Judge says Josh Duggar doesn’t deserve a new trial

Josh Duggar appears in a prison mug shot.

A federal judge in Arkansas has denied requests for a new trial or an acquittal by the former judge conservative political activist and 19 children and counting TV star josh duggar. The judge’s ruling and order methodically dismissed claims that Duggar had never viewed child pornography and that an alternative suspect could be behind the material discovered on Duggar’s work computer.

A jury in the Western District of Arkansas convicted Duggar on December 9, 2021 of receipt and possession of child pornography. He faces up to 40 years in federal prison and/or a fine in excess of $500,000. However, it is extremely unusual for federal convicts to receive the maximum sentence.

Although US District Judge Timothy L Brooksa Barack Obama Appointment, dismissing Duggar’s attempts to overturn the conviction, the judge agreed to an important provision between the government and the defendant: Possession is a lesser offense than receiving child pornography. This means that if Duggar is convicted this week, he will only be punished for receiving, not for possession.

“[I]It is the intention of the court to vacate the jury’s conviction of the possession offense and to formally dismiss Count 2 during tomorrow’s sentencing hearing,” Judge Brooks wrote.

Duggar’s recent legal action was based on Rules 29(a) and 33(a) of the Federal Code of Criminal Procedure. Rule 29(a) and related Eighth Federal Court jurisprudence allows a judge to reject a jury verdict and instead order an acquittal when “no reasonable jury could have found the accused guilty beyond a reasonable doubt.” Rule 33(a) allows a judge “to set aside any judgment and grant a new trial if the interests of justice so require”.

Judge Brooks found that the standards of both rules are respectful of the government and not of the accused. Judge Brooks, citing relevant case law, reminded Duggar that “requests for a new trial on the basis of the burden of proof should generally be denied and the district court’s power to grant a new trial should seldom be exercised.” And while a judge is considering throwing out a guilty verdict, he has a legal obligation to rule disputed evidence in the government’s favor — because the jury did.

The rules are designed as a court stopgap against wildly bizarre jury verdicts or other spectacular government failures during the trial. It is rare for them to be granted, and when they are, appellate courts have been known to overturn them. Defense attorneys routinely apply the rules through oral motions outside of the presence of a jury, after the government has closed its main case and after all witness testimony has been completed.

Duggar unsuccessfully argued under rule 29 that the jury did not have sufficient evidence to conclude that he had what was necessary men rea — or guilty mental state — based on evidence presented at trial. He also alleged under Rule 33 that the Government failed to disclose evidence in a timely manner and challenged the judge’s rulings on certain testimonies.

The judge summarized the defendant’s arguments as follows (quotations from the record are omitted):

Mr Duggar argues that the court should return an acquittal verdict on both counts of the conviction as insufficient evidence was presented to the jury to show that he did in fact view child pornography. He claims that proof of inspection is necessary to establish this men rea required to support convictions for receipt and possession of child pornography. To be clear, he agrees that the images presented at trial meet the definition of child pornography. His argument is that no reasonable jury could have found that he knowingly received and possessed child pornography because there is insufficient evidence that he or anyone else viewed the images.

The judge partially responded by pointing to certain pieces of evidence presented (again, we omitted the cumbersome citations to the records and specific filenames):

Mr Duggar’s argument is unfounded as there is ample evidence that he viewed the child pornography images downloaded onto his business computer. First government witness, detective Amber Kalmer, testified that on May 14, 2019, she established an online peer-to-peer connection with a computer mapped to an IP address in Northwest Arkansas. This IP address shared a video on the peer-to-peer network and Detective Kalmer downloaded it. The two or three minute video. . . shows a grown man vaginally penetrating two prepubescent girls. The following day, May 15, Detective Kalmer connected to the same IP address and downloaded another file. . . . This file contained 65 still images of a pre-adolescent girl posing nude, showing her genitals for the camera. The last frames of [the file] showed the same girl locked in a doghouse.

