Attorney Continues to Fight Non-Child Child Porn Conviction

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By William Peacock, Esq. on June 19, 2013 5:03 PM

Meet Gary Peel. Gary was once an attorney of note in the Madison County, Illinois area. In fact, he once had a case in front of the United States Supreme Court that dealt with attorney advertising and "specialist" claims. Though he didn't argue the case, he was the censured attorney, and the heavily-fractured plurality decision is quite the interesting read, especially if lawyer advertising restrictions intrigue you.

He is currently in prison. He'll be in prison for a while, unless his many appeals produce fortuitous results for the now-disgraced attorney.

What led to his downfall? An extra-marital affair and some decades-old non-child child pornography.

Way back in the 1970, Peel cheated on his wife with her 16-year-old sister. It gets worse. He took pictures. At the time, it was arguably legal too, as she was of the age of consent in Illinois and federal child pornography laws did not yet exist, reports The Associated Press.

He then held on to those pictures for about forty years.

When his finances took a turn for the worse, he then tried to blackmail his ex-wife into adjusting a divorce settlement by threatening to release the images. She, quite wisely, caught the threats on tape.

The legal issues are interesting. Should he be prosecuted for possession of child porn in 2006 for images that were taken consensually with a then-legal partner? It certainly is a borderline offense and may not be the sort of conduct that the laws were meant to address.

The Seventh Circuit upheld his conviction. The gist of their 2010 holding was that the offense was clear per the plain text of the statute. Justice Scalia would be proud, though interestingly enough, the Supreme Court denied certiorari.

Though the court noted that the original federal law wasn't passed until four years after the pictures were taken, and even then, it defined the age of majority as sixteen. Taking the pictures wouldn't have been illegal until 1984, when the definition of "minor" was revised to under the age of eighteen.

However, the court notes that Congress certainly didn't intend to grandfather in pre-1978 child pornography.

Now, Peel is pressing forward with another appeal to the Seventh Circuit, this time asking them to reconsider in light of United States v. Stevens, a case decided by SCOTUS three months after the earlier appeal, and to consider new claims of ineffective assistance of counsel, reports The Madison-St. Clair Record. 

The Stevens case is interesting. It addressed a law that prohibited the creation of videos depicting animal cruelty, such as crush videos. The overbroad statute was nixed by the court, as its language did not limit it to abusive conduct (hunting videos would be illegal per the language).

Based on Stevens and Ashcroft v. Free Speech Coalition (a child porn case already addressed by the court), Peel argues that unless the person depicted is a minor at the time and the images show criminal abuse or exploitation of that child, "then those images (whether computer generated or, as here, utilizing youthful appearing adults) enjoy absolute First Amendment protection."

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