The opinion of the court was delivered by: Gene E.K. Pratter,j.
Mr. Devine is facing four felony counts: two counts of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) and two counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). That these are serious charges that engender the heights of professional and public passions and carry serious and significant potential punishment - - all prompting good faith debate and dispute, including about lengthy mandatory minimum punishment upon conviction - - is at the root of the motions that are resolved in this Memorandum and the accompanying Order.
For immediate purposes, the operative details and legal principles that govern the outcome of the pending motions do not so much concern what Mr. Devine has allegedly done to draw these charges as what has occurred, or not occurred, and what has been discussed, or not discussed, about lie detector tests (polygraphs) since he became involved in the criminal justice system. Specifically, Mr. Devine has presented a Motion to Enforce Plea Agreement and a Motion to Dismiss Counts I through III of Superceding Indictment. Both motions are opposed by the Government; both motions were the subject of an evidentiary hearing and oral argument; both motions have been fully briefed.
At the outset, the Court sees merit in outlining what is not at issue in this Memorandum. It does not determine whether the Defendant did or did not distribute or possess child pornography or even admitted any such conduct. It does not resolve whether he did or did not ever have sexual contact with any child or even if any child ever claimed as much. The Memorandum is not dependent upon whether the Defendant failed or passed any polygraph. The Memorandum is certainly not about whether polygraphs are good, useful, benign, beneficial, a boon or boondoggle, or the gold standard in any kind of case. The issue at hand is much more basic, even though its importance to the parties is undeniable.
For the reasons outlined below, and after careful review of the materials submitted, the testimonial and documentary evidence placed into the record and the appropriate statutory and case law, both motions are denied.
Delaware County law enforcement personnel, acting upon information emanating from an internet site and then processed through the National Center for Missing and Exploited Children, applied for and obtained a search warrant for David Devine's residence. They executed the warrant on August 4, 2010. As of that date, Mr. Devine's employment history included his work as a first grade teacher in a West Chester, Pennsylvania public elementary school, his work as a substitute school teacher in a number of school districts, his management of a summer day camp for young children at his home, his coaching gymnastics for young children and, finally, his offering massage therapy for special needs children. At the time of the search warrant, Mr. Devine lived with a woman and her two young sons.
As a result of the search, on August 4, 2010, Mr. Devine was arrested by state authorities. A Pennsylvania state police forensic examiner examined Mr. Devine's computer and from it recovered many child exploitation images. In September 2010 the Delaware County District Attorney charged Mr. Devine with a number of offenses relating to possession of images and videos of children engaged in sexually explicit conduct. Soon after being arrested Mr. Devine took, but failed, a polygraph examination administered by the local law enforcement officials. During the early August to early December 2010 time period, counsel for Mr. Devine engaged in various discussions and potential plea negotiations with the Delaware County prosecutors.
By December 6, 2010 Mr. Devine and his counsel learned that federal law enforcement authorities were seriously considering taking over the prosecution. Accordingly, the County prosecutors declined to proceed further with plea negotiations. Defense counsel, himself a former federal prosecutor, immediately turned his attention to the effort of trying to dissuade the federal authorities from adopting the case. To that end, defense counsel met on December 7, 2010 with the assigned prosecutor, her immediate supervisor and the head of their division. The focus of this first meeting was defense counsel's effort to share background information about Mr. Devine in an effort to avoid the adoption of the prosecution by the federal authorities. During that meeting there was no discussion about a polygraph test.
Slightly more than a week later, on December 16, 2010, another meeting convened among the assigned assistant United States attorney, her supervisor, defense counsel and a consulting forensic psychologist, Dr. Elliot Atkins. Defense counsel had enlisted Dr. Atkins as part of the effort to explain portions of Mr. Devine's personal history and, in turn, in the hope of still being able to convince the federal authorities to return the case to the state prosecutors. Dr. Atkins testified at the hearing on the defense motions. He described the December 16 meeting as one in which he explained his work and progress with Mr. Devine and in which defense counsel demonstrated concerns about Mr. Devine's initial failure of the polygraph test administered right after having been arrested. Dr. Atkins testified that he gathered from the meeting that the Government lawyers (most particularly the supervising lawyer) harbored many concerns about Mr. Devine and were likely to be very reluctant to omit the possibility of the statutory mandatory minimum jail sentence. In the final analysis, Dr. Atkins admitted under oath that at the December 16 meeting he heard no offer by the Government as to terms under which the Government would drop the more serious charges against the settlement; nor did he hear or see any manifestation of an agreement about a polygraph or even the seeds of such an agreement. As described by defense counsel, during the meeting defense counsel asked the senior Government lawyer present to return the case to Delaware County. Defense counsel also knew from the meeting that the senior prosecutor was very concerned to know more about Mr. Devine's "career choices" and activities. Specifically, the federal prosecutors expressed their concerns about Mr. Devine's documented career choices, the proximity that his employment placed him vis a vis young children, and the possibility that Mr. Devine had engaged in sexual activities directly with other children. During the December 16 meeting, the senior Government lawyer present explained that in order to consider limiting the charges to exclude charges carrying a mandatory minimum sentence the Government would require Mr. Devine to undergo a polygraph examination as one way to address those kinds of concerns..
All witnesses acknowledged that defense counsel and the supervising prosecutor know and respect each other and had even worked together in the same U.S. Attorney's office a number of years ago, as had defense counsel and the assistant United States attorney in the county district attorney's office.
Following the December 16 meeting, the discussions and negotiations continued. Approximately a week after the meeting the supervising prosecutor informed the defense counsel that the federal Government had determined to keep the Devine prosecution. Further, defense counsel was told that in order for the prosecutors to consider forgoing charging a count or counts carrying a mandatory minimum sentence, Mr. Devine would have to pass a polygraph that addressed the Government's concerns about Mr. Devine's career choices. In response, defense counsel said that he would think about it and get back to the prosecutors.
The Government filed an Information charging Mr. Devine with distribution of child pornography. The prosecutors had then believed that Mr. Devine would be entering a prompt guilty plea. Therefore, there was neither an arrest nor other processing of Mr. Devine at that time. The assistant prosecutor and defense counsel had a phone call conversation on January 4 about filing of the Information. Then, by letter dated January 6, 2011, defense counsel informed the assigned assistant U.S. Attorney that the defense would ...