Category: reason

Judge Newman has been “temporarily” suspended from case assignments in the Federal Circuit by her fellow judges. She has filed a cert petition with the Supreme Court. Her “stealth impeachment” raises significant issues worthy of Supreme Court review.  Since all the briefing on her cert petition is now completed — and a decision on the petition is imminent — this post will briefly recap the issues, with the most important briefs linked.

As I’ve blogged about previously, recall that Judge Newman has challenged her suspension from new case assignments. (Fellow bloggers Josh Blackman and Jonathan Adler have also followed the case closely.) But in the latest ruling, the D.C. Circuit held that the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980 blocks any review of the lawfulness of this suspension.

In March, Judge Newman filed a cert petition presenting the important constitutional question of whether she is entitled to her day in court to challenge the lengthy suspension, which has no end in sight. Her petition begins with this powerful introduction:

This petition presents questions concerning crucial constitutional and statutory aspects of lifetime tenure and judicial independence, especially the availability of judicial review for intra-branch infringements on judicial service. These questions affect the very independence of Article III courts and potentially affect every member of the federal judiciary and every litigant who appears before them. For three years the Federal Circuit has been operating short-handed because the judges of that court have summarily removed its longest-serving and most storied jurist (its “Great Dissenter”) from the bench.

The D.C. Circuit Court of Appeals held that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (“the Disability Act”) bars review of the unlawful actions taken against Judge Pauline Newman. This administrative removal of a judge who is famous for dissenting from her colleagues, by those same colleagues, with judicial refusal to review the merits of the action, undermines the judicial independence that is a vital foundation of our constitutional design. Every judge who gets crosswise with her chief judge or her colleagues must now worry whether similar tactics could be used to remove them.

Judge Newman has continued to speak and write before the legal community, and no finding of disability has been made concerning her in the years since the unlawful administrative orders began. She voluntarily underwent and passed three expert evaluations of her mental fitness and was reported as having the mental ability of someone decades younger. She now has been suspended longer than any federal judge in history. The length of the suspension, the apparent intention to keep her off the bench permanently, the same judges acting as complainant, witnesses and judges, and the refusal to transfer the matter to another circuit for neutral investigation are unprecedented.

Since then, significant amicus briefs have been filed supporting Judge Newman. Last month, I filed one such supporting amicus brief, joined by former federal judges Janice Roger Brown, Paul R. Michel, Kent A. Jordan, Randall R. Rader, Thomas I. Vanaski, and Susan G Braden.  Our brief argues that federal courts must be able to review constitutional claims of the type presented by Judge Newman:

In its decision below, the D.C. Circuit reaffirmed a 25-year-old precedent that prevents federal judges from seeking federal-court redress from Judicial Council actions that de  facto remove them from the federal bench. That bar applies without regard to whether—as alleged here—the Judicial Council has acted in violation of the judge’s rights under the U.S. Constitution. Particularly in light of the threat to judicial independence posed by the many recent attacks on the authority of federal judges, the Court should grant review to reaffirm the authority of federal courts to intervene to hear claims raising constitutional claims of the sort at issue here.

Another supporting brief came from the District of Columbia Bar Association. Its brief  highlights the importance of Judge Newman’s independent voice on the Federal Circuit:

The involuntary and indefinite suspension of Judge Newman from all judicial duties is an impeachment and deprives our legal community of an experienced and fiercely independent voice in the ongoing weaving of the tapestry of caselaw at the Federal Circuit. This ongoing suspension circumvents our Constitution because Judge Newman can only be impeached by Congress. See U.S. Const. art. II, § 4.

University of Houston law professor Andrew Michaels, a former law clerk to Judge Newman (2010 to 2012), also supports review in a strong amicus brief.  He explains why Judge Newman’s allegedly “temporary” suspension is tantament to impeachment:

The Judicial Conduct and Disability Act of 1980 expressly prohibits permanent removal.2 Administrative tribunals should not be permitted to circumvent this prohibition (as well as constitutional guarantees) merely by characterizing the removal as an indefinite series of consecutive “temporary” suspensions. Judge Newman has now been “suspended” for over three years, and counting.

