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11 people in Erie County wrongfully convicted under invalidated law, judge says

More than two decades ago, a federal judge in Manhattan pointed to the unique nature of cyberspace and declared one of New York State's child exploitation laws unconstitutional.

She also ordered the state's 62 district attorneys to stop enforcing it.

Erie County didn't get the message.

Since that ruling in 1997, county prosecutors used the same law – dissemination of indecent material to minors – to charge at least 25 people.

By their own admission, 11 of them were convicted.

"Those convictions will continue, at least in Erie County, because the Erie County District Attorney's Office essentially has declared that a 21-year-old statewide injunction does not apply to it," U.S. Magistrate Judge Hugh B. Scott said in a recent decision.

Scott said the county became aware of the wrongful prosecutions and convictions earlier this year but never indicated it would stop them.

He also noted that a 2003 conviction in New York City was overturned because of the injunction.

"The open and casual disregard for an enforceable federal injunction – not to put too fine a point on it – stinks," the judge said.

A county prosecutor acknowledged the convictions during a federal court proceeding before Scott, but stopped short of describing them as wrongful convictions.

"Those convictions will continue, at least in Erie County, because the Erie County District Attorney's Office essentially has declared that a 21-year-old statewide injunction does not apply to it," U.S. Magistrate Judge Hugh B. Scott said in a recent decision. (File photo)

The county's stance on the statute also raises the question: Are other counties still prosecuting based on the law that was deemed unconstitutional?

"Our practice is not to charge under that statute," said Niagara County District Attorney Caroline A. Wojtaszek.

Wojtaszek said her office's investigations tend to uncover facts that lead to a slightly different charge, but she understands how Erie County came to prosecute under the statute. She noted that even now, 21 years after the injunction, the charge is still listed in the state's penal law.

"I can absolutely see how it happened," she said. "It's still on the books."

The county's prosecutions are front and center because of a federal child porn prosecution and the defendant's efforts to suppress evidence seized by the State Police.

The evidence, which includes a laptop, was taken from defendant Cameron Stroke, a West Seneca man, in 2011. To justify their search warrant, investigators said Stroke was suspected of disseminating indecent material to minors.

The search took place more than 14 years after U.S. District Judge Loretta Preska ruled the statute unconstitutional – a violation of the Commerce Clause – and ordered a permanent injunction.

Her decision came in a case, American Library Association v. Pataki, that focused on concerns that the law was overly broad and might ensnare harmless communications.

When Preska issued her decision, she ordered the state's lawyers to inform district attorneys across New York.

Two decades later, Stroke was charged with possession of child pornography and, as his prosecution began to unfold, it appeared that notice might not have gone out to prosecutors.

Initially, no one in the State Attorney General's Office could locate a letter to the DAs, the first indication that maybe it was the state that dropped the ball.

"The court is, quite frankly, disturbed at the level of negligence, to be charitable, or passive aggressive defiance, that has occurred and continues to occur," Scott said of the Attorney General's Office.

Later, when The Buffalo News made inquires about the statute, the Attorney General's Office looked again and was able to locate a letter sent out by then-Attorney General Dennis Vacco.

The letter took the onus off the state and put it squarely on Erie County, which now appears to have been informed about the injunction and nevertheless proceeded with the prosecutions of at least 25 people.

Before the letter was discovered, Erie County District Attorney John J. Flynn, who took office two years ago, agreed to be interviewed. He canceled when the letter was found late last week.

Stroke's defense lawyer, appearing in federal court Friday, said the state's inability to find the letter, only to discover it down the road, raises questions about the legitimacy of his client's prosecution.

"This whole case is troubling," James W. Harrington told Scott at one point. "No one can find records. No one can find out what happened. There's a real odor to this."

Federal prosecutors countered by reminding the judge that other counties prosecuted under the law and pointed to at least two convictions that were later overturned on appeal.

Their argument is that the investigators who used the law to justify a search warrant were unaware of the injunction years earlier.

"There's no bad faith here," said Assistant U.S. Attorney Aaron J. Mango. "There was no effort not to follow the law."

In the Stroke case, the injunction could mean the suppression of evidence seized by the State Police and later turned over to the FBI when it became a federal investigation.

When Scott makes a final decision, his recommendation will be forwarded to U.S. District Judge William M. Skretny. Skretny will make the final decision on whether to suppress the evidence.

Scott, in an earlier recommendation to Skretny, noted that there is already a New York case involving the statute in question that, on appeal, resulted in the conviction being overturned.

In 2008, a state appeals court vacated one of the convictions – attempting to disseminate indecent material to minors – against William Burgess of New York City. Prosecutors in the case supported Burgess' challenge and pointed to American Library Association v. Pataki.

As for the 11 convictions in Erie County, in the past, wrongful convictions have led to lawsuits against law enforcement agencies.



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