Kansas Court Sends Back Child Pornography Case Based on Violation of Plea Deal – State v. Peterson

February 25, 2013 by David S. Seltzer

Because I defend serious cyber crimes charges across the United States, I was interested to see a recent decision sending a Kansas child pornography case back to trial court because of a prosecutor’s mistake. In State v. Peterson, Robert Peterson of Kansas was charged with attempted sexual exploitation of a child in connection with child pornography found on his computer. He was sentenced to about four and a half years in prison, with lifetime supervision after his release. His appeal contested the lifetime supervision and the proof of aggravating factors, as well as comments by the prosecutor that he claimed violated his plea agreement. The Kansas Supreme Court agreed on this last count and sent the case back without considering the other two arguments.

In return for a no-contest plea, the prosecutors in Peterson’s case agreed to bring his two counts of sexual exploitation of a child down to one count of attempted sexual exploitation. The agreement required the state to not object to Peterson’s request for a dispositional departure to probation only, and to stay silent at sentencing unless there were misstatements of fact. At his second sentencing hearing, he brought in a psychologist, Robert Barnett, to testify that Peterson was a good candidate for probation. Barnett was cross-examined by a prosecutor who had not handled Peterson’s plea agreement; the questions revealed that Peterson had lied about how he found the child pornography. Further questioning revealed that Peterson had not told Barnett about three of the five molestation accusations made against Peterson in the 1990s, the ages of the accusers, or that 617 pictures of child pornography were on the computer.

Peterson’s attorney objected to no avail, and made comments after the cross-examination that amounted to an accusation of violating the plea deal. The prosecutor’s statement in response said, in relevant part, that Peterson “wasn’t being honest” and “cannot or will not address his looking at child pornography.” Without focusing explicitly on that statement, the Kansas Court of Appeals ruled that the statements were legal because they corrected misstatements.

The Kansas Supreme Court disagreed. Unlike in the case the appeals court focused on, Peterson’s plea bargain expressly required silence at sentencing, and there was no agreed-upon sentence. No previous Kansas case addressed a plea agreement to stay silent, but various other states’ cases have held that breaking a silence agreement is a material breach, except when necessary to ensure the court has all relevant information at sentencing. In this case, the court found that the questions were appropriate, since Barnett’s incomplete and inaccurate information could have given the court the wrong impressions of the facts. However, it found the prosecutor “went too far” with her statement that Peterson couldn’t or wouldn’t address his child porn problem. Thus, it remanded the case for re-sentencing in front of a different judge, according to the terms of the agreement.

As a criminal defense attorney, I strongly agree that prosecutors should hold to their plea agreements. The high court noted that plea agreements are treated as contracts, and courts are not inclined to break contracts without a good reason why. In this case, the prosecutor could have gotten away with pushing the limits if she had confined her remarks to correcting the apparent untruths Peterson had told the psychologist—but the conclusions she suggested were not mere corrections of untruths. Defendants make plea agreements in part to avoid trials and features of trials such as cross-examination and closing arguments. If the prosecution is permitted to prosecute, the defense should be able to defend—which is not permitted after a plea agreement. In child pornography cases, where the defendant is accused of a crime that most juries won’t find sympathetic, this can be very important.

Based in Miami, Seltzer Law, P.A., represents clients across the United States who are accused of serious crimes involving computers, technology and the Internet. To learn more about our expertise and tell us your story, call today for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Eleventh Circuit Vacates Conviction Because Judge Improperly Participated in Plea Discussions – U.S. v. Davila

Waiving Right to Appeal Means Waiving Right to Challenge Sentencing Errors, Eleventh Rules – U.S. v. Smith

Sixth Circuit Rules Defendant Cannot Be Sentenced Twice for Possession and Receipt of Child Porn – U.S. v. Ehle