Tim Ryan, tryan@wolfrivermedia.com
A motion hearing in Shawano-Menominee County Circuit Court on Friday gave a rare glimpse into some of the thinking that can play into criminal defense strategies; particularly in cases where even defense attorneys are apparently overwhelmed by the evidence against their clients.
The court heard a motion Friday asking to overturn convictions on more than 100 counts of child porn possession against Damon J. Anker.
Anker, 36, was sentenced in April 2013 to 34 years in prison and another 17½ years of extended supervision. He had been convicted in February of that year after a five-day jury trial.
Anker is appealing the conviction on the grounds of ineffective counsel.
Anker’s attorney during the trial was Kevin Musolf, who took the stand Friday as a witness.
Anker appeared by video hook-up and waived the attorney-client privilege of confidentiality so Musolf could testify.
Anker’s new attorney for the appeal, Greg Petit, argued that Musolf conceded several elements of the state’s case against Anker by not challenging whether the children depicted in the images and videos found on Anker’s computer were underage or were engaged in sexually explicit activities.
Musolf had argued during the trial that the images and videos were inadvertently downloaded while Anker was browsing for legal porn. His defense rested on the claim that Anker did not knowingly possess child porn and had not looked at the material.
Musolf said his reason for not challenging the age of the children or the explicit nature of the videos was simple.
“The jury was going to see them,” he said. “They could tell if they were old enough or not, under 18 or not. If I’m sitting there arguing that this person, who would at least clearly appear to be under the age of 18, and I say, ‘they’re not under the age of 18,’ the jury would in my opinion potentially just say, ‘well, this guy’s an idiot. Obviously this person’s under 18 and he’s trying to tell me they’re not.’ Therefore, we’d lose credibility on our good argument, of the knowledge element.”
Musolf said he was provided with all the videos and images seized by authorities and randomly reviewed 24 of the files before deciding on the defense strategy. He said he discussed the strategy with Anker, but conceded there was nothing in writing showing Anker agreed to the strategy.
However, under cross-examination by District Attorney Greg Parker, Musolf acknowledged there were daily consultations during the trial with Anker, who never objected to how his defense was being handled.
Anker also testified at the trial, denying knowledge of the images and videos, but never addressing the age of the children or the acts depicted.
During the trial, Detective Sgt. Gordon Kowaleski, who investigated the case, read a description of each of the videos and images into the record, telling the jury that in many cases the children involved were known victims on file with the National Center for Missing and Exploited Children.
The descriptions included children, some as young as 8 years old, posing for nude photo shoots and having sexual acts performed on them.
Petit criticized Musolf for not challenging the NCMEC report given that no experts were called during the trial to testify as to the ages of the children.
Musolf said that based on the material he saw, and the material shown to the jury during the trial, there was no reason to object to the report.
He said he has seen some of the same victims from the NCMEC report in previous child porn cases he has defended.
In his ruling denying the motion to overturn the convictions, Judge James Habeck said that objecting to the NCMEC report might have strengthened the prosecution’s case, because it likely would have forced the state to bring in expert witnesses from NCMEC to testify about the ages and identities of the children.
Habeck said Musolf could be considered to have been ineffective on some legal points, but doubted that the outcome would have been any different if Musolf had taken some other tack.
Habeck said Musolf made a reasonable strategic decision not to challenge the age question.
“He made a strategic evaluation as to the fact that you call wolf if you keep saying this child isn’t under 18 and everybody on the jury is looking at an 8-year-old girl with no breast development and no pubic hair, ‘Who are they trying to kid?’” Habeck said. “All you do is ruin your own credibility.”
Friday’s hearing was the first step in Anker’s appeal process, which he can now take to the state court of appeals.