The Buckeye Institute, the Manhattan Institute, and the Committee for Justice also filed a supporting amicus brief, asking the Supreme Court to review the foundational principles at issue in the case:

This de facto impeachment circumvents the Constitution’s structural safeguards. Impeachment requires bicameral action, supermajority agreement in the Senate, and  public, deliberative proceedings. These protections reflect the Framers’ judgment that  removing a federal judge demands broad political accountability and careful deliberation.  The Federal Circuit’s unilateral action evades those safeguards entirely, consolidating investigative, prosecutorial, and adjudicative functions within the judiciary itself.

Some of Judge Newman’s former law clerks also filed to support her, arguing that she deserves a day in court:

Without judicial review of her suspension, Judge Newman is in limbo. To safeguard judicial independence and to provide due process, Judge Newman is entitled to meaningful review of her constitutional claims.

The sole brief opposing review came from the Federal Circuit’s Chief Judge, Kimberly A. Moore, and was filed by the Solicitor General.  The SG’s brief raises largely technical jurisdictional arguments, rather than disputing the merits of Judge Newman’s claims. The brief argues:

[Judge Newman’s] contentions lack merit and implicate no circuit split. As the courts below correctly held, Congress directed challenges to judicial-council orders to the Article III judges serving on the Judicial Conference, not to federal district courts. That sensible policy decision ensures a mechanism for reviewing allegations of judicial misconduct or incapacity that comports with separationof-powers considerations, offers multiple layers of review, and prevents overburdening federal courts with complaints about judicial-council decisions. And petitioner identifies no plausible conflict among the circuit courts warranting this Court’s review.

Understandable, the SG’s brief makes no attempt to discuss Judge Moore’s bizarre AI cartoon about the Federal Circuit — a cartoon that glaringly removed Judge Newman from her position on the court, as Josh Blackman discussed here in detail.

Yesterday, Judge Newman replied to Judge Moore’s legal arguments. Thus, the briefing is complete on the cert petion. The Court is scheduled to consider the petition at its June 11 conference. That means we may hear as soon as Monday, June 15, whether the Court has agreed to hear Judge Newman’s case.

I hope that the Supreme Court takes this case. The “stealth impeachment” launched against Judge Newman obviously has the potential to threaten judicial indpendent in many ways. The Supreme Court should speak definitively about whether this end-run around the Constitution’s impeachment process is permitted.

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If I told you that a federal agency had dismissed voluntary conservation on the grounds that environmental protection should be done only by government planners and regulators, you’d be forgiven for thinking I was referring to a previous administration. But the Biden administration actually endorsed conservation leasing, a free market approach to reduce conflict and litigation over federal land. In rescinding those policies, the Trump administration’s Department of the Interior is embracing its inner statism.

In 2024, the Bureau of Land Management adopted the Public Lands Rule, which allowed conservation groups to lease public land for conservation, just as ranchers, energy companies, and many other interests do. The goal was to put conservation on an equal footing with other uses and give conservation groups a voluntary, free market alternative to lobbying and litigation to pursue their interests. The Biden administration also hoped to promote cooperation over conflict, with one official telling Congress that the “key to the success” of the program would be conservation groups paying ranchers and other public-land users for voluntary stewardship.

What would conservation leasing look like in practice? Voluntary conservation on private land offers endless examples. In West Virginia, Trout Unlimited has restored 25 miles of stream, along with 500 acres of riparian habitat, and purchased easements from willing landowners to protect those investments. In the Southeast, The Nature Conservancy and American Forest Foundation have established a program to pay family forestowners for conservation practices, including carbon sequestration. And in the Greater Yellowstone Ecosystem, the Ricketts Conservation Foundation and my organization, the Property and Environment Research Center (PERC), partner with ranchers to replace miles of barbed wire with “virtual fences” that improve cattle management and remove barriers to wildlife migrations.

Last month, the BLM rescinded the Public Lands Rule, rejecting any role for private, voluntary conservation on public lands. According to its interpretation, government planning, environmental reviews, and regulation are sufficient tools, and private competition and complements are unnecessary. In effect, the administration declared that the federal government should have a monopoly when it comes to conservation on public land.

