|Casper man argues computer virus allowed his computer to be infected with illegal images|
Court upholds child porn conviction
By MATT JOYCE - Associated Press writer | Posted: Saturday, February 20, 2010 12:00 am
CHEYENNE -- The 10th Circuit Court of Appeals has upheld the child porn conviction against a Casper man who argues that a computer virus allowed his computer to be infected with illegal images.
A three-judge panel of the Denver-based court affirmed Nathaniel Solon's conviction Wednesday for possession and attempted receipt of child pornography.
Solon, who maintains his innocence, is serving a six-year prison sentence for the November 2008 conviction. Law enforcement officials say the porn was found in 2006 in a folder used by a file-sharing program on Solon's computer.
Solon argued in his appeal that the government denied him his rights to a complete defense and a speedy trial. He also argued that his case was undermined by Judge Clarence Brimmer's decision to leave the courtroom for six minutes during closing arguments by Solon's defense attorney.
Upon returning to the courtroom, Brimmer apologized for his absence and explained that it was his secretary's afternoon to play canasta and he needed to send some letters, according to appellate court records.
Megan Hayes, a Laramie attorney representing Solon in his appeal, said judges should be impartial.
"The judge's leaving in the middle of defense counsel's summation of the defense expert's testimony at trial was a comment by the judge on his feeling about the defense case, and we felt it was very prejudicial of him," Hayes said Friday.
Hayes said she's planning to ask the entire 10th Circuit Court to review the appeal.
The three circuit judges on the panel were in agreement in rejecting Solon's appeal arguments related to denial of his rights to a complete defense and a speedy trial. However, Circuit Judge Carlos F. Lucero dissented from the majority when it came to Brimmer's absence from the courtroom.
Lucero wrote that the absence compounded comments Brimmer had made regarding the fees charged by defense witness Tami Loehrs, a computer forensic examiner, to the court.
Loehrs' testimony raised questions about whether Solon's antivirus software was working properly and whether an infection led to the presence of the images on Solon's hard drive. She said she found no evidence the five child porn videos on Solon's computer had been viewed or downloaded fully.
"I have no confidence in the jury verdict under review," Lucero wrote in his dissenting opinion. "Had at least one juror credited Loehrs' testimony, Solon's jury may well have found reasonable doubt. But the jury was unfairly prejudiced against Loehrs by the comments and actions of the district court."
Brimmer didn't immediately return a phone message seeking comment on the case.