- The Washington Times - Saturday, November 4, 2006

RICHMOND — Defense attorneys in a child pornography case contend that a new federal law restricting their access to key evidence is unconstitutional.

Lawyers for David L. Knellinger have asked U.S. District Judge Robert Payne to strike down a provision in the Adam Walsh Child Protection and Safety Act, which President Bush signed in July. Judge Payne will hear oral arguments tomorrow.

The statute, named for the murdered son of “America’s Most Wanted” host John Walsh, toughens penalties for convicted child molesters and requires that they be listed on a national Internet database.

The provision Mr. Knellinger’s lawyers want overturned requires that child pornography “contraband” remain in the possession and control of the government or the court. It specifically directs courts to deny defense requests to copy such contraband, provided the government makes the material “reasonably available” to the defendant.

The law leaves it to judges to decide what is reasonable access.

Ian N. Friedman, the lead lawyer for Mr. Knellinger, said the provision violates his client’s right to effective counsel and his due-process rights by impeding the preparation of his defense. Mr. Knellinger’s lawyers want to have their own experts examine his computer and the images that led to the charges, but they must do it on government property.

“It would be unthinkable for government agents to have to do all their trial preparation in the office of a defense lawyer,” Mr. Friedman said.

He also said the restriction affects attorney-client communication and, in this case, creates logistical and financial burdens by requiring Mr. Knellinger’s lawyers and defense experts to travel from Ohio to Virginia.

Federal prosecutors argue in court papers that the statute’s impact can be addressed only on a case-by-case basis and note that at least one federal court, in Iowa, has already ruled that the restrictions on control and copying child-porn evidence are constitutional.

The U.S. attorney’s office wrote in a brief that the provision “neither prevents communication between attorney and client nor short-circuits defense counsel’s ability to develop strategy.”

The rationale for the restriction, according to government attorneys, was to limit the number of times a child can be victimized by the duplication of the pornographic images.

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