November 7, 2014 at 4:23 p.m.
Lawyer moves to dismiss charges against Chagnon
Lawyer moves to dismiss charges against Chagnon
At issue: Whether Chagnon's conduct was illegal.
Chagnon, formerly of Rhinelander, is alleged to have collected the girls' photos while an inmate at the Oshkosh Correctional Institution. Police and the state Department of Corrections have said Chagnon removed the photos from The Lakeland Times, to which he subscribed while in prison, and other publications. (Chagnon has since canceled his subscription to the newspaper.)
Chagnon was charged with 23 felony counts of violating a state law that prosecutors say prohibits registered sex offenders from storing photographs of a minor without the written consent of the minor's parent, legal custodian or guardian. Chagnon also faces four misdemeanor counts of violating prison policies.
The criminal complaint says Chagnon pasted the photos into a booklet, which is smaller than a passport, and added sexually explicit commentary, names and ages of the girls, and in some instances, the names of their parents.
On Thursday, Chagnon was in Winnebago County Circuit Court for what was supposed to be a preliminary hearing, but that did not happen. Instead, Raymond Edelstein, a lawyer appointed to represent Chagnon by the state public defender's office, made an oral motion to dismiss the charges.
For technical reasons, a court commissioner presiding over the hearing could not rule on the motion, so the case was transferred to a circuit judge. Edelstein was also told to make the motion in writing, which he did on Friday.
In an interview, Edelstein said the motion to dismiss challenges the basis for the felony charges.
The law from which the felony charges derive makes it illegal for a sex offender to intentionally capture a representation of a minor without the written consent of that minor's parent or legal guardian. The term "capture a representation" is defined by statute and means "takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image." Law enforcement officials have said the last part of that definition applies, because Chagnon stored the photos.
But Edelstein said that interpretation is wrong. He argues, in essence, that the statute applies only when a sex offender actually takes a photograph or video, or digitally stores an image. The hard-copy images Chagnon compiled are not "data," Edelstein said, because they were not digitized.
"If I clip a picture out of your newspaper, and I have it in my pocket, I'm not storing that in any medium which is data representing an image," Edelstein told a reporter. "If I scan that image, then I think I run afoul of the statute."
That distinction is important, Edelstein argues, because digital images are much easier to share: "It's obviously a big problem with images floating around the Internet," he said. "Once it's out there, it's almost impossible to stop it."
Edelstein continued: "It doesn't matter how disturbing, disgusting, revolting someone's behavior might be. Unless it's made criminal by the Legislature, a district attorney can't just create a crime because they don't like what someone has done."
Scott Ceman, Winnebago County's deputy district attorney, declined to comment for this story until he could read Edelstein's motion to dismiss. But Ceman did say he was surprised Edelstein made the motion without advance notice, and said it is not common for defendants to seek to dismiss charges before preliminary hearings.
Authorities from Oneida County and parents of the some of the girls traveled to Oshkosh on Thursday for Chagnon's court appearance.
A hearing on the motion to dismiss is scheduled for Nov. 17, according to online court records.
If convicted on all counts, Chagnon could be sentenced to a maximum of nearly 181 years in prison and a $232,000 fine, though he could cut a plea deal with a shorter prison term. More charges are also possible.
Jonathan Anderson may be reached at [email protected]
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