BY JIM DOOLEY – Simon Jasper McCarty, a British citizen who has been held without bail here for more than three years on child pornography charges, is finally scheduled to go on trial next month, but there are still questions about whether prosecutors will be able to present the most damning evidence against him.
That evidence is more than 60 videos depicting McCarty having sex with pre-pubescent boys in the United Kingdom and Nepal, according to federal court records. McCarty reportedly helped operate an orphanage in Nepal.
The videos were stored on a computer external hard drive packed inside McCarty’s luggage that was seized by law enforcement agents after he was initially detained at the airport in Hilo Aug. 5, 2008.
Lengthy delays in the case to date have been caused by a continuing court dispute over the legality of searches of McCarty’s bags and the seizure of what was found in his luggage.
“The competing interests of personal privacy and the safety of the traveling public” are at the heart of that legal dispute, the U.S. 9th Circuit Court of Appeals said in a decision August 3 – almost three years to the day after McCarty was first locked up.
Suspicions about McCarty were first raised when Transportation Security Administration officers at the Hilo airport were screening McCarty’s bags for weapons or explosives.
According to court records, frontal photographs of naked or partially clothed children spilled from an envelope onto a table when a TSA officer was examining the contents of one of McCarty’s bags.
That’s when complications crept into the legal case against McCarty. TSA officers are authorized to screen baggage for explosives and weapons but not to search for other contraband.
Subsequent searches were based on now-conflicting accounts of what photos the TSA personnel saw, when they summoned police and how the police obtained McCarty’s permission to go through his baggage and electronic devices.
Those searches turned up a trove of child pornography stored on McCarty’s laptop computer and on the separate hard drive.
That additional material included “almost 400 still images of child pornography and almost 200 child pornography video clips,” according to court records.
The videos included 60 of McCarty which appeared to be “self-made” and which showed him having sex with three different underage boys.
McCarty’s lawyer, William Harrison, filed motions to suppress that evidence, arguing that the searches of his luggage and computer equipment were illegal.
U.S. District Court Judge J. Michael Seabright granted the motion in November 2009 and the U.S. Attorney’s office appealed that decision.
Before the appellate court ruled, Harrison asked that McCarty be released on bail because the evidence against him had been thrown out of court.
Harrison also argued that if granted bail, McCarty would be immediately re-arrested by Immigration authorities and deported “to the United Kingdom where he will face child pornography charges.”
Prosecutors here opposed that option and Seabright rejected it, finding that “what may occur in the United Kingdom is wholly speculative.”
Then the appellate court overturned Seabright’s decision to suppress the evidence against McCarty, directing Seabright to hold additional hearings on the admissibility of some of the evidence.
Those hearings are still underway and Seabright today heard lengthy arguments from Harrison and Asst. U.S. Attorney Amy Olson in the evidentiary dispute, focusing in part on the legal basis for the government’s search of the external hard drive.
At the close of the hearing, Seabright asked the lawyers to submit still more information to him before he rules.