Duggar child-porn conviction appealed to 8th Circuit panel

The federal judge hearing Josh Duggar’s child pornography case made unconstitutional rulings preventing Duggar from presenting a complete defense, and a new trial should be ordered, his attorney argued to a three-judge panel of appeals court judges Thursday.

Duggar, 34, of Springdale was convicted Dec. 9, 2021, of possessing child pornography by a federal court jury in Fayetteville. U.S. District Judge Timothy L. Brooks sentenced Duggar to 12½ years in federal prison May 25. Duggar also was ordered to serve 20 years of supervised release after his prison term and to pay a $10,000 fine. Brooks also assessed three special assessment fees totaling $40,100.

Prosecutors accused Duggar in early 2021 of using the internet to download and view child pornography, some of which depicts the sexual abuse of children younger than 12, according to court documents. They told jurors child pornography was repeatedly downloaded on the computer at Duggar’s used car lot May 14, 15 and 16 of 2019.

He was charged in federal court with two counts involving receiving and possessing child pornography. The jury found him guilty on both counts after more than six hours of deliberation over two days. Duggar was sentenced on the single count of receiving child pornography because possession of child pornography is considered a lesser included offense under federal law.

Duggar is serving his sentence at a federal prison in Texas.

Duggar’s attorney, Justin Gelfand, cited three issues on appeal:

■ “Whether the district court violated Duggar’s constitutional right to present a complete defense by precluding Duggar from calling and, if necessary, impeaching a critical witness at trial.”

■ “Whether the district court erred by denying Duggar’s motion to suppress statements after a federal agent physically stopped him from contacting his attorney and subsequently interrogated him outside the presence of his counsel.”

■ “Whether the district court erred by permitting the government’s expert to offer testimony on EXIF metadata and prohibiting Duggar’s expert from testifying to the unreliability of the methodology used by the government’s expert.”

EXIF metadata is a set of data attached to photo or video files, such as when and where a photo was taken and with what device. It stands for exchangeable image file format.

Brooks rejected similar arguments during and after Duggar’s trial.

Duggar’s attorney contended he wasn’t guilty and suggested a remote user may have downloaded the child porn. On Thursday, Gelfand argued Brooks improperly excluded potential evidence of an alternative perpetrator identified by the defense.

“That’s an error of law, and it’s a error of law of constitutional magnitude,” Gelfand argued.

Lawyers for the government countered there’s ample evidence the potential alternative perpetrator cited by the defense wasn’t even in Arkansas at the time. They further argued Duggar’s own text messages placed him at his car lot at the precise time child porn was being downloaded on a computer there.

Gelfand also contended federal agents stormed the car lot and physically took Duggar’s cell phone away, preventing Duggar from contacting his attorney on the day they served a search warrant at the car lot. Agents then improperly questioned him without his attorney present, Gelfand said. He argued a reasonable person in that situation would have believed they were in custody.

The government countered Duggar was repeatedly told he wasn’t under arrest and was free to leave at any time, which he eventually did. They also argued Duggar signed a rights form acknowledging he wasn’t in custody at the time he spoke to agents.

The 8th U.S. Circuit Court of Appeals judges will issue a written ruling at a later date.