The state’s high court currently is hearing arguments stemming from the conviction of Joshua Bertsch two years ago, when the then-Macalester College student plead guilty to 19 counts of child porn possession.
Police had discovered that Bertsch, 22, had been running an online exchange service for child porn from his dorm room. Bertsch’s computer reportedly held several thousand illegal pictures at the time of his arrest.
Now the Minnesota Supreme Court is trying to decide how to sentence Berstch, whether for multiple accounts of child porn based on the number of images found or on one single count for the act itself.
Bertsch's attorney Theodora Gaitas has begun arguments that, due to the number of pictures on his client’s computer, sentencing based on the number of photographs would land Bertsch in prison for an excessive duration.
“We're talking about an age where these images can be very easily downloaded, thousands at a time,” Gaitas said in his argument. “Treating the images of particular children as victims opens the door to very dramatic sentences, such as the sentence in this case where Mr. Bertsch is serving six-and-half years.”
However Justice Helen was not immediately convinced.
“The fact that it's easy to buy something doesn't make it less criminal,” she said.
Gaitas responded that his client did not actually create the pictures in question, an important distinction he said the court should not forget.
“The court must focus on what the actual conduct was in determining what is an appropriate sentence,” Gaitas said. “Is it really appropriate to permit a separate sentence for each of the offenses, merely by virtue of the fact that a different child is portrayed in each image?”
Assistant Ramsey County Attorney Jeanne Schleh has argued that it is.
“The mere existence of an image invades the privacy of that child,” she said. “It's an ongoing event, perpetuated every time it's passed on to a new possessor.”
The Minnesota Supreme Court is expected to rule on the case before the end of the current term.
