(Final installment of a five-part series. In the previous installment, police charge Larry Benedict with trading child pornography, but vital electronic evidence is altered or missing.)
CANANDAIGUA, New York -- It's been nearly seven years since Larry Benedict was accused of swapping child porn, but his reluctant trek through the criminal justice system is far from over.
The 44-year-old Xerox engineer's first brush with the law came when a squad of federal and state police ransacked his home in February 1995, looking for illicit photographs. After three or four hours, they carted off over two-dozen postal bins filled with floppy disks, computer equipment and even his stereo system.
They didn't find any physical contraband, and a U.S. Postal Service specialist perused Benedict's computer and did not immediately report any illicit files. But prosecutors said that two envelopes, which Benedict sent to an acquaintance in San Diego, contained a floppy disk and a tape backup overflowing with child porn images.
Benedict's attorneys claim that the U.S. Attorney's office refused to turn over the magnetic media; the government insists it was always available. For whatever reason, the defense never managed until a few months ago to send the electronic evidence to an independent forensics expert to be examined.
On Jan. 11, 1996, Benedict's attorney at the time, Lawrence Andolina, starting talking about a deal. He sent the U.S. Attorney's office a letter that said: "Would you be so kind as to forward me a proposed plea agreement.... I believe it is in everyone's best interest if we begin the process of negotiating a plea agreement."
The government insisted on a plea bargain that included prison time. After the U.S. Attorney's office sent back its conditions, Benedict objected and Andolina replied in another letter to the feds: "My client is desirous of having another attorney look at the file to determine whether I have advised him properly."
That kicked off an exhaustive series of back-and-forth negotiations. An example: The assistant U.S. Attorney wrote on May 30, 1996, to Andolina saying, "Please advise me if your client still wishes to finalize the proposed plea agreement or if I should prepare to present the evidence to the grand jury."
Eventually negotiations stalled, and a new prosecutor, Martin Littlefield, took over the case. Not long afterwards, on Aug. 18, 1998, a federal grand jury indicted Benedict on two counts of sending child porn through the mail in violation of 18 U.S.C. 2252.
For the next two years or so, both sides sparred over typical pre-trial motions. That was interrupted briefly in Dec. 1999, when Littlefield said in a letter that another Postal Service specialist, Jerry Patterson, discovered "a directory which had not been deleted or erased which contained eleven child pornography files."
The defense didn't get a chance to review the electronic evidence until U.S. District Judge David Larimer, after hearing oral arguments on the topic, signed an order on Dec. 29, 2000, saying the government must turn over "documentary copies of the computer media for all of the government exhibits, which the government intends to introduce at trial."
It didn't quite work. Benedict's attorney wrote an eight-page letter in April 2001 to the judge saying they received directory listings that "include the names of files necessary to run a Windows-based computer, among which are several of potential forensic value. However, we have only the names; over 90 percent of the files themselves are absent from the materials delivered to our expert."
Pleas for help
During this time, Benedict was firing off increasingly desperate letters to just about anyone he could think of in Washington, D.C., or elsewhere who might be able to help.
Benedict wrote a letter to Attorney General John Ashcroft on May 21 that cried: "HELP ME PLEASE! ... The strategy of the prosecutor is to keep the evidence from us as long as he can so that we will not have enough time to analyze the evidence and will not be able to respond to any of the government's false accusations during trial."
He contacted members of Congress, nonprofit groups, the deputy attorney general, former Attorney General Ramsey Clark and even Sen. Hillary Clinton (D-New York).
A running correspondence with the Justice Department's Office of Professional Responsibility proved futile when it finally informed Benedict that it would not interfere with matters "pending before the court."
Wired News learned about Benedict's case from one of those letters, forwarded by Crime Victims for a Just Society.
Personal life
By mid-2001, Benedict says, his life had been consumed with the case.
His wife Suzanna, who had been his fiancée at the time of the February 1995 raid, finally had enough. Even though Suzanna married him and they had a son together, she decided to call it quits and move in with her ex-husband in Puerto Rico.
"She just said she couldn't take it anymore," Benedict says. "She said when I'm home I'm always focused on my case."
In a letter to Judge Larimer dated Oct. 4, 2001, Suzanna says: "I was married to Larry in 1995 and we lived together for five years before we separated. During that time I never saw any evidence that Larry was a person involved in child pornography in any way."
Benedict is separated from his wife and sends her $850 a month in child support. His son, who is 5, visits his father and grandparents about once every six weeks.
Around the same time, Benedict's mother in New Jersey became severely ill. She suffers from Parkinson's Lewy Body disease, and had fallen and broke her hip.
That happened in early June 2001, just days before the trial was supposed to begin. At the same time, on June 5, the prosecutor offered Benedict a revised plea bargain. Littlefield's letter promised a probable 37-month prison sentence and said "this plea offer must be accepted by close of business today."
