By Craig Malisow
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"I wasn't looking to be junior G-man," Conners told Carlson's lawyers in the deposition. "I was fearful that I was going to be in the same boat with your client, and I had these kiddie porn pictures in my computer."
Just what Conners might have had on his computer -- an electronic record of who else he was chatting with, what he was asking for, what kind of pictures he downloaded -- is apparently never going to be known.
Androphy and Berg subpoenaed Conners's hard drive. Conners called the American Civil Liberties Union, he called his lawyer, he even called Judge Hughes -- but he was ordered to turn it over to the court.
He had a 15-year-old friend take out the hard drive, he testified. But then -- darn the luck -- the hard drive got damaged.
"Between the two of you," he testified, "the defense, with whatever funds you have available, and the government, with unlimited funds, neither one of you could send a computer expert to my house and retrieve the hard drive in a professional manner.So there I go, jackassing my way down Tenth Street with a [computer] tower in one hand and a hard drive in the other. And the tower became heavy. And I went to switch hands, and I dropped the hard drive. I don't know what is so unbelievable about that."
All but 15 percent of the data on the hard drive was lost. Conners had kept another computer in the back room, one he said was used mostly by the kids who visited. But he said he threw it out -- even after receiving the subpoena -- because its modem broke and nothing on its hard drive was relevant to the case.
"And this is the guy who's supposed to be "credible and reliable,' " says Androphy.
Assistant U.S. Attorney Schultz says of Conners: "There's nothing wrong with the guy. He moves in a different world, that's for sure, but I don't find anything he said in the deposition to be particularly troubling."
There's another twist to the mystery of Conners's computer, though. Androphy says he has been told by prosecutors that Smith, the Customs agent, is now saying she downloaded no information from Conners's computer. Conners, of course, said Smith spent an hour or two each week doing just that.
"Either the government's lying or Conners is lying," Androphy says.
If Conners was working for the government as a "confidential informant," then the government would have to tell a judge Conners was credible and reliable before the judge could issue a search warrant.
The warrant used to seize Carlson's computer did not include such language. The government says Conners was not acting as an informant, but as a "walk-in witness" whose credibility need not be established. The government eventually paid Conners $200 for his trouble, but that was after the search warrant against Carlson was issued.
Prosecutors may have trouble winning their argument, however, if an August 2 hearing before Judge Hughes is any indication.
Hughes is perhaps the toughest federal judge in Houston when it comes to holding the feds' feet to the fire in prosecutions, and he indicated he was having trouble accepting Conners as an innocent bystander.
"Well, as Your Honor knows," Schultz argued, "the reliability of a witness to a crime is not required in the affidavit [supporting the search warrant].The witness to a crime is always deemed reliable and that is what Mr. Conners was in this case."
"No, he wasn't," Hughes said. "He was a hired assistant to the government.[H]e is not somebody who happened to be walking home from work one day and saw somebody steal a car."
"He didn't come to the government as a witness," Androphy says. "He came in to try to stop himself from getting into trouble."
Hughes has yet to rule on the defense motion to throw out the search warrant. If he decides that the computer photos cannot be entered into evidence, the case likely will be dropped. If he allows them in, Androphy and Berg will argue that Carlson was doing legitimate research in the chat rooms.
"At no time did Pastor Carlson deal in child pornography out of any prurient interest or for personal satisfaction," the lawyers argue in court documents. "To the extent that Pastor Carlson endeavored to explore the Internet, he did so as part of his duty as a minister and in connection with his dissertation. The church has a deep, abiding interest in knowing what kind of information is available to children, including (and perhaps particularly) the unsavory material sometimes found on the Internet."
It's a First Amendment argument: The government, they claim, is trying to punish Carlson for "engaging in activity undertaken -- literally -- as part of his assignment, both as a minister and as a doctoral candidate at a religious institution."
Case law also allows scholars to possess such material if they are performing legitimate research, Androphy says, and he feels confident that he could convince a jury of that.
But what he, Carlson and the congregation want most fervently is for all this to be over.