Attorney: Convicted child pornographer's photos were protected speech
By The Associated Press
07.09.02
DOVER, N.H. — A former prep school teacher argued that his hundreds of convictions for child pornography and sex assault should be overturned in light of a recent U.S. Supreme Court ruling and the trial lawyers' behavior.
David Cobb, 65, the former English Department chairman at Phillips Academy in Andover, Mass., was convicted in 1996 of attempted sexual assault, 53 counts of displaying child pornography and 267 counts of possession of child pornography. He is serving eight to 15 years in prison.
Lawyer Paul Haley argued in Strafford County Superior Court yesterday that Cobb's pictures — most made by pasting children's faces from clothing catalogues onto images of naked bodies from adult magazines such as Playboy — were not child pornography but artistic images protected as free speech under the First Amendment.
He cited an April ruling in which the U.S. Supreme Court said federal child pornography laws went too far in trying to ban computer simulations and other fool-the-eye depictions of teens or children having sex.
"This simply isn't child pornography," Haley said. "Clearly these are collages. These were all things he created."
Although the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition that "virtual pornography" was protected as free speech, it let stand another section of the federal law that bans pornographic images created by computer alteration of innocent pictures of children, such as the grafting of a child's school picture onto a naked body.
County Attorney Janice Rundles said even if the recent ruling could be applied retroactively, Cobb couldn't benefit because his lawyers did not raise the issue in an earlier, failed appeal.
Haley also asked Cobb's trial lawyer, Cathy Green, why she did not raise the free-speech issue at trial or in the earlier appeal. He also said she should have argued that Cobb's photos were artwork, not pornography.
But Green said both strategies were rejected because Cobb himself acknowledged some photos showed actual naked children, not just cut-and-paste creations. Challenging the charges based on the First Amendment or calling in an art expert would have only drawn attention to that fact, she said.
"Every time we came back to the photographs, we were left with the fact that there were actual naked live children in some of them," she said. "Frankly, we thought we'd be more successful without highlighting what each individual photograph was."
Cobb, dubbed "Pumpkin Man" during his trial, was arrested in August 1995 and accused of trying to lure a 12-year-old Farmington boy into the woods. At the time, he was carrying a backpack containing children's underwear, a pumpkin mask, a list of payments for "helping pumpkin" perform various sexual acts and hundreds of pornographic images.
At yesterday's hearing, Green also defended her handling of then-prosecutor Lincoln Soldati. Haley argued that Soldati made a farce of the trial by wearing a baseball cap with the name "COBB" on it to a pre-trial hearing and making fun of Cobb's career by pronouncing "Andover" in a snobby tone.
Green said she never saw the hat and that she was well aware of Soldati's flair for drama. She had a judge warn him to behave before the trial and objected whenever she felt he was out of line, she said.
Soldati testified that he only wore the hat in the courtroom lobby and said he didn't remember how he pronounced Andover. Asked if he belittled Cobb during the trial, he said, "I haven't a clue to what you're talking about."
He also disagreed with Haley's argument that he failed to disclose that he had once worked for the trial judge when both were in private practice. Soldati said he only worked for Joseph Nadeau for about a year early in his career, and Green said she was pleased with Nadeau's appointment to the case because he frequently ruled in her favor.
Cobb will be eligible for parole in December 2003. Haley said Cobb spends much of his time sketching other inmates and prison scenes.
"He's an artist," he said.