Sentencing on Hold in Internet Porn Case
Invalidated Law Cited in Catholic Brother's Plea
By Lola Smallwood
January 27, 2000
A Will County judge Wednesday delayed the sentencing of a member of a Roman Catholic religious order after defense attorneys argued whether their client's conviction should stand because he was indicted under the state's now-defunct Safe Neighborhoods Act.
Under the act, Robert Brouillette--convicted of disseminating child pornography via the Internet--would have faced a mandatory sentence of 4 to 15 years without the possibility of parole.
But because the Safe Neighborhoods Act was invalidated by the Illinois Supreme Court on Dec. 2, his defense attorney, Mark Solock, questioned whether the indictment remains legal.
Brouillette, a member of the Christian Brothers religious order, was found guilty Dec. 4 of 10 counts of passing child pornography via a computer. The Safe Neighborhoods Act was the only statute in Illinois that specifically classified "child pornography depiction by computer" as a crime.
Will County Assistant State's Atty. John McCabe asked the court to change the language of the indictment to reflect child pornography statutes that were in place before the court's decision.
He argued that the changes he proposed were primarily procedural and would not change the nature of Brouillette's conviction or the crimes he was found guilty of committing.
However, Brouillette's Chicago attorneys, Solock and Patrick Reardon, strongly disagreed.
They contend Brouillette should either be discharged or have his conviction voided because it came after the law was repealed.
Before the Safe Neighborhoods Act, which was approved by the Illinois legislature in 1995, child pornography laws classified depictions by "photographs or other similar visual reproduction" as a crime. The words computer, computer disk or Internet were not mentioned in the old laws.
After listening to arguments from both sides, Will County Circuit Judge Amy Bertani-Tomczak said she would rule on the issue on March 13.
"This requires a little bit more work," Bertani-Tomczak said.
The legal dilemma Wednesday reflects how the Will County state's attorney's office has been affected by the state Supreme Court ruling, which found the Safe Neighborhoods Act unconstitutional. It's also a reflection of how prosecutors are being affected by the politically charged debate in Springfield over how to draft a new version of the act.
"All of the attorneys in the office are aware of the court's decision and are reviewing their cases to make sure their cases are not affected by (the invalidation of the Safe Neighborhoods Act)," said First Assistant Will County State's Atty. Doug DeBoer.
DeBoer added that his office already has received a handful of legal challenges from people convicted of unlawful use of a weapon, which under the Safe Neighborhoods Act was a felony. Since the law's repeal, such crimes currently are classified as a misdemeanor.
"Those are the only types of cases that we've seen up until now," DeBoer said. "So what happened today is a new twist."
In the Brouillette case, the murky debate could mean a convicted child pornographer will get a new trial if the judge sides with his attorneys, McCabe acknowledged.
"But whether it's a photo or a visual reproduction off of a computer, the language doesn't change the conduct or the penalties associated with that conduct," McCabe added.
Brouillette was arrested in August 1998 on charges of exchanging child pornography with a New Hampshire police officer posing as a trader in an on-line chat room. Those images were among the roughly 400 images on computer disks seized by police at the Joliet home Brouillette shares with three other men who belong to his religious order.
Brouillette is also facing charges of indecent solicitation of a child. That case is to be heard in the Maywood branch of Cook County Circuit Court.
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