Both [files] were introduced into evidence at Mr. Duggar’s trial and released to the jury. Detective Kalmer testified that she reported the illegal downloading activity to the Northwest Arkansas office of the Department of Homeland Security. HSI Special Agent Gerald Faulkner has been assigned to track down Detective Kalmer. He discovered that the target IP address for Joshua James Duggar was registered at his Wholesale Motorcars company in Springdale, Arkansas. Federal agents executed a search warrant against the company and seized Mr. Duggar’s HP desktop computer for forensic analysis.

The judge then found that Duggar’s computer was “partitioned” into two separate systems. One side of the system contained Duggar’s business affairs and “accountability” software known as “Covenant Eyes”. This page of the system was set up to report pornography views or downloads to an “accountability partner” who was here Anna Dugar — the defendant’s wife. The other side of the computer contained a Linux-based system that contained child pornography, the judge said. The Linux side has bypassed the “Covenant Eyes” software.

Josh Duggar appears in a post-conviction mugshot taken by the prison in Washington County, Arkansas on December 9, 2021.

The judge further summarized experts who testified that “the user of the computer actually viewed the downloaded child pornography images” based on the fact that at least one of the files was “unzipped” by someone who actually used the computer, ” in a folder on the desktop” and “in the image viewer all open at the same time and second”.

“Therefore, considered most favorable in light of the jury’s verdicts, there is a reasonable inference that Mr. Duggar is the user who installed and used the Linux partition to search and view Internet content that would otherwise have been reported to him.” Wife of Covenant Eyes,” the judge wrote.

“The coup de grace is Government Exhibit 85,” the judge continued. “This exhibit, introduced by Mr. Fottrell’s testimony, is a timeline summarizing 50 or 60 displays of forensic evidence recovered from Mr. Duggar’s HP desktop, iPhone 11, iPhone 8 and MacBook. The evidence summarized in Exhibit 85 shows Mr. Duggar in the car park on May 13, 2019, during the local installation of the Linux partition and operating system, and on May 14-16, 2019, when child pornography was downloaded.”

“Based on the court’s discussion of the above trial evidence, Mr. Duggar’s argument in favor of an acquittal is unfounded,” the judge rationed. “Significant evidence was presented at trial to convince a reasonable jury that Mr. Duggar was physically present during the conduct of the offense and that he had done so men rea to commit these crimes.”

The judge thus sent Duggar’s request under rule 29(a) to set aside the judgment entirely and grant an acquittal instead.

While considering whether a new trial was warranted, the judge said that “evidence at trial showed that Mr. Duggar – and only Mr. Duggar – was physically present in the parking lot when child pornography was downloaded.”

In a footnote, the judge dismissed the defense’s suggestions that another perpetrator — including one named by the defense — was responsible for the pornography, noting the lack of evidence to support that assumption. Here, too, legal quotations are committed:

The defense’s alternative perpetrator theory had a possible twist: that someone might have accessed the desktop from a different physical location and downloaded child pornography that way. To support this theory, the defense asked the computer experts whether it was theoretically possible that someone had accessed the desktop remotely; in other words, they asked if the experts could “preclude remote access.” The defense also pointed out that the password for the Linux partition was one that Mr. Duggar frequently used for online banking and other online applications, so a remote hacker might have known or been able to find out. Unfortunately for the defense, there was no forensic evidence that the Linux side of the disk was there ever Remote access – by anyone.

The judge said the potential alternative suspect suggested by the defense was a former car parking lot employee Caleb Williams – was only “from May 8 to May 11, 2019, a few days before any child pornography downloads took place,” at Duggar’s car lot. (Downloads occurred on May 14, 15, and 16, and Williams was in Illinois between May 11 and 16.) The judge said the government duly released information about Williams to the defense — albeit late in the day Trial – and that the defense successfully cross-examined witnesses about Williams during the trial. The defense didn’t call Williams, although they had the opportunity to do so, the judge further noted, and that was probably because Duggar’s own witness testified that “someone who was physically present at the truck stop on May 13 used the Linux Operating system installed system by inserting a USB key into the HP desktop computer.” Williams was out of the country at the time. Though Williams had been convicted of a prior sex offense — something the defense seemed desperate to bring before the jury — the judge said the timeline effectively excused him as a viable suspect.

“In the end,” the judge wrote, “the promise of defending a surrogate perpetrator fizzled.”

The full document is below:

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