U.S. v. Ross.

I once had to look at (relatively) very tepid child porn to adjudicate with the other Board members on Board of Bar Examiner proceeding.  That stuff sticks with you and if that’s a part of the judging job that comes up a lot, count me out.   .

In Ross, the defendant was convicted of possession of child pornography under 18 USC s. 2252A(a)(5)(B).  He argued on appeal that the district court (Judge Woodcock) erred by not viewing the material before ruling that it was admissible.  Because the defendant stipulated that the material was child pornography (his defense was he didn’t download it), he argued it was unfairly prejudicial to let the material in. 

The appeal was rejected on waiver grounds.  When the trial court denied the motion, it did so given the limited number of images or videos proffered by the prosecutor.  But it also said that it hadn’t looked at any of it, cited a Third Circuit decision that it described as stating that if contested, the trial judge should look at the material before admitting it, and said if defense counsel thinks the materials didn’t fairly represent the material found on his computers or they were particularly inflammatory, the Court would resolve the issue after viewing it then.  It said the same thing on the first day of trial, and the trial defense counsel said there was no need to review the images.  That’s what we call affirmative waiver.

 In the course of ruling, the First Circuit said:

Although we believe the better practice is for a district court to view challenged evidence (as distasteful as it may be) before making a ruling under Rule 403, we set aside the question of whether Rule 403 requires this step. In any case, the evidence against Ross was overwhelming, and any error was, at best, harmless.

So I guess this means whenever defense counsel makes a Rule 403 motion, the trial judge has to look.  If it’s allowed in, the poor jury has to see the materials, so I guess that’s just the lay of the land. 

The courts, judge and jury, confront the nasty underbelly of “civilization” in a lot of areas, not just criminal cases – child protection and parental termination matters, elder abuse in probate – the list goes on and on.  If this is what it takes to fight the evil in the world, then I guess we all have to cowboy up, look that nastiness in the eye and shovel away at the manure pit of man’s inhumanity to man. 

Still, I wonder, in ruling that the trial judge has to look, did the First Circuit panel (Judges Torruella and Barron and visiting District Court Judge Lisi from Rhode Island) examine these materials?

They didn’t say.