Judge Calls Electronic Monitoring Excessive Bail in Child Pornography Case

4-3-2010 New York:

Eastern District of New York Judge Jack B. Weinstein has held unconstitutional the electronic monitoring of a Brooklyn pizzeria owner awaiting retrial on child pornography charges.

The judge found that the monitoring, mandated by the Adam Walsh Child Protection and Safety Act of 2006, constitutes unconstitutionally excessive bail and violates defendant Peter Polouizzi's procedural due process rights.

"The basic defect of the Adam Walsh Act, as applied, is that it imposes a mandatory limit on freedom of an accused without permitting an 'adversary hearing,'" Weinstein held in United States v. Polouizzi (Polizzi), 06-cr-22.

"Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans."

Weinstein's opinion marks yet another setback for the government in its prosecution of Polouizzi, who has admitted collecting thousands of images of child pornography. Polouizzi claims he downloaded the photos in the hope of saving the children or perhaps of finding evidence of the brutal rapes he endured as a child.

Since a jury rejected Polouizzi's insanity defense in October 2007 and convicted him of 23 counts of receiving and possessing child pornography, Weinstein has twice ordered the case to be retried. The first order was reversed by the 2nd U.S. Circuit Court of Appeals; the second order is on appeal.

After the government filed its most recent appeal, Polouizzi's counsel, Mitchell J. Dinnerstein, contested the conditions of his bail.

Wednesday, Judge Weinstein ordered the discontinuation of the electronic monitoring, finding that it violated both the Eighth Amendment prohibition against excessive bail and the Fifth Amendment right to procedural due process. The judge cited more than half a dozen decisions finding the Adam Walsh Act, which imposes electronic monitoring without discretion, unconstitutional in cases where flight or safety are not at issue.

"Electronic monitoring devices that inhibit straying beyond spatial home property limits, like those used to restrain pet dogs, are intrusive. Their requirement, when mandated and unnecessary, may constitute excessive bail in particular cases," Weinstein wrote.

"In the instant case there is no statistical foundation for a finding of risk. And the particularized individual clinical and experiential factors suggest no danger that this defendant requires a tracking electronic bracelet to protect the children or public. For the purposes of constitutional assessment, no reasonable risk assessment warrants application of the Adam Walsh Act to this defendant at this time."

Enacted in 2006, the act revised registration requirements for and other rules regarding sex offenders. The law was named after a 6-year-old boy who was abducted from a Florida mall in 1981 and later murdered. Adam's father, John Walsh, is the host of TV's long-running "America's Most Wanted."

Polouizzi's attorney, Dinnerstein, said he was pleased with the decision, but that he still intends to seek relief from the amount of the bail, which was set at $1 million.

Allen Lee Bode appeared on behalf of the Eastern District U.S. Attorney's Office. An office spokesman declined to comment. ..Source.. Mark Fass, New York Law Journal