Appeals Court Overturns Sentence Based on Faulty Science in Child Pornography Case

January 31, 2011 by David S. Seltzer

An unusual decision to re-sentence a child pornography possession defendant caught my eye as a child pornography lawyer. According to a Jan. 28 article from the New York Times, the Second U.S. Circuit Court of Appeals has overturned a 6 1/2-year sentence for a man convicted of one count of child pornography possession. The decision does not mean that Gary Cossey will not go to prison, but he will be re-sentenced by a different federal judge after the appeals court found that the original judge’s fairness was in doubt. That judge, Gary L. Sharpe of the Albany federal district courts, reportedly gave Cossey a long sentence under the theory that he was likely to re-offend, “because of an as-yet undiscovered gene.”

Cossey pleaded guilty to one count of child pornography possession in late 2009. The circumstances of the case were not reported, but he was apparently caught looking at child pornography even after an FBI investigation. At his sentencing, Cossey said he was in therapy and finding it helpful, and his criminal defense attorney presented two psychological reports suggesting he was at low to moderate risk of offending again. Sharpe reportedly told Cossey at the sentencing that those opinions were “virtually worthless” because sexual desire for children is “a gene you were born with. And it’s not a gene you can get rid of.” Sharpe predicted the discovery of such a gene in the future. The Second Circuit sharply reprimanded the judge with a ruling saying “it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics,” and that the decision cast doubt on the fairness of the entire system.

No decision has yet been made about how long the new sentence for Cossey might be, and it’s hard to speculate without knowing the details of the case. But as a child pornography attorney, I suspect Cossey fought the 6 1/2-year sentence in the first place because it was well over what he and his lawyer expected under the circumstances. Child pornography offenses are notorious for being harshly punished, thanks in part to a “tough on crime” Congress that has given judges little wiggle room. But as this case shows, judges don’t always use their discretion correctly. Regardless of what we think of any particular crime, it cannot be acceptable for judges to sentence defendants based on their opinions about what science might find in the future. Allowing this is tantamount to allowing sentences based purely on the judge’s personal prejudices. As a child porn lawyer, I know how important it is to hold judges to a higher standard than that -- because defendants charged with child pornography and online solicitation are rarely popular.

Seltzer Law, P.A., focuses its practice on defending people accused of cyber crimes, including child pornography crimes, online solicitation of a minor and more. If you’re facing this kind of charge, don’t wait to call our experienced attorneys for help. To set up a meeting, contact us through the Internet or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).