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State Supreme Court to decide child pornography sentencing

Minnesota's Supreme Court heard arguments that could radically affect the amount of prison time for possessing child pornography. At issue is whether each downloaded image represents a separate crime or whether downloading child pornography is one illegal act. The arguments stem from the case of a Macalester College student who pleaded guilty to 19 counts of possessing and disseminating child pornography.

St. Paul, Minn. — Two years ago, Illinois authorities contacted Minnesota officials that someone was distributing child pornography off a computer server at Macalester College in St. Paul. Police traced that server to Joshua Bertsch's dorm room.

Police found Bertsch, 22, ran a child porn exchange. He would post images on his server, go to class, and other users would send him their images in return. Court documents say Bertsch's hard drive contained thousands of sexual images and movie files of children, including images of toddlers.

One of the questions for justices is how Bertsch and others like him should be sentenced. Should Bertsch face separate penalties for each image because each image represents a different victim? Or should he face one general penalty for possessing child pornography?

Bertsch's attorney Theodora Gaitas told the court that allowing sentencing for each image would lead to excessive prison time.

Is it appropriate to permit a separate sentence for each of the offenses, merely by virtue of the fact that a different child is portrayed in each image?
- Defense attorney Theodora Gaitas

"We're talking about an age where these images can be very easily downloaded, thousands at a time. Treating the images of particular children as victims opens the door to very dramatic sentences, such as the sentence in this case where Mr. Bertsch is serving six and half years," Gaitas said.

"The fact that it's easy to buy something doesn't make it less criminal," Justice Helen Meyer responded. "If I have to drive across town and buy the image rather than just turn on my computer and buy the image, why is that not a victimization in the same way?"

Gaitas said it was important to remember that while Bertsch possessed and disseminated the pictures, he did not create them.

"The court must focus on what the actual conduct was in determining what is an appropriate sentence," argued Gaitas. "Is it really appropriate to permit a separate sentence for each of the offenses, merely by virtue of the fact that a different child is portrayed in each image?"

Assistant Ramsey County Attorney Jeanne Schleh argued it was appropriate. Schleh, who represented the state, said not only is a child victimized at the time he or she was photographed, but also each time that photo circulates. She said circulation fuels the market for more images and more abuse.

"The mere existence of an image invades the privacy of that child. It's an ongoing event, perpetuated every time it's passed on to a new possessor," Schleh said.

On another issue related to Bertsch's case, justices appeared deeply troubled by how a Ramsey County prosecutor handled the Bertsch case in the beginning.

About two and half months after Bertsch pleaded guilty, and just a week before sentencing, the prosecutor amended the original complaint and added new charges.

Schleh was not that prosecutor. Justice Alan Page questioned her about the amended complaint.

"From the outside, it looks like this amendment to the complaint was merely for manipulating the sentence," Page said.

Schleh said the act was not intentional.

"Your honor, I'm afraid that I have to think that it was not an attempt to manipulate the sentence; it was inartful charging in the first place," Schleh said.

Bertsch's first attorney never objected when prosecutors applied additional charges to his client's guilty plea. Because he did not object, the justices do not have to rule on that issue. Bertsch's current attorney, Theodora Gaitis, took over the case when Bertsch decided to appeal.

The Minnesota Supreme Court took the case under advisement and will likely rule on it this term.

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