Devil's Advocate

A well-intentioned predator law perverts justice.

Ian Friedman
Cleveland attorney  Ian Friedman is becoming a favorite Fox News punching bag. - WALTER  NOVAK
Cleveland attorney Ian Friedman is becoming a favorite Fox News punching bag.
"Our next guest makes a living of protecting the rights of sex offenders," Sean Hannity announces on Fox News.

As introductions go, it's just short of a punch to the face, but Hannity isn't done yet.

"If you are advocating to get these people free, do you want them to move in next door to you?" he asks.

It's a reaction Ian Friedman has come to expect since he started speaking up for the rights of accused sex offenders.

The Cleveland lawyer tries to answer -- "presumed innocent until a judge or jury . . ." -- but he's interrupted by Alan Colmes, the show's meek liberal cohost. His job is to balance Hannity's fire-breathing conservatism. But not on this episode. Instead, he describes a case in which a guy enticed a 12-year-old to have oral sex by plying her with drugs.

"And you're defending someone who's doing this," Colmes says. "How do you feel good about that?"

The answer is complicated -- too complicated for the shoutfest of cable. Friedman spends the remainder of the segment trying in vain to defend the principle of a fair trial as Hannity snorts in disgust about the perps on Dateline's "To Catch a Predator" series.

The next day at his West Sixth Street office, Friedman marvels at the hysteria surrounding sex offenders nowadays. In his 10 years as a defense lawyer, he has defended people accused of all manner of crimes, from petty drug deals to multimillion-dollar investment fraud. But he never encountered so much scorn as when he became the unofficial spokesman for accused perverts.

"If my practice was limited to defending murderers, we wouldn't even be having this conversation," he says.

But Friedman hasn't shrunk from the spotlight. Instead, he has taken his crusade to the cable world -- a few weeks earlier, he appeared on The O'Reilly Factor -- because he feels that the right to a fair trial is threatened by a piece of legislation pushed through Congress last July by the unlikely trinity of America's Most Wanted host John Walsh, President Bush, and disgraced Florida Congressman Mark Foley.

It was called the Adam Walsh Act and was named for the TV host's murdered son, who was abducted from a Florida mall 25 years ago. With its promise to create a national registry for sex offenders, the bill passed in a landslide. But like most laws enacted to appease the tough-on-crime voting bloc, it's having unintended consequences.

"This was a very well-meaning law, but it's un-American," says Jack King of the National Association of Criminal Defense Lawyers.

At issue is a provision governing the handling of child porn evidence. Prior to July, a defendant could copy the files for computer experts to conduct their own review. Now, he must pay to send experts to government facilities to perform the tests.

It may seem perfectly reasonable on paper, but for most defendants -- already crushed under the weight of legal fees -- it had the devastating side effect of quadrupling their legal costs, says Mark Vassel, a computer defense consultant at Midwest Data Group in Berea.

"Most defendants can't afford to pay for the examination, the travel, and to house us at the location where these hard drives are stored," he says.

Yet this is precisely the kind of analysis that he needs in order to prove the innocence of the wrongly accused.

"We've had cases where child pornography has been downloaded on a computer, and the guy was at work," Vassel says. "So we're comparing the date and time stamps of these files. We see that in a lot of divorce cases."

The new law is being challenged in the case of David Knellinger. He was a middle-aged financial analyst living in Richmond, Virginia, when federal agents raided his home and seized his hard drive. A federal indictment claims it contained 32 explicit movies of underage girls.

Initially, prosecutors agreed to provide defense lawyer Friedman with copies of the files. But with the passage of the Walsh Act, their posture changed. Computer experts would have to do their work not only on-site, but also under the watchful eye of law enforcement.

"I'm trying to discuss the case with the defense attorney or client, so it really hampers attorney-client privilege," Vassel says.

U.S. District Judge Robert Payne, who's presiding over the case, harshly criticized the new restrictions during a recent hearing. "Congress gave no apparent thought to this," he said.

But whether the Walsh Act violates the right to a fair trial may ultimately turn on how much of an additional burden it imposes, says Jonathan Entin, a constitutional law professor at Case Western Reserve.

"This tilts the playing field, there's no question about that. But tilting the playing field is not necessarily unconstitutional. The question is, How much does it tilt the playing field?"

For Friedman, it's less about whether Knellinger is guilty or innocent, and more about ensuring that people are innocent until proven guilty -- regardless of how heinous the accusations.

"I find it very problematic that our country is seeming to accept the fact that certain offenses don't deserve a fair trial," he says. "The truth of it is, I feel it's just as disgusting as the next person, but I can't let that deter me from doing my job."

Ironically, Congressman Foley, the former co-chair of the House Caucus on Missing and Exploited Children, and one of the chief architects of the Walsh Act, may have a stake in the Knellinger case's outcome.

On July 28, Foley attended the Rose Garden ceremony in which President Bush, standing with Adam Walsh's parents, signed the act into law. Two months later, Foley resigned after news broke that he had had sexually explicit online chats with teenage House pages. Now, Foley is at the center of a criminal investigation. And he could find himself accused of a crime where the Walsh Act might come to hinder his own defense.

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