Pumpkin Man Tests Kiddie Porn Ruling

May 17, 2002 -- A former prep school teacher jailed in New Hampshire on sex abuse and child pornography charges hopes a recent U.S. Supreme Court ruling will get him a new trial.

David Cobb, also known as "Pumpkin Man," was convicted in 1996 on charges he tried to molest a 12-year-old boy while carrying a knapsack full of child pornography. He also carried with him children's underwear, a pumpkin mask, and a pay scale for "helping pumpkin" perform various sexual acts.

Cobb's lawyer says he did not technically possess kiddie porn, though. Instead, Cobb created pornographic "collages," such as children's faces from clothing catalogues pasted onto photos from adult magazines, which his lawyer says should be protected by the First Amendment.

Now, Cobb's lawyer says the Supreme Court backs him up.

In Ashcroft vs. Free Speech Coalition last month, the court struck down provisions of a 1996 federal law that made it a crime to create, distribute or possess "virtual" child pornography that used computer images or young adults rather than actual children.

In light of the Supreme Court ruling, prosecutors across the country are concerned that it will be more difficult to nab increasingly computer-savvy child pornographers, and that a flood of old cases will be revisited.

So far, other cases have sprung up in Illinois and Oklahoma. A Round Lake Beach, Ill., man asked the state to dismiss charges of child pornography against him unless prosecutors can prove actual children are shown in the images taken from his computer.

Federal prosecutors in Tulsa reduced charges against two child pornography defendants to obscenity in light of the Supreme Court decision.

"It is a concern to prosecutors across America that that decision will be used to reopen hundreds of cases involving convictions of child pornographers," said James Backstrom, a Minnesota prosecutor who co-chairs the National District Attorneys Association's juvenile justice center. "We have grave concerns about the status of the law in this area."

U.S. Justice Department officials have also expressed concern about the impact of the ruling on pending and future child pornography cases, and have already sent a legislative package to Capitol Hill in the hopes of fine-tuning the 1996 law.

Congress could act on the bill in upcoming weeks.

Art or Child Porn?

Cobb's interpretation of the high court ruling — and his request for a new trial — is exactly what prosecutors fear.

His lawyer, Paul Haley, argues that if the First Amendment protects computer graphics, it should also protect cut-and-paste images such a Cobb's collages. "We're saying that's akin to virtual porn in that it's protected by the First Amendment," he said.

Another provision of the federal statute, which is still in effect, could more directly apply to Cobb's case — it bans using a computer to "morph" images of children, such as grafting a child's school picture onto a naked body.

The court said such images could fall under virtual child pornography, but did not address the provision because it was not challenged in the case at hand.

In his request for a new trial, Cobb is arguing that his trial lawyers never raised the First Amendment issue, and should have.

"This guy is an artist," said Haley, who was not one of Cobb's original lawyers. Cobb, who is eligible for parole in December 2003, spends much of his time in prison drawing, and has even had offers from a national magazine to purchase some of his work, Haley said.

Bearing the Burden of Proof

Lincoln Soldati, the former district attorney who prosecuted Cobb, said it was unclear whether the so-called Pumpkin Man could successfully use the high court ruling to his advantage. It is unclear if the ruling could apply retroactively since First Amendment concerns were not raised at trial.

The high court ruling is more likely to affect future cases, Soldati said. Now a defense lawyer in Portsmouth, N.H., Soldati said he is planning on raising the Supreme Court ruling in one of his own pending cases involving a man arrested for computer-generated pornographic images.

Indeed, prosecutors say they expect more defendants to use the ruling in court, especially as technology becomes more advanced.

Even more so than in 1996 when the original federal law was passed, computer technology makes it relatively easy to produce images of children that are virtually indistinguishable from actual photographs.

Requiring the state to identify whether an image is a made-up graphic or a photograph is an unrealistic burden, prosecutors say.

"To require a state to identify children is impossible to meet," Backstrom said. "I have grave concerns that this law will jeopardize our ability to protect children in America."

Free speech advocates, though, say prosecutors are just making excuses. Federal prosecutors boasted a 97 percent conviction rate in child porn cases prior to the 1996 law, they say.

'The Drug of Pedophiles'

Further, they say, even if it is difficult to identify whether an image depicts a child or a graphic, the distinction is too important to ignore, and prosecutors should bear the burden to make it.

"If it's not a real child, it's not child pornography no matter how real it is," said H. Louis Sirkin, the lawyer who represented the Free Speech Coalition. "What appears to be a murder in a movie, if someone is not really murdered, there wasn't a murder."

Bruce Taylor of the National Law Center for Children and Families doesn't buy the murder-in-a-movie analogy. Child pornography incites pedophiles to abuse children, he said.

"There is no drug on the market to make murderers want to be murderers," he said. "Child pornography is the drug of pedophiles. They have to have it, they collect it, they have a different look at it than normal people do."

Even so, Sirkin says, our laws don't punish people because what they might do, he said. "If they misuse it and it whets the appetite and they abuse a child, then you punish them," he said.