When the government insulates its decisions from markets and competition, the results are predictable: poorer service, higher costs, and political gamesmanship. This story has played out again and again in government monopolies in mail service, education, and healthcare. When the government is the sole provider of something and prevents private competition, outcomes—and politics—worsen. 

In the conservation space, government bureaucrats wielding planning, permitting, and regulation are no substitute for private groups investing in conservation outcomes they care about. Government planners face an insurmountable Hayekian knowledge problem, in that information about what people value, and how much they value it, is dispersed and constantly changing. The BLM director simply cannot know what the public desires with the precision needed to perfectly plan across the 245 million acres he oversees. Only prices can reveal that information, which requires market mechanisms to allow for competition among competing uses.

A government monopoly for conservation projects will also lack accountability. When a bureaucrat mismanages a landscape or spends a lot of money on an ill-conceived project, the consequences fall on the public rather than the bureaucrat or his agency. However, if the Rocky Mountain Elk Foundation invests its own money in removing invasive species, implementing a prescribed burn, or improving wildlife habitat, it has strong incentives to deliver the best results at the lowest possible cost.

Channeling conservation exclusively through politics also leads to less durable investments and results. Recently, the Bureau of Land Management upended a 20-year bison restoration program by suddenly changing its interpretation of a century-old law in response to political pressure. Federal agencies are inherently political animals, and their commitments are only as reliable as the next election. Property rights and contracts, on the other hand, provide durable commitments and spur investment in conservation.

Then there’s rent-seeking. If conservation of public lands is purely a question of politics, every side has an incentive to exaggerate claims and push the government to favor their interests. For years, public-land controversies have generated scorched-earth political battles, with industry actors claiming that conservation would be ruinously expensive and conservation advocates predicting development will cause the sky to fall. 

Some of the chief benefits of markets are to force people to put their money where their mouths are and to create incentives for compromise. A conservation group that knows a conservation lease that blocks energy development entirely will be ruinously expensive has a direct stake in finding creative ways for commerce and conservation to coexist. But if the costs exclusively fall on political opponents, why moderate? 

The BLM’s decision is especially disappointing because it undercuts the administration’s own signals that it understands these problems. Last July, President Trump signed the Make America Beautiful Again executive order setting out the administration’s environmental vision, which is “to prioritize responsible conservation, restore our lands and waters, and protect” outdoor recreation. Specifically, it called for policies to “encourage responsible, voluntary conservation efforts” and “cut bureaucratic delays that hinder effective environmental management.” BLM’s decision repudiates both principles in favor of a statist vision of top-down, regulatory conservation.

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The Eleventh Circuit Judicial Council may have thought Judge Eleanor Ross’s apology was sufficient to keep the reprimand private, but those not wearing a robe continue to see a problem. Representative Jordan of the House Judiciary Committee is starting to discuss an investigation.

The House Judiciary Committee’s top Republican said his staff is looking at possible congressional action after a Georgia federal judge had an affair in her chambers, in earshot of clerks, and lied to judiciary officials about it.

Judiciary Chairman Jim Jordan (R-Ohio) said Wednesday that his staff has “already put together a memo” on the facts involved in the misconduct findings against Judge Eleanor Ross of the Atlanta-based US District Court for the Northern District of Georgia.

The “key fact,” he said in a brief interview, was that Ross lied to the judges investigating her misconduct. A judicial special committee report, released publicly in May, found the judge made “false statements” to the chief judges of her district and of the US Court of Appeals for the Eleventh Circuit, which oversees federal courts in Georgia, Florida, and Alabama.

“We’re looking at it. We’re going to run it by our members and see,” Jordan said.

Jordan also wouldn’t rule out impeachment as a possible response, a rare process for judges historically.

“Everything’s on the table,” Jordan said. “We don’t take anything off the table.”

To keep this discourse going, I am happy to pass along another guest post from Professor Arthur Hellman about Judge Eleanor Ross’s situation.

If Judge Ross’s “Improper Sexual Activity” “Greatly Damage[s] [Her] Credibility as a Judge,” Does That Satisfy the Standard for Impeachment?

