FL- Jury calls renderings child porn

6-14-2009 Florida:

BARTOW - Although a jury convicted a former Polk County school principal on child pornography charges Friday, appeals courts likely will have the last word on whether his actions were a crime.

Prosecutors say John Stelmack superimposed the faces of two girls on photos of nude women to make it appear as if the girls were in lewd poses.

Stelmack, 62, remained quiet and showed no visible reaction as the verdict was read. He faces up to 25 years in prison.

Courts have ruled that most pornography is protected by the First Amendment. Child pornography is not, however, because the government has a strong interest in protecting children from exploitation.

But what about pornography that appears to depict children but was produced without involving children in lewd or sexual activity?

"There are definite potential constitutional problems," said Becky Steele, an American Civil Liberties Union attorney. "You can't constitutionally premise legislation on the desirability of controlling a person's private thoughts."

In Stelmack's case, she said, "No children were actually involved in sexually harmful conduct."

The U.S. Supreme Court in 2002 overturned a federal law that made computer-simulated child pornography illegal. The high court ruled that because the computer-generated depictions were not the product of the actual sexual abuse of children, they were protected by the First Amendment.

Stelmack's attorney, Robert Gray, maintains the photos at the center of his client's case are not child pornography.

After the verdict, Gray asked that Stelmack be allowed to remain free pending his appeal, but the judge ordered him held without bail.

Circuit Judge Mark Carpanini refused to dismiss charges against Stelmack before trial. Although Carpanini didn't issue a written opinion, his rationale was similar to that rendered by another judge in a similar Polk case.

Danny Lynn Parker, a volunteer Sunday school teacher, was charged with producing child pornography after authorities said he took photographs of children and superimposed their faces over adult images.

In Parker's case, which is set for trial in July, Judge Donald Jacobsen ruled the prosecution could proceed because the faces were of "identifiable real children in pornographic photographs" of "what appear to be children engaged in sexual conduct."

Jacobsen's decision did not mention the 2002 high court case, Ashcroft v. Free Speech Coalition.

In Stelmack's case, the girls whose faces were used were 11 and 12 at the time, a Polk school investigator testified.

The investigator, Chuck Smith, said he found four photos in which shots of the girls' faces were superimposed on photos of at least one nude woman. The photos were found in a briefcase in Stelmack's office closet at Scott Lake Elementary in Lakeland.

Charles Rose, a Stetson University College of Law professor, said Florida lawmakers constructed the state's child pornography statute "to get around the Ashcroft case problem. Whether the Florida law will hold up on appeal I don't know."

Rose said he thinks Stelmack's case will hinge on just how explicit the photographs were and whether the courts deem them to involve sexual conduct, rather than mere nudity.

"There has got to be a sexual conduct component to it," Rose said. ..Source.. by ELAINE SILVESTRINI