Juries don’t always get it right, especially in extremely prejudicial cases involving allegations of sex crimes involving children. But, sometimes, just sometimes, an appeals court is forced, “after reviewing all the evidence in a light most favorable to the prosecution,” to find that a jury did not have enough evidence to find a criminal defendant guilty beyond a reasonable doubt.
It is not often that an appellate court will do the right thing and vacate a conviction because the prosecution did not present sufficient evidence to support the guilty verdict.
But that is exactly what happened in the case of James Paul Lowe, who had been convicted of three counts involving possession of child pornography.
On July 28, 2015, the Sixth Circuit Court of Appeals found that “no juror could conclude beyond a reasonable doubt from the evidence presented at trial that James Lowe knowingly received, possessed, and distributed the images and videos depicting child pornography found on the HP Pavilion laptop seized from his home.”
The facts of the case, as outlined by the Sixth Circuit, are rather astonishing.
In 2011, James Lowe shared a home with his wife, Stacy, at 2204 Robin Street in Athens, Tennessee. A minor relative named Michael, who was described at James Lowe’s trial as James’s “adopted child,” also lived at the residence sometime during 2011 before moving out. It is not clear exactly when Michael left the residence.
In early 2011, Detective J.P. Allman, with the Bradley County Sheriff’s Office, learned that “someone was using a particular Internet Protocol (IP) address to share child pornography.” In May, the detective searched for that IP address and “discovered a computer sharing files with names consistent with child pornography over a peer-to-peer network.” Allman download one video and two still images of child pornography that the computer’s “shared folder.”
Detective Allman had developed enough evidence to subpoena AT&T “for information about the account associated with the IP address.” AT&T responded with records that revealed the “account holder” was James Lowe whose address was listed as 2204 Robin Street with the email address–Lowe-Stacy@yahoo.com–associated with the account. Detective Allman decided to place the Lowe residence under surveillance—a surveillance that determined that, as of August 2011, the sole residents at the residence was James and Stacy Lowe.
On August 8, Allman and several fellow officers executed a search warrant of the Lowe residence. Stacy was at home during the search; James was not. The search discovered a Dell Inspiron laptop in a bedroom with the username “Stacy.” Two computers were found in an office in the residence: a HP Pavilion laptop with the username “Jamie” and a desktop. While the search was underway, Detective Allman spoke with Stacy and “learned that the laptop found in the office belonged to James Lowe.” James Lowe was subsequently indicted under Section 2252(a) for knowingly receiving, distributing, and possessing trial pornography.
At Lowe’s trial, the jury heard from FBI Special Agent Stephen McFall who said he “examined the three hard drives and discovered that only the HP Pavilion laptop contained child pornography.” Altogether, the agent said he found 639 image files and 176 videos depicting child pornography.
The problem with this evidence is that, as the appeals court pointed out, the user of the HP Pavilion named the laptop “Jamie-PC” and set up a “single user account.” Whoever set up the account did not make it password protected. Anyone could use the laptop and access all its files and programs. The Lowes had their wireless-internet account protected, allowing the laptop to automatically connect to the internet through “a stored wireless password.” In other words, anyone in the residence could use the laptop at any time for any reason.
Agent McFall said the laptop’s desktop screen had litany of shortcuts, icons, and files, including Shareaza (a peer-to-peer filing sharing program). In an obvious effort to link the laptop to James Lowe, the agent offered the gratuitous testimony that he found four Microsoft Excel spreadsheets that “looked like they were authorization agreements for business.”
Significantly, Agent McFall informed the jury that the Shareaza program was not password protected. The program automatically started running “in the background” whenever the laptop was turned on. He said the program was installed on February 24, 2011, and because whoever installed the program did not override the program’s “default username setting,” the Shareaza account assumed “the laptop’s username, ‘Jamie’.”
The Sixth Circuit condensed Agent McFall’s testimony to the following:
“[The agent] admitted that he could not pinpoint when someone searched for or initiated downloads of child pornography. But forensic analysis revealed the date and time on which partial or completed downloads appeared on the laptop’s hard drive. Microsoft Windows registry data revealed that a user opened files depicting child pornography as recent as August 4.”
Against the backdrop of this scant evidence, the appeals court was forced to conclude:
“Notwithstanding Lowe’s heavy burden, we agree with his argument that no rational juror could find him guilty beyond a reasonable doubt based on the evidence presented at trial. A juror could reasonably infer that James owned and occasionally used the laptop from (1) the device’s sole username, ‘Jamie,’ a common diminutive of James, (2) Detective Allman’s testimony that the laptop ‘belonged to’ James, and (3) Agent McFall’s testimony about March 10 visits to the Yahoo email log-in page. But, without improperly stacking inferences, no juror could infer such limited evidence of ownership and use that James knowingly downloaded, possessed and distributed the child pornography found on the laptop.”
We applaud the Sixth Circuit’s ruling. Jurors automatically attach guilt to anyone charged with the crime of child pornography. Three people had access to the laptop, including the “adopted child.” No evidence could link the laptop to child pornography before Michael moved into the residence. And the Government offered no specific evidence that child pornography was downloaded on the laptop after he moved out of the residence. The jurors apparently did not consider this evidence. It simply attached guilt to James Lowe because he owned the laptop and it was found in his residence, notwithstanding that at least two other people had access to the laptop. The appeals court made the right, if not difficult, call.
This case raises lingering questions for us. Who, or what, was the source of Detective Allman’s initial information about a computer at the Lowe residence being used to access child pornography? That information was received in early 2011. The detective waited until Michael was no longer at the residence before he initiated his surveillance of the Lowe residence in early August. Was that done deliberately? Those two unanswered questions should have been enough to make jurors pause and, at a minimum, consider an alternative suspect. But the prejudice and fear attached to child sex crimes is intense and the often overwhelming rush to judgment can be difficult to overcome.
It takes a fearless criminal defense lawyer to get out ahead of the prosecution and make a strong case for innocence, otherwise and person could get caught up in what is often a modern day witch hunt and find themselves convicted of a crime they did not commit.