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Wash. court limits child pornography charges

Fri., April 10, 2009, 11:21 a.m.

OLYMPIA — People found with images of child pornography can be prosecuted under Washington law only for a single offense per possession, not multiple counts based on the number of images or children, the state Supreme Court has ruled.

To the outspoken dismay of prosecutors and a dissenting justice, the high court on Thursday upheld an appeals court ruling that requires the resentencing of Randy J. Sutherby on one count, rather than the seven on which he was sentenced in Grays Harbor County Superior Court.

Writing for the majority in the 8-1 ruling, Justice Debra L. Stephens noted that state law bars possession of “any” visual or printed image depicting a minor engaged in sexually explicit conduct and that the high court has consistently determined that the word “any” means everything, regardless of quantity.

As a result, she wrote, the proper unit for child pornography prosecution is one count per possession, rather than one for each image or each child who is depicted.

In a separate ruling, the Supreme Court voted 6 to 3 to overturn Sutherby’s convictions for child rape and child molestation on grounds of ineffective counsel because his privately hired initial lawyer did not ask to have the rape and molestation cases heard separately from the porn charges.

Sutherby, 58, of Montesano, was charged with assaulting his 5-year-old granddaughter in 2004, and investigators found pictures in his computer.

The porn ruling gives defendants a “volume discount,” argued the Supreme Court’s lone dissenter, Justice James M. Johnson, who also disagreed with the finding of ineffective counsel.

“This innocent young girl was victimized at age 5 by her grandfather and now by a justice system that is supposed to protect her,” Johnson wrote.

“She did everything a little girl in her position should have done” by reporting the abuse to her mother, he added. “Now, several years later, the majority’s decision means she will have to relive these traumatic events at another trial or see her victimizer plead down to a reduced sentence.”

Grays Harbor County Deputy Prosecutor Gerald R. Fuller said he might seek reconsideration of both rulings by the Supreme Court and would talk to the girl’s family before deciding whether to retry Sutherby on rape and molestation charges.

Ian M. Goodhew, deputy chief of staff for the King County prosecutor in Seattle, said the result of the court’s ruling would be reduced prison terms, sometimes drastically, in child porn cases. The range for one count is 12 to 14 months for first-time offenders, increasing to 26 to 34 months for each additional count.

Sutherby was sentenced to more than 23 years for child rape; nearly 14 years for molestation, to be served concurrently; and one year for each child pornography count, also to be served concurrently. He has been out of prison since September 2007, when a state Court of Appeals panel overturned his child rape and molestation convictions and ordered resentencing on the pornography.

The Legislature should change the law “to ensure that possessors of child porn are punished for the actual harm that they cause to each child depicted,” Goodhew argued.

“The possession of child pornography is extremely troubling when you consider that in each image a child is being forced to engage in a sexual act,” he said. “Each child suffers real harm in every image.”

James M. Lobsenz, Sutherby’s appellate lawyer, said producers of child pornography already are liable for separate counts for each image they make. Those who possess the material don’t victimize minors the same way, he argued.

Others convicted on multiple child porn counts will likely now go to court for reductions in their sentences, Lobsenz said.

“I think the court got it right,” he said. “The Legislature did not intend to make astronomical sentences that kept getting increased and increased and increased because you possessed more than one.”

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