Andrew Welsh-Huggins
Associated Press
Jul. 18, 2003 12:00 AM
COLUMBUS, Ohio - In a victory for free-speech advocates, an Appeals Court on
Thursday threw out the guilty plea of a man imprisoned for writing fictitious
stories in which he fantasized about molesting and torturing children.
Lawyers specializing in the First Amendment believe Brian Dalton was the first
person in the United States successfully prosecuted for child pornography that
involved writings, not images.
The stories, which prosecutors say were never acted on, were about three children,
ages 10 and 11, being caged in a basement, molested and tortured.
Dalton, 24, of Columbus, pleaded guilty in July 2001 to pandering obscenity
involving a minor. 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. ACLU attorneys then appealed.
The 10th Ohio District Court of Appeals in Columbus sent Dalton's case back
to the Franklin County court, ruling that Dalton received ineffective legal
assistance at trial.
His attorneys had asked the court to dismiss the case on the grounds that prosecuting
someone for their private thoughts and writings violates free-speech protections.
Benson Wolman, an attorney representing Dalton, said Thursday's ruling gives
Dalton a chance to make that case before a trial court judge.
Franklin County prosecutor Ron O'Brien said he hasn't decided whether to appeal
to the Ohio Supreme Court or put Dalton on trial again.
Dalton was sentenced to seven years in prison, plus 4 1/2 years from a
1998 child pornography conviction because he violated probation by possessing
the journal.
The Family Research Council, which fights child pornography, said it believes
a case could still be made against Dalton "in the mere creation and possession
of child pornography writing," spokeswoman Kristin Hansen said.
First Amendment advocates welcomed the decision.
"I was just startled by the original development of the case, the notion
that what are essentially thoughts or one's tortured imagination could become
the basis for prosecution," said Robert O'Neil, director of the Thomas
Jefferson Center for the Protection of Free Expression.
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