COLUMBUS, Ohio A judge has dismissed a child pornography charge against a man who depicted molestation and torture of children in a private journal, saying the law only covers acts involving actual children.
Franklin County Common Pleas Judge David Cain said yesterday that the charge did not meet the standard of the Ohio law that prosecutors used.
Brian Dalton believed to be the first person in the United States successfully prosecuted for child pornography for writings instead of images remains under house arrest at his parents' home, at least until Cain's ruling is put into court records.
The stories, which prosecutors say were made-up and never acted on, were about three children ages 10 and 11 being caged in a basement, molested and tortured. The journal was so disturbing that grand jurors asked a detective to stop reading after about two pages.
Cain said it was clear that Dalton's writings were never intended to be distributed to anyone.
"If the journal was ever taken out of the apartment, it was never off the defendant's person. No attempt was ever made to distribute, publish or share the journal with anyone," Cain wrote in his decision.
Dalton pleaded guilty in July 2001 to pandering obscenity involving a minor, which falls under Ohio's pornography law. He later asked to withdraw the plea so he could fight the constitutionality of the law, but Franklin County Common Pleas Judge Nodine Miller refused. American Civil Liberties Union attorneys then appealed.
The 10th Ohio District Court of Appeals dismissed Dalton's plea in July, saying he had poor legal assistance initially. The Ohio Supreme Court refused to hear the case.
Dalton had argued that his former trial lawyer didn't inform him of the legal implications of a guilty plea or ask for an immediate dismissal on First Amendment grounds.
Since September he has been on house arrest at his parents' home in Lancaster, about 30 miles southeast of Columbus, awaiting a new trial in Franklin County Common Pleas Court.
Benson Wolman, who now represents Dalton, said he was pleased with Cain's ruling.
"This is the second court to decide that something was wrong in the first place," Wolman said. "What you write in your private notebook should not be the subject of prosecution."
Franklin County Prosecutor Ron O'Brien said no decision would be made on whether to appeal the case until he discussed the matter with his office's appellate lawyers.