In a recent guest post, I explained why one of the findings of judicial misconduct by Atlanta Federal District Judge Eleanor Ross – making false statements to investigating judges – corresponds closely to conduct that was one basis for impeaching Federal District Judge Samuel B. Kent in 2009.  A second finding of misconduct by Judge Ross – labelled “Improper Sexual Activity in Chambers with a Law Enforcement Officer” in the Special Committee report – has no counterpart in any judicial impeachment proceeding that I’m aware of. But that does not mean that it could not be a possible basis for impeachment.

My purpose here is not to develop the point in detail, but rather to call attention to a statement in the Special Committee report that bears on the question. The Eleventh Circuit Judicial Council unanimously adopted the “findings and recommendations” of that report. To provide complete context, I will copy a little more of the paragraph than is probably necessary. Here is what the Special Committee wrote (pp. 15-16):

“For two years, the Subject Judge was a federal district judge who routinely heard criminal cases [and who] engaged in a secret extramarital relationship with a prominent officer of a large law enforcement agency in the judge’s district—with the affair consisting of sexual intercourse in the Subject Judge’s chambers during working hours. Moreover, during this period, the Subject Judge’s spouse was not aware of the affair. Undoubtedly, a bad actor could have used these facts to try to blackmail the Subject Judge. Even absent a blackmail attempt, the publication of these facts would have greatly damaged the Subject Judge’s credibility as a judge and brought disrepute to the federal judiciary.”

The first quoted sentence summarizes the judge’s conduct. The last sentence states that “the publication of these facts” – i.e., the facts stated in the first quoted sentence – “would have greatly damaged the Subject Judge’s credibility as a judge and brought disrepute to the federal judiciary.”

Preliminarily, it seems odd to state that “publication of [the] facts” would “greatly damage[] [Judge Ross’s] credibility as a judge,” etc. If that is so, it must be because public knowledge of the underlying conduct would have that result. In any event, the facts have now been published, and (notwithstanding the Judicial Council’s efforts), the identity of the judge is also public knowledge. (The Council apparently acted as it did because it believed, as stated on the last page of the Special Committee report, that Judge Ross had provided “otherwise exemplary service to the court” and that she should be allowed to continue that service.)

Now let us consider the standard for judicial impeachment. Under the Constitution, an Article III judge like Judge Ross can be impeached and removed from office for “high crimes and misdemeanors.” In my testimony at the House Judiciary Committee Task Force hearing on the proposed impeachment of Judge Kent, I sought to ascertain the meaning of that term as applied to judges. There were (and are) no judicial decisions to consult, because impeachment is not subject to judicial review. Instead, I looked to Founding Generation sources and to early commentators whose writings have been relied on by the Supreme Court to determine the meaning of other constitutional provisions.

Two of the commentaries are particularly relevant here. (For background and citations, see the hearing statement linked above.) William Rawle, writing about the “system” of impeachment, stated: “We may perceive in this scheme one useful mode of removing from office him who is unworthy to fill it.” (Emphasis added.) The House Judiciary Committee, in its report recommending impeachment of Judge Kent, quoted this language from Rawle’s treatise (p. 18).

Justice Joseph Story, in his widely cited treatise on the Constitution, discussed the question whether impeachment is limited to “official acts.” Story asked: “Suppose a judge or other officer to receive a bribe not connected with his judicial office; could he be entitled to any public confidence? Would not these reasons for his removal be just as strong, as if it were a case of an official bribe?” (Emphasis added.) I cited this statement in response to a question from then-Rep. Adam Schiff, the chairman of the Task Force, at the Kent hearing. See pp. 215-16 of the hearing record.

Judge Story’s premise seems to be that a judge or other officer warrants impeachment and removal if she has engaged in behavior that results in a loss of “public confidence” in her ability to perform the functions of her office. (And that behavior is not limited to “official acts.”) This is not quite the same thing as saying that the officer is not worthy to fill the office, but there is substantial overlap, and both formulations suggest a similar forward-looking perspective.

It seems to me that the Special Committee’s statement about Judge Ross’s “improper sexual activity” corresponds closely to both delineations of the impeachment standard. The Committee said that public knowledge of Judge Ross’s conduct would “greatly damage[] [her] credibility as a judge.” If her credibility is greatly damaged, isn’t that strong evidence that she is “unworthy to fill’ the judicial position that she holds? And would she still be entitled to “any public confidence?”

