‘No merit,’ says federal judge in denying Duggar’s motion for a new trial

FAYETTEVILLE, Ark. (KNWA/KFTA) — One day before Josh Duggar will appear in court for sentencing on his child pornography conviction, Judge Timothy L. Brooks issued a ruling on the defense’s request for a judgment of acquittal or a new trial.

In a 29-page ruling handed down in the Western District of Arkansas Federal Court in Fayetteville, Duggar’s request for an acquittal or a new trial was denied. The memorandum opinion and order began by recounting the charges against Duggar and the result of his trial—a unanimous guilty verdict in December, 2021.

The court notes that immediately following the verdict, the defense made two oral motions for acquittal under the Federal Rule of Criminal Procedure 29(a), both of which were denied from the bench. The defense then filed a similar motion under rule 29(c), arguing that “there was no evidence of mens rea from which the jury could base its guilty verdict.”

The defense filing requested either an acquittal on those grounds, or alternatively, a new trial due to the government’s “alleged failure to timely disclose certain evidence and the Court’s ruling on witness testimony.”

The document continued with the court explaining the legal standards that would be required to rule in the defense’s favor. One key point is that “when reviewing the sufficiency of evidence to support a conviction, the Court must resolve evidentiary conflicts in the Government’s favor and accept all reasonable inferences from the evidence that support the verdict.”

“A verdict will only be overturned if no reasonable jury could have found the defendant guilty beyond a reasonable doubt,” it adds. Further, the ruling notes that “the district court will only set aside the verdict if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.”

The previous defense filing stated that the court should enter a judgment of acquittal because “the jury was not presented evidence sufficient to show he actually viewed any child pornography.” Today’s ruling stated that this argument “lacks merit.”

“There is ample evidence he viewed the images of child pornography that had been downloaded to his business computer,” the judge states. He goes on to cite the testimony of the prosecution’s first witness, the Little Rock undercover police officer that first connected to Duggar via peer-to-peer file sharing software.

He then went on to summarize the testimony of the government’s forensics expert, James Fottrell of the Department of Justice, who explained that Duggar had partitioned the hard drive into two sections. Fottrell detailed the explicit nature of the illegal files and confirmed that images and videos were viewed on the computer.

The ruling added that the defense’s own computer forensics expert agreed.

“Ms. Bush conceded during cross-examination that the images were unzipped, placed in a folder on the desktop, and then ‘opened in image viewer all at the exact same time and second,'” the ruling says.

Sketch of Michele Bush, a digital forensics expert called to the stand by Josh Duggar’s defense for his child porn trial.

Judge Brooks then called a specific piece of evidence submitted by the prosecution the “coup de grace.” The document in question was a timeline summarizing “50 or 60 exhibits of forensic evidence recovered from Mr. Duggar’s HP desktop, iPhone 11, iPhone 8, and Macbook.”

“The evidence summarized in Exhibit 85 places Mr. Duggar at the car lot on May 13, 2019, during the local installation of the Linux partition and operating system, and during May 14-16, 2019, at the times child pornography was downloaded to the HP desktop,” he adds.

Based on the Court’s discussion of the trial evidence above, there is no merit to Mr. Duggar’s argument in favor of acquittal. There was significant evidence presented at trial to convince a reasonable jury that Mr. Duggar was physically present during the offense conduct and that he had the mens rea to commit these crimes. Accordingly, his request for relief under rule 29 is DENIED.”

Judge Timothy L. Brooks in a May 24 ruling denying Duggar’s request for an acquittal

The next section specifically addressed the request for a new trial. First, the ruling discussed emails sent by Caleb Williams, someone the defense mentioned by name during opening arguments as a potential suspect.

“The defense’s promise of an alternative perpetrator came to nothing, as the evidence at trial showed that Mr. Duggar—and only Mr. Duggar—was physically present at the car lot when child pornography was being downloaded,” the document notes.

The judge summarizes Williams’ emails in-depth, observing that “Mr. Duggar does not explain or quantify the nature of any prejudice associated with the five or six day delay in the Government’s disclosure of this email,” adding that, “More to the point, this information was not substantively new to the defense. Mr. Duggar had identified Mr. Williams as a potential witness and later subpoenaed him to testify at trial.”

Sketch of inside the federal courtroom for Josh Duggar’s child porn trial. | Artist: John Kushmaul

Continuing, the judge stated that the emails in question did not contain anything “exculpatory,” as the defense claimed in their motion.

“It does not contain any information that would suggest Mr. Williams was physically present at the car lot when child pornography was downloaded, and the defense was unable to point the jury to any forensic evidence of remote access on the Linux side of the computer,” he added. The judge also noted that Williams was in the state of Illinois at the time the illegal downloads occurred.

Another objection the defense made in their filing was that Duggar was “constitutionally deprived of the ability to call Caleb Williams as a necessary witness.” The judge noted that the defense was notified “at least two weeks prior to the trial” that Williams would need to “establish a non-speculative evidentiary foundation” to testify.

Judge Brooks then explains that a meeting in chambers during the trial had addressed the situation and that he had reiterated his ruling that Duggar was free to suggest that someone else might have committed the crimes, but that “the evidence needed to meet a certain minimum threshold of reliability and could not be tantamount to wild finger-pointing.”

In that meeting, the prosecution argued that the defense only wanted to call Williams to the stand because of his “recent sex offense conviction,” which could “leave the false impression that he might be a viable alternative perpetrator.” The ruling then includes a portion of the transcript from the meeting in chambers, concluding with the judge telling the defense that “under no circumstances are you to get into any prior sex offense history that he has without approaching the bench.”

The government explained that if Williams were called to testify, they would submit multiple pieces of evidence confirming that he was out of state during the entire time the illegal downloads were made. The Court then “expressly permitted” Duggar’s counsel to call Williams, with the provision that he had “knowledge or recollection of being present on the car lot on or about May 13 through May 16.”

The court added that this conference was at least the third time it had addressed the issue. Williams was not called as a witness during the trial.

Another issue the defense cited as grounds for a new trial was the government’s “failure to disclose certain demonstrative exhibits” presented by Fottrell. The exhibits in question were printed screenshots of Fottrell’s work on virtualization software.

“The Court observed that the screenshots were more akin to demonstrative aids,” the ruling said. “The Court finds the screenshots in question were not material to the defense.”

Lastly, the defense objected to Fottrell’s testimony about geolocation data recovered from Duggar’s phone. The judge noted that the prosecution made it clear that Fottrell would be using that information, and that the defense’s own expert had equal access to it.

“Accordingly, the Court finds no merit in Mr. Duggar’s request for a new trial based on Mr. Fottrell’s testimony,” the ruling concludes.

Duggar was found guilty on two child pornography charges in December 2021. He remains in custody at the Washington County jail while awaiting his May 25 sentencing.