Kramer’s Attorney Argues Image Isn’t Pornographic

Stephen Reba, defense attorney for Dragon Con co-founder Ed Kramer, has moved to have Gwinnett County District Attorney Danny Porter thrown off all cases involving his client.

The October 10 motion filed in Gwinnett Superior Court accuses Porter of prosecutorial misconduct — in part because a recent child porn charge filed against Kramer was based on his possession of a published photograph from a well-known, albeit controversial, artist.

Reba contends DA Poter misled the grand jury about the nature of the photo in order to secure an indictment and prevent Kramer from possibly getting bond in another case. On September 30, two hours after Reba was in court asking for bond to secure Kramer’s release from jail, the Georgia Bureau of Investigation issued a warrant against Kramer on a new felony count of child pornography.

The Atlanta Journal-Constitution article “Attorney disputes child porn charge based on artist’s photograph” explains:

…The photo in question is titled “Popsicle Drips, 1985” and comes from a provocative 1992 collection published in the book “Immediate Family”by photographer Sally Mann. It depicts the genitalia of Mann’s young son.

“The claim that the image qualifies as child pornography … cannot be supported under any legal interpretation,” Reba wrote in his motion.

Porter has not yet filed a formal response. But he denied any abuse of power and defended the most recent charge against Kramer, a registered sex offender and longtime legal nemesis who Porter first charged with child molestation in 2000.

Porter said to qualify as child pornography a photograph “has to be of a naked child, a lewd display of a naked child.” He said the fact that Mann’s photo is a published work of art was “not part of the analysis” in bringing charges.

The question of whether the photograph constitutes child porn is ultimately one for a jury, Porter said.

Mann’s photography — a collection of which will be on display at the High Museum in Atlanta starting this weekend — includes hundreds, if not thousands, of images.

“Kramer selected the ones of naked children and put them in his own file,” Porter said.

Reba’s motion argues, “The image is a copyrighted piece of art that has been possessed and displayed by famous museums, universities, public libraries, major retail bookstores, and citizens alike – in fact, Mann’s work is featured in a world-traveling exhibit at the High Museum in less than two weeks. If there is probable cause to arrest and charge Defendant for the possession of this image, so too must there be probable cause to arrest and charge the aforementioned institutions and businesses.”

The latest round in Kramer’s case also has been written up by the Associated Press in a story that ran on the New York Times website.

Porter justified his conduct before the grand just to the Gwinnett Daily Post: “Gwinnett DA Danny Porter refutes claims by DragonCon founder’s attorney of prosecutorial misconduct”.

…“That fact that an image has been published is not in and of itself controlling on whether or not it’s child pornography,”Porter said. “It’s a question for the jury, and we’ll leave that question to the jury when the case goes to trial.”

The prosecutor also denied there was any manipulation of the grand jury. Kramer was already in jail on other charges related to accessing the county’s computer network.

“The whole thing about manipulating a grand jury — we routinely, particularly in a situation where, if we had a preliminary hearing and it’s dismissed, we still could have presented the case to the grand jury,” Porter said. “In this case, with him in custody, there was no reason to have a preliminary hearing and even if this speculation that he was going to succeed was true, we still could have presented the case to the grand jury and he would have been re-arrested.”

Although that indictment is listed as the reason for the motion, there are several other complicated layers of issues looming over this matter. One of them is another indictment, for making false statement, that was handed against Kramer on the same day as the sexual exploitation charge.

Kramer had accused Gwinnett County Sheriff’s Office Chief Deputy Lou Solis of physically assaulting him, but Porter said video evidence contradicted that claim. That led to the false statements charge, which Porter said he did not know about until the Sheriff’s Office sought a warrant for Kramer’s arrest. That is one of the cases Reba is trying to get Porter recused from.

Meanwhile, there have been new developments in the computer hacking case where Kramer is a defendant.

Kramer and his three hacking case co-defendants all entered not guilty pleas at their Oct. 10 arraignment hearing. Kramer, private investigator TJ Ward, Ward’s employee Frank Karic, and Superior Court Judge Kathryn Schrader have been indicted on three counts of felony computer trespass. GBI investigators allege that Schrader hired Ward to investigate her concerns that DA Danny Porter was trying to hack into her computer. It has yet to be shared why the judge believed that, and Porter has denied the claim. Kramer worked for Ward tracking the activity on a WireShark monitoring system installed on the judge’s computer.

Today, a Georgia state panel officially suspended Judge Schrader. The Atlanta Journal-Constitution reports:

Georgia’s Judicial Qualifications Commission handed down its ruling against Superior Court Judge Kathryn Schrader on Wednesday, nearly a month after she and three co-defendants were indicted on felony computer trespass charges. Schrader is accused of triggering a strange — and illegal — series of events by hiring a private investigator to look into her fears that someone was trying to access her work computer. 

