Great Moments in the Annals of Child Porn Defense

I've posted before about the lazy eye defense to peepee-spying at the urinal, one of the better affirmative defenses the JP has encountered to date. Mr. Charles Burt must have heard about the Seventh Circuit's recent foray into the intricacies of restroom reconnaissance and, in a brilliant never-say-die move, came up with some great litigation strategery:

A defense theme throughout the trial had been that not all nude photos of children are pornographic. In particular, the defense’s case went, the government was required in this case to prove that the photographs were “lascivious exhibition of the genitals.” 18 U.S.C. § 2256(2)(A)(v).

Not all nude photos of children are child porn. Hey, technicalities are the first refuge of a scoundrel. Let's watch them run with it:

In his opening statement, Burt’s counsel framed the case as being about “a small town, hardworking professional photographer who took pictures of young boys engaged in sports, sports attire, athletic equipment, for the purpose of putting them on a legitimate nonpornographic website.” Tr. at 53.

Some witnesses thought the "nonpornographic website" was pretty tits though:

[P]hotographs of young boys taken by Burt were the “holy grail” among an online community of child pornography traders and admitted pedophiles. Tr. at 198.

Ever consistent, Burt's counsel had some gems in closing:

During closing argument, the defense argued various times to the jury that photographs and videos of naked children are not necessarily pornographic. See, e.g., (“You can go to a library, you can go to a church, you can go anywhere and see a picture of a boy or a young child with his penis exposed.”); (“Not every exposure of genitalia is lascivious.”); (“Just because you see a naked body or a naked child or the genitalia doesn’t mean it is lascivious.”); (“You can go to the library and find all sort of pictures that look like Charles Burt’s pictures.”); (“If you find that that is lascivious, you have to find that every single medical picture depicting a child’s penis—you would have to find that lascivious as well.”); (“. . . you would have medical doctors, medical schools, you would have all sorts of artists, going to jail.”) (citations omitted).

The dig on churches having lots of pictures of young naked boys was a little over the top. The pathos of 'Catholic priests can diddle little boys and so, uh, me too!' is a little strained. And... I don't think the jury bought it:

The jury returned guilty verdicts on all nine counts. The court sentenced Burt to one hundred years in prison, “a whopper of a sentence.” United States v. Bullock, 454 F.3d 637, 637 (7th Cir. 2006) (“One hundred years is a long time—one year longer, in fact, than the standard lyrical shorthand for an unimaginably long sentence.”).