None of this is definitive; each case is different. But these views of the impeachment standard – one of which was explicitly endorsed in the House Judiciary Committee report recommending the impeachment of Judge Kent – are sufficient to warrant the House in opening an inquiry into the possible impeachment of Judge Ross, independent of her false statements to investigating judges.

There is one aspect of the Eleventh Circuit’s memorandum that I can’t quite pin down. I agree that Judge Ross’s sexual misconduct “damaged the Subject Judge’s credibility.” That is almost always true–a judge that engages in misconduct has diminished credibility. But did the Council seek to avoid further diminishing the judge’s credibility by making the reprimand private? In other words, was the private reprimand an effort to ensure that Judge Ross could continue doing her job. She is already facing at least one recusal motion, and more will follow. Stated differently, once the Council determined that no meaningful punishment would be given, and that even the apology letters could be vague, the judges determined that the best path forward for Judge Ross’s continued judicial service was to make the reprimand private. There is definitely some sort of coupling between the “diminished credibility” risk and the private reprimand, but I can’t quite tease it out.

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I wrote in April about the initial Indictment in U.S. v. Southern Poverty Law Center (M.D. Ala.). As I wrote, the indictment opens,

The Southern Poverty Law Center’s (“SPLC”) stated mission included the dismantling of white supremacy and confronting hate across the country. However, unbeknownst to donors, some of their donated money was being used to fund the leaders and organizers of racist groups, including the Ku Klux Klan, the Aryan Nation, and the National Alliance. The SPLC’s paid informants (“field sources”) engaged in the active promotion of racist groups at the same time that the SPLC was denouncing the same groups on its website….

[T]he SPLC explicitly sought donations under the auspices that donor money would be used to help “dismantle” violent extremist groups. In the SPLC’s solicitations for donations as outlined herein, donors were not told that some of the donated funds were to be used by the SPLC to pay high-level leaders of violent extremist groups and others, nor were donors ever told that some of the donated funds were used for the benefit of the violent extremist groups or that some of the donated funds would be used in the commission of state and federal crimes.

Tuesday’s Superseding Indictment offers some more detail about the allegations, among other things elaborating on the activities of one of the people working for it (labeled F-30, with “F” being the SPLC term for “field source”) and adding information about two others (F-31 and F-32):

F-30 led the National Socialist Party of America, was a member of the Ku Klux Klan, and was the leader of a faction of the Aryan Nations that had chapters in approximately 17 states.

In approximately 2010, out of money and seeking to get out of the white nationalist movement (“the movement”), F-30 reached out to the SPLC, unsolicited, and discussed a plan to leave the movement. Thereafter, the SPLC employee offered F-30 a monthly salary of approximately $2,500.00 in addition to payment of expenses to continue to lead and maintain the violent extremist organization F-30 told the SPLC employee he wanted to leave….

From approximately 2010 through 2016, the SPLC secretly moved over $70,000.00 in donors’ money from the SPLC operating account … onto F-30’s pay card…. F-30 used donors’ money to, among other things, travel to extremist rallies, host extremist rallies, donate money to leaders of other extremist organizations, recruit new members into his extremist organization, publish racist and extremist material for the purpose of recruiting new members, both inside and outside of prison, and create racist paraphernalia to sell at rallies to raise more money for his extremist organization. This was known to certain SPLC employees as they continued to secretly funnel donors’ money to F-30.

During the same period that SPLC was secretly using donors’ money to fund F-30’s extremist activities, the SPLC had an entire “Extremist File” webpage dedicated to F-30. The SPLC used this “Extremist File” webpage to solicit more public donations. At one point F-30 asked an SPLC employee to soften the language about him on his “Extremist File” webpage so that it would not scare off new members from joining his extremist organization. The SPLC employee agreed and changed the language on the SPLC’s “Extremist Files” webpage for F-30….

F-31 and F-32 were members of a Ku Klux Klan organization in their area. In or about 2010, F-31 and F-32 feared for their safety from other Klan members and wanted out of the movement. F-32 had seen media coverage about how the SPLC helped an individual leave an extremist organization and how the SPLC paid for this individual’s tattoo removals. This media coverage prompted F-32 to reach out to the SPLC, unsolicited, and ask the SPLC for help to get F-31 and F-32 out of the movement.