In its ruling, the JQC’s hearing panel wrote that Schrader’s alleged actions and the subsequent criminal charges had adversely affected her ability to do her job.

“The Panel further finds that Judge Schrader’s personal decision to allow an outside third party to gain access to the County’s network — with its many subsequent repercussions, including the discovery that Judge Schrader’s actions allegedly enabled a convicted child molester to have access to Court data — also adversely affects the administration of that office, as well as the rights and interests of the public,” wrote Fulton County Superior Court Judge Robert McBurney, the presiding officer of the JQC panel.

The next hearing in Kramer’s criminal case is scheduled for Nov. 7.

13 thoughts on “Kramer’s Attorney Argues Image Isn’t Pornographic

  1. If I have a history of stabbing people in their bathtubs, and you find that I have David’s La Mort de Marat as my computer wallpaper, it won’t require that much work to understand why I chose that painting.

    The same applies here. While I admire desperation plays, this one is not going to fly.

  2. What irks me about this particular defense is that CBLDF has been taking the same tack (along with a dose of “No, graphic novels aren’t just — or even at all — for kids”) in a number of cases where they were appropriately trying to prevent some headline-hunting DA from pretending to be St.s Michael and George by beating up a small business or individual creator.
    @Douglas Berry: it’s all very well to say that Kramer intended to drool over the image rather than admire it, but I’m not convinced that’s a decision a court can make. What I’ve read about Kramer over too many years makes me hope Porter can hold together a case even if this gets lopped off.

  3. The supposed premise behind making child pornography illegal, despite the First Amendment, is that it depicts actual illegal acts performed on children. When there are no such illegal acts, then the First Amendment should prevail. It is a violation of the Constitution to punish people just for their sexual proclivities, even if those would be illegal if carried out. Drawings, comics, acknowledged artistic photographs, and fountains with peeing cherubs should not be considered child pornography if no children were involved illegally or harmed in their making.

    But when everyone can come together to punish a particular sort of wrongthink, no one wants to hear that.

  4. Hyman Rosen: You dish out this contempt — “punish a particular sort of wrongthink” — after playing a kind of “Get Out of Jail Free” card in your phrase “if no children were involved illegally or harmed.” You need to acknowledge that the legal precedents exist because people were charged and faced trial, and even some who were eventually deemed to have been exercising their First Amendment rights had to appeal their convictions as far as the Supreme Court. And others remain in prison because they did violate the law and/or harm children.

  5. @Douglas Berry:

    I really don’t like the idea that an image is child pornography if, and only if, in the possession of someone who has a previous conviction for possession of child porn, for a few reasons:

    If no children were harmed when a museum had the photo on display, they weren’t suddenly harmed if someone gives Kramer a copy of the photo, or he goes to the museum and looks at it there. Conversely, if children were harmed, “But I’m an art collector and an upstanding citizen” isn’t, and shouldn’t be, a legal defense.

    Your suggestion not only requires a court (judge and/or jury) to infer the defendant’s state of mind, it establishes a different standard for someone with a past conviction. It makes sense to watch them more closely; it doesn’t therefore make sense to punish them for things that would be okay if you or I did them.

    In terms of your analogy, if you have a history of stabbing people in bathtubs, but are somehow not in prison, maybe that screen wallpaper means you’re going to commit another crime. But it might also be a way of dealing with your impulse without actually stabbing anyone.

    If someone is attracted to children, and manages to deal with that by (for example) looking at cartoons, sculpture, or a clothing catalog, while scrupulously avoiding ever being alone with a child, that seems to be harmless. The goal should be to prevent harm (in this case, especially harm to children), not to increase the prison payroll.

    [I am not a llama; this is thinking about what the law should be, not necessarily what it currently is in the state of Georgia.]

  6. Vicki Rosenzweig: Rather than conduct a thought experiment about it here, couldn’t you search scientific studies that assess whether frequently looking at pornography has any effect on recidivism?

  7. That would also require a decision as to whether the picture in question is pornographic. Which is debateable in this case.

    Hymen Rosen made a good point, under the sneering. If he’d just resisted the urge to add the second short paragraph, it would have helped his case a lot.

  8. @Hymen Rosen

    The supposed premise behind making child pornography illegal, despite the First Amendment, is that it depicts actual illegal acts performed on children.

    Pornography isn’t defined by whether what it depicts is illegal.

    My understanding is that the premise behind the illegality of child pornography in particular is that the mere existence of lewd photos of children is an injury to the children, even after they become adults.

  9. Chip Hitchcock: @OGH: that would require a metastudy of how reliable the studies were.

    Sounds right up your alley.

  10. Pingback: Ed Kramer Takes Plea Bargain in Computer Trespassing Case | File 770

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