"The main issue in the case always has been this treatment Mr. Solon received at the trial with the district court judge," said Megan Hayes of Laramie
Clarence Brimmer presided over the trial of Nathaniel "Ned" Solon, who was found guilty of possessing and receiving child pornography in January 2009.
Hayes appealed the case to the Denver-based 10th U.S. Circuit Court of Appeals, which upheld Solon's conviction two months ago.
She now intends to take the case to the nation's highest court to review the 10th Circuit's decision, she said.
Appellate judges Deanell Reece Tacha, Stephanie K. Seymour and Carlos F. Lucero agreed the government's case against Solon was strong, and the court did not violate his rights to a speedy trial and to adequate funding for his court-appointed expert witness.
Tacha and Seymour also agreed Brimmer erred when he abruptly left the courtroom without a recess for six minutes as the defense began its closing arguments. Brimmer told the court after his return he had to mail some letters because his secretary was playing canasta.
But that did not rise to the level of "structural error," meaning it was so offensive that it affected the trial's outcome, they wrote.
Brimmer's absence, he wrote, coupled with his comments about computer forensic researcher Tami Loehrs violated Solon's due process rights.
Loehrs, of Tucson, Ariz., had been hired by the court with an agreed-upon and industry standard fee of $20,000. Loehrs has conducted hundreds of investigations to determine what evidence a computer contains, how it arrived there, and what it means.
Brimmer didn't like her, Lucero wrote.
He berated Loehrs for her $10,603.90 bill, called her an "abrasive witness," and told Solon's attorneys not to use "this woman with pretty exalted ideas of her worth,'" according to court documents.
When asked about an aspect of her research during the trial, Loehrs said she stopped because of the concerns over her bills.
After the prosecution objected, Brimmer said, "Members of the jury, the witness just said that she was stopped and coupled with her testimony yesterday there is the implication that the court stopped her from working. That is absolutely untrue. It is a falsity, and you are instructed to ignore it. And we will hear no more such testimony."
Lucero wrote Brimmer's explanation of his absence implied a secretary's canasta game was more important than Loehrs' theory that Solon's computer had child pornography placed on it because of a computer virus or Trojan.
"This defense theory has been successfully employed in other cases, and has been the subject of some media attention," Lucero wrote.
Brimmer's comments and behavior undermined the possibility of a fair trial, he wrote.
"Instead, the district court instructed the jury that Solon's primary witness was dishonest and that Solon's theory was unworthy of the court's time. It may as well have directed a verdict of guilty."
"It is the structural error that is the supreme most issue by far," she said.
Brimmer did not return calls seeking comment.
Reach Tom Morton at (307) 266-0592, or at firstname.lastname@example.org.