An SPLC employee invited F-31 and F-32 to Montgomery for a meeting. There, despite their requests for help getting out of the movement, an SPLC employee encouraged F-31 and F-32 to stay in the movement and offered to pay them a $1,200.00 monthly salary as well as to pay for expenses as incurred. Once they were financially backed by the SPLC to do so, F-31 and F-32 agreed to remain in the movement….

Using donors’ money, F-31 and F-32 attended extremist group rallies in multiple states. This led to F-31 rising from merely a group member to a leadership role within an extremist group. In the new leadership role, F-31 actively recruited new members using donors’ money.

F-32 also participated in recruiting new members using donors’ money. In addition, an SPLC employee knew that F-32 used donors’ money to purchase material to make Ku Klux Klan garments for others.

F-31 and F-32 were reimbursed by the SPLC with donor money for all expenses they incurred for cross-burning events to include the wood and fuel used….

As I noted in my original post,

I take it that one defense argument as to the donor fraud claims may be that they were trying to dismantle violent extremist groups, both by paying money to get information about them and by causing the groups to do and say things that would discredit them. That may itself be discreditable, but the question will be whether it’s a fraud on the donors.

And I followed up with expressing some tentative skepticism about the government’s theory. (The government is also accusing the SPLC of making false statements to banks about the accounts that were used to fund its activities; I didn’t focus much on that.) But in any event, the indictment and now the superseding indictment are factually noteworthy, whatever one things of the legal theory. Of course, note that they are just indictments, which is to say the government’s allegations; we’ll see what emerges at trial.

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An interesting May 22 order from the court in the Justin Fairfax child custody trial, Fairfax v. Fairfax (Judge Timothy McEvoy, Fairfax County [Va.] Cir. Ct.) (the requestor is apparently an independent writer, at https://blackvirginianews.substack.com/):

This Court recently began making uncertified transcripts of the audio recordings of Court proceedings (each such transcript, an “Uncertified Transcript”) available to parties with a need for them. However, such Uncertified Transcripts are provided for informational purposes only. They are not checked, proofread, or corrected. They are not official Court records and may not be relied upon for any purpose absent agreement of all parties and further Court order;

Uncertified Transcripts are machine-generated by natural language processing artificial intelligence software that, while improving, often produces meaningful inaccuracies, limiting the usefulness of such transcripts and creating a risk that a person reading them, and particularly a non-party, will misunderstand what actually happened during the transcribed proceedings;

Certified transcripts, produced by qualified court reporters, are far more accurate and are, under Virginia law, the preferred method of recording and demonstrating what occurred in any Court proceeding. See, e.g., Code § 8.01-420.3;

This action involved matters of child custody, raising the best interests of the involved children as the paramount concern of the Court. See, e.g., Bottoms v. Bottoms, 259 Va. 410,413 (1995) (quoting Bailes v. Sours, 231 Va. 96, 99 (1986));

On April 17, 2026, Lauren Burke (“Requestor”) submitted three requests for the Uncertified Transcript of the Trial (such requests, the “Request”);

Requestor was neither a party to this action nor a witness at the Trial;

A qualified court reporter attended the Trial and would be able to produce a certified transcript of the proceedings;

The Court has reviewed the Uncertified Transcript of the Trial and found it to be replete with errors, omissions, and other inaccuracies such that it does not constitute an accurate record of the testimony, argument, and rulings made during the Trial;

Release of the Uncertified Transcript creates a substantial risk of misrepresenting the nature, details, and conduct of the Trial, which is contrary to the best interests of the children involved;

A more accurate, certified transcript should be available to the parties from the court reporter who attended the Trial;

Accordingly, declining to release the Uncertified Transcript of the Trial is in the best interests of the children and would result in no prejudice to any party;

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

The Request is DENIED …;

The Uncertified Transcript of the Trial must not be released ….

A certificated transcript, as the court notes, would be available, but would presumably cost a considerable amount of money (at least in the hundreds of dollars, depending on the length of the proceeding).

