Defense lawyer Harvey Steinberg wants a copy of the alleged child pornography his client is accused of possessing and distributing. Arapahoe County prosecutors say Steinberg can look at it, but he can't have a copy, because it's illegal for anyone -- including a defense lawyer -- to possess child porn.
It will be up to the Colorado Supreme Court to decide which side wins.
The issue arose last week in connection with the case of Joseph J. Verbrugge. It's been a controversial decade for Verbrugge, a former anesthesiologist. On July 8, 1993, eight-year-old Richard Leonard, undergoing a routine ear operation, died of a heart attack during surgery. At the time of the boy's death, his temperature had reached a fatal 107 degrees. The anesthesiologist responsible for monitoring his vital signs was Verbrugge.
Verbrugge was charged in Denver District Court with two felonies -- reckless manslaughter and criminally negligent homicide -- and in 1996 became the first Colorado doctor to be criminally prosecuted for the death of a patient. At trial, Denver prosecutor Diane Balkin contended that Verbrugge had fallen asleep for twenty to thirty minutes during the operation and failed to notice the boy's soaring heart rate and temperature. She presented evidence that the doctor had repeatedly been warned by his supervisors about sleeping during operations. After the child was pronounced dead, a nurse testified, Verbrugge turned to her and said, "Well, I guess that's the end of my career."
But Steinberg, Verbrugge's lawyer, contended that Richard Leonard had died from a rare complication of pediatric surgery, in which the patient's body temperature rises quickly. Although Verbrugge admitted he had not used a temperature monitor and did not notice the boy's dangerous vital signs until a surgeon pointed them out, the defense contended that while Verbrugge had made errors, he had committed no crime.
Verbrugge's first trial ended with a conviction of criminal medical negligence, a "lesser included offense" that the jurors had been told they could consider. The jurors deadlocked on the felonies. Denver prosecutors tried Verbrugge again for the felonies a year later, but in December 1997 a second jury acquitted him of both counts.
"I would like to find some way or something to do in some form to, I guess you would call it, memorialize the tragedy," Verbrugge said at the time. "The rest of my life will have to be dedicated to this." Denver District Judge Richard Spriggs, citing what he said was Verbrugge's "genuine contrition," sentenced the doctor to one year of probation and 200 hours of community service.
Because of the 1996 conviction, Verbrugge's license to practice medicine was revoked in Colorado and California.
In June 1999, however, the Colorado Court of Appeals overturned the conviction. The judges ruled that prosecutors had failed to bring the criminal medical negligence charge within eighteen months of Leonard's death, the legal limit for misdemeanor counts.
"It's not something he's gleeful about," Steinberg told the press. "He doesn't for a moment forget that the Leonards lost a son."
In September 1999, Verbrugge applied for reinstatement of his medical license in California. "The medical license is not just a way to make a living," he said. "It's a way to assist people and help them. If I got a medical license, I doubt I could make a livelihood with it." He said he would not seek reinstatement in Colorado.
In fact, Verbrugge was working in real estate in December 2000, when the Arapahoe County Sheriff's Office launched a multi-state investigation after a man living in Verbrugge's home told a deputy that the former anesthesiologist possessed child pornography. In March, Arapahoe County investigators searched the South Locust Way home, seizing 300 photographs and three computers. Verbrugge, now 61, wasn't arrested until mid-June. At the time of his arrest, he was held on $1 million bond. A few days later, the bond was reduced to $200,000, but he remained in jail.
On June 22, prosecutors filed 200 counts of sexual exploitation of a child, all but one of them felony counts punishable by as much as six years in prison. Verbrugge didn't get out of jail until July 3, when Arapahoe County District Judge Alex Bencze reduced the bond to $50,000.
Prosecutors have described the evidence as a collection of pornographic photographs. But details have been few, because at the request of the Arapahoe County District Attorney's Office, the judge sealed the arrest and search warrants, and issued a gag order prohibiting the attorneys from talking about the case.
At a hearing last week, however, Steinberg told the judge that there was only "one alleged victim": Verbrugge's son, who is now in his late twenties. Steinberg said the son, who is now an adult, wanted contact with his father. In child-pornography cases, the alleged perpetrator is usually prohibited from such contact, but the judge granted Steinberg's request.
The court appearance, for which Verbrugge sat in the gallery, was supposed to be a preliminary hearing in which the prosecutors would outline their case, showing enough evidence to justify the charges and remand the case for trial. Instead, the judge set an October date when the attorneys will reconvene after the Colorado Supreme Court has made a decision as to whether Steinberg can have copies of the photographs.
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Steinberg says he cannot prepare his defense without copies of the seized photographs -- the evidence prosecutors intend to use against his client. But the prosecution refused to give him copies, arguing that the photographs are contraband and illegal to possess. Instead, the prosecutors said, Steinberg would have to view the photographs at the sheriff's office.
Steinberg complained to Judge Bencze, who told the prosecutors to hand over the photographs. Instead, the prosecutors asked the Colorado Supreme Court to decide the issue.
Although the lawyers in the case aren't talking, Dennis Hall, a chief deputy district attorney for Jefferson County, says the issue revolves around how a defense lawyer is allowed to prepare during a case involving contraband. Whether the contraband is drugs or a sawed-off shotgun or child pornography, "being a lawyer doesn't give you the right to possess it," he says.
After last week's hearing, Steinberg told Westword that all 200 counts essentially concern a single photograph. "I think I have a right to have the evidence in my office, where I can look at it when I need to," he said. "Not run down to the sheriff's office."