Defense’s use of video of child sex argued

Thursday, April 15, 2004 | 9:34 a.m.

CARSON CITY -- The Washoe County district attorney's office told Nevada Supreme Court justices Wednesday that a videotape showing sexual activity of a 13-year-old girl is child pornography and defense lawyers are not entitled to have copies to prepare for trial.

Deputy District Attorney Gemma Greene Waldron argued before the court that both federal and state law allow law enforcement officers to have this evidence but it is a crime for anyone else to possess it.

But justices indicated they agreed with defense lawyer Martin Wiener that the defense was entitled to have a copy of the tape of sexual activities of the girl and three adults at a party in a Reno apartment.

Wiener argued that a copy of the videotape was needed to determine if the girl consented to sexual acts, to determine identities and other aspects in getting ready for trial. Experts for the defense should be allowed to examine the video, he said.

He agreed that some restrictions could be put so the tape does not get into general circulation.

Claude Epperson, Ryan Barnes and Doni Hodge Brittania are charged with such crimes as sexual assault, lewdness with a minor and taping pornography.

Attorneys said this was a case of "first impression" in Nevada, meaning the Supreme Court has not ruled on the issue.

Waldron told the court that the videotape was "illegal contraband" and the prosecution doesn't turn over marijuana and other drugs to the defense before trials. She said the defense lawyers have been allowed to view the tape but have not been permitted to have copies.

She said she didn't want to see defendants have access to copies to view at will so they could experience "titillating" feelings.

Justice Deborah Agosti said the request for discovery by the defense "seems to be legitimate." She added the "defense is entitled to access of evidence."

Wiener accused Waldron of coming to the court "with unclean hands." He said the district attorney's office has opposed allowing the defense to have a copy of the tape. But now he says the prosecution is willing to have release a copy if there are restrictions on its access.

Wiener said he would not object to the limitations on the using the tape. But he added, "It's impossible to put on a defense without the videotape. The primary evidence is the tape."

Agosti said she does not want to see the defense, if the tape is release, abuse it and allow it in general use.

Justice Mark Gibbons agreed. "We don't want the victim embarrassed any more," he said.

Wiener said the defense lawyers in the case were "officers of the court" and would not abuse any court order.

The case is before the Supreme Court on a ruling by District Judge Steven Kosach that the defense was entitled to a copy. The high court took the arguments under submission.