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From People v. Nichols, decided Tuesday by Justice Mark Clarke, joined by Justices John Barberis and Barry Vaughan:

[The] charges [in this case] were predicated on photographs and videos of the defendant’s minor daughters taken between 2002 and 2016 and were found on a computer and an external hard drive in the defendant’s home. The defendant’s husband, Douglas Nichols, who is not a party to this appeal [but who reportedly has filed his own appeal -EV], was also charged … with possession of the same images and videos.

Some backstory on how the images were found, from a March article in the Decator Herald & Review (Tony Reid):

Detectives with the Decatur Police Department had been looking for evidence on four counts of … earlier criminal sexual assault charges against Douglas Nichols alone plus eight counts of aggravated criminal sexual abuse involving a female teenage victim when they came across the pictures and video that led to the child sex abuse image charges.

A December 2022 story in the same newspaper by the same reporter says:

On May 20, 2021, the Decatur Police Department received a complaint from an individual alleging sexual assault that had occurred over 10 years ago by a subject known to them. The case was assigned to a detective and an investigation into the allegations immediately commenced.

Back to the wife’s appeal:

[D]efendant had two daughters, Ky.N. (born November 4, 2000) and Ki.N. (born October 1, 2002)…. Ky.N. testified [at trial] that she was voluntarily testifying, and that she had always felt safe and felt that her mother was supportive growing up. She testified that the family’s digital cameras were usually placed where anyone could access or use them, that she had used her mother’s phone to take pictures whenever she had wanted to, even daily, and that her sister had done the same. She also testified that her mother took photos of her and her sister all the time. Additionally, Ky.N. testified that her parents never asked her to take her clothes off before taking photographs or videos of her, and that they had never asked her to pose in a sexually suggestive manner….

Ky.N. testified that she didn’t recognize the photos but did recognize the home. She testified that she recognized her sister and herself, but she did not remember the photographs being taken or the events being depicted. She stated that it looked like they were having fun playing horses or unicorns with the toilet paper tails, and that she and her sister commonly played with toilet paper.

In regard to People’s Exhibit 4, she testified that she did not recognize the video, but that it was her sister Ki.N. playing with a pogo stick, and that she recognized both her and the defendant’s voice. In regard to People’s Exhibit 5, Ky.N. testified that she did not recognize the video, but that it was of Ki.N. and her cousin in the shower. She testified that her sister commonly sang in the shower and that, growing up, she recorded her sister singing in the shower by pointing the phone at the floor. On cross-examination, Ky.N. testified that she did not remember her parents ever taking nude photographs of her, and that she did not remember anyone else ever taking nude photos of her, and further reiterated she did not know who took the photographs but that it could have been anyone….

[D]efendant’s husband … testified that they left the children with babysitters on Tuesdays when both he and the defendant were at work. He testified that he took photos of his children all the time. He also testified that neither he nor the defendant had ever asked them to take their clothes off to take pictures, nor had they ever asked them to pose in suggestive ways. He testified that anyone could use any cameras at any time, but that he was the one who backed up all the photographs and videos from the family’s devices to the computer…. He testified that before he was charged, he had never seen any of the charged photographs, but that his children had been spontaneous, and that included doing the things seen in the charged exhibits….

The defendant … testified that she and Douglas would occasionally leave the children with babysitters every couple of weeks to go out together, and they left them with one every Tuesday while they both worked. She testified that the behavior seen in the photos was all in line with how Ky.N. and Ki.N. used to play. She testified that she took photos with her kids daily and that she took photos of them in both posed and spontaneous moments, but she never asked them to take their clothes off before doing so, nor did she ever pose them in sexually suggestive ways…. [She testified] that she never reviewed the old photos and stated she did not recall ever taking the charged images, but she admitted she had taken photos of her children while they were nude. She also admitted there were times she had recorded Ki.N. topless while she was engaged in physical activity….

[T]he defendant’s other daughter … testified that she was thankful for her parents and felt safe growing up. She testified that growing up, the family camera was typically kept in the kitchen and that everyone, including members of her extended family, and possibly even babysitters, had used it. She also testified that she used her mother’s phone to take pictures daily and her sister had used it frequently as well.

In regard to People’s Exhibits 7 through 12, she testified that she did not recall the photographs being taken, but believed that they had come up with the idea of making and playing with toilet paper tails, and that such activity was representative of the sort of spontaneous things they would do. In regard to People’s Exhibit 4, she testified that she was the girl on the pogo stick and that it was not uncommon for her to take off her shirt when she got hot as a kid. She also testified that she recognized defendant’s voice, as well as her sister’s voice in the video, but did not remember which one took the video.

In regard to People’s Exhibit 5, she testified that the girls in the shower were herself and her cousin, and that they were having fun showering and singing “Bop to the Top.” She also testified that she did not know who took the video. Finally, Ki.N. testified that her parents had never asked her to take her clothes off for a photo or video, nor had they ever asked her to pose in a sexually suggestive manner.

On cross-examination, she testified that she did not specifically remember if she took her top off in People’s Exhibit 4 because she was hot, nor did she remember who took People’s Exhibit 5, despite her claim on direct examination that she could see anyone who came in the bathroom due to its layout. She also testified that she didn’t believe People’s 7 through 12 were posed as she believed they were spontaneous….

The court goes through the relevant photographs in detail, and concludes that, though they showed some nudity, they “were not lewd as a matter of law” (which is what would be required to find that the photographs were constitutionally unprotected child pornography). The analysis is long, but here’s an excerpt:

People’s Exhibit 4 is a 17-second-long video of a partially nude adolescent female with partially developed breasts fully exposed. The video is filmed by a separate individual and appears to be taking place in a finished basement living room type area due to the placement of the window on the roofline of the wall and the presence of couches and a large television in the room,. As the video begins, the female’s entire body is visible in the frame, and she is only wearing underwear, socks, and slippers, with no other clothing. She is holding the pogo stick handles in her hands, with one foot on the pogo stick and one foot on the floor.

The female appears to know she is being recorded because she looks straight ahead, then at the camera, then back straight ahead. As the female begins jumping on the pogo stick, the video zooms in on her clothed pubic area, and then moves upwards, focusing on her head and unclothed torso, though much of her legs and arms remain visible as well. The female then falls off the pogo stick and out of frame. As the female steps back into frame, the video zooms out to show her whole body again, and she returns to her starting position. The video then ends.

Turning to the first factor [of the test that the Illinois Supreme Court developed to determine whether material was child pornography], the focal point of the video, we note that the video begins with the female visible “head-to-toe”; but once she begins bouncing it does zoom in on the area of her clothed genitals, then moves upward to focus on her head and unclothed torso until she quickly falls out of frame and it zooms back out to capture her whole body. The zooming appears somewhat clumsy. Taken as a whole, we find that this factor weighs in favor of finding that the video was lewd.

Turning to the second factor, the setting of the video appears to be a basement living room. There is nothing in the setting that would suggest or invite sexual activity. Therefore, we find that the video’s setting does not weigh in favor of finding it lewd.

Turning to the third factor, the adolescent female in the video is playing with a pogo stick, which is an age-appropriate activity. While she knows she is being recorded, she does not appear posed but instead appears to be actively playing in a moment of adolescent spontaneity. While the toplessness is inappropriate for the activity, we find it a minor factor here, as we note that we do not consider the nudity itself under this factor. Therefore, taken as a whole, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the fourth factor, we note that the adolescent female in this video appears partially clothed, wearing underwear on her genitals but not wearing any top. While the nudity is partial, we do find that this factor weighs in favor of finding that the video was lewd.

Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent female, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

Turning to the sixth and final factor, we note that the video does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the video appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as the adolescent female appears to know she is being recorded. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.

In evaluating all of the factors together, we find that factors one and four are present while factors two, three, five, and six are not. While not all factors need to be present to support a finding that a video is lewd, we find that, taking into account the overall content of the image and the age of the minor, the video shows an adolescent engaged in nonsexual conduct that is not inappropriate for her age. While we find the video deplorable, it does not meet the standard required to deem it objectively lewd. Accordingly, we find that it does not constitute child pornography under Illinois law.

The post Court Reverses Child Porn Convictions, Finding Material Was Non-Lewd Family Photos and Videos appeared first on Reason.com.

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6/4/1923: Meyer v. Nebraska decided.

 

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