Benedict accepted the plea. It said he confessed to shipping floppy disks containing "depictions of sexual intercourse involving children or lascivious depictions of the genital and pubic area of children."
Judge Larimer accepted the plea and set a sentencing date for fall 2001, after the court probation office completed the standard pre-sentencing report.
The plea bargain
The U.S. Attorney's office in Buffalo, New York, immediately sent out a press release. A local newspaper published a short article based on the government's statement.
Then everything you might expect happened at once: Everyone at Benedict's workplace at Xerox saw the story and was horrified. His manager told him to go home, and Xerox's lawyers stepped in and told the company to fire him.
Since that day, Benedict has been trying to do what criminal defense lawyers predict will be terribly difficult. He's been trying to take back the plea, saying he wants to be vindicated through a jury trial.
Benedict hired a new set of attorneys, John Swomley and Edmund Robinson, from Boston. They filed a motion on Nov. 12 asking to "withdraw the guilty plea."
One part of the defense argument is that Benedict only had one full day to consider the details of the plea. "The stress and the medication and the lack of contact with his family and lack of advice from other counsel clouded Mr. Benedict's judgment," the motion says.
They also point to an avalanche of new evidence uncovered since the time of Benedict's guilty plea.
John Carman, a former Secret Service agent turned private investigator, interviewed the man with whom Benedict allegedly traded child porn. The man, Mikel Bolander, candidly admitted trading illicit images with many people -- but said he never did with Benedict.
A computer forensics expert retained by the defense has unearthed striking inconsistencies in vital electronic evidence compiled by the government.
The government claims Benedict mailed Bolander a 3.5-inch floppy disk with two archived image files. The expert found no porn on the disk -- but did see "data somehow related to Novell NetWare," which neither Benedict nor Bolander had on their computers.
In a response filed Monday, prosecutor Littlefield denied any wrongdoing. He wrote "assuming ad arguendo that there was prosecutorial misconduct, its occurrence or not is irrelevant viz a viz the motion to withdraw a plea of guilty. None of the standards set out by the Second Circuit ... include prosecutorial misconduct as alleged in the instant case as one of the factors/criteria to be considered."
Mark Rasch, a former Justice Department prosecutor, says there's only about a 25 percent chance Benedict will be able to rescind his plea agreement.
The truth
Nobody but Benedict, Bolander and a handful of law enforcement agents likely will ever know who's telling the truth. Was Benedict in the habit of swapping child porn -- or was he a hapless computer game geek snared by overzealous feds?
If Benedict was framed, it would have required the participation of the San Diego police and a federal postal inspector at the very least, and perhaps the complicity of the New York state police.
Benedict's lawyers refuse to say what theory they're going to offer to Judge Larimer during a hearing scheduled for the Rochester federal courthouse at 11 a.m. on Jan. 3, 2002. If convicted after a jury trial, Benedict faces up to 10 years in prison.
"We don't know how those things got there," says defense lawyer Robinson. "It's not our burden to make a perfect case. Under the American system, it's the prosecution's burden to prove beyond a reasonable doubt to a jury."
Robinson said: "They've destroyed an awful lot of evidence. We're doing the best we can to analyze the scientific and computer materials.... We'll continue this analysis right up until the time of the hearing on Jan 3."
Harvey Silverglate, the former chairman of the ACLU's Massachusetts affiliate who's now a prominent criminal defense attorney, is nowhere near as reticent.
"The people involved in the investigation of child porn are complete and utter fanatics," Silverglate says. "This isn't particularly unusual. When people have been involved in a very narrow area of investigation -- child porn, drugs, national security -- they do become fanatical."
"They think it's the worst thing in the world," says Silverglate, whose offices are in the same building as Benedict's lawyers and who is familiar with the case. "They see it everywhere. They begin to cut corners. They find perverts in the streets. It's quite remarkable."
Silverglate says it's entirely possible that evidence was planted in Benedict's computer: "Tests can be fudged, exculpatory evidence can be ditched, testimony that is equivocal can be tampered with. That is a huge problem."
Orin Kerr, a former Justice Department attorney who knows Benedict's prosecutor, says it's suprising that the case came as close as it did to a trial. Kerr has prosecuted similar offenses and now teaches law at George Washington University.
"These cases very rarely go to trial," Kerr says. "They're usually pretty cookie-cutter. The government only has to show possession of child pornography or distribution. Usually that's not difficult to show."
Kerr says: "Usually the photographs come in, and the photographs outrage a jury. If you're a defense attorney, you'd rather not have the jury see the pictures. That's another reason why a lot of these cases (don't) go to trial."
Kerr, who left the Justice Department earlier this year, says it's odd that Benedict would plead guilty and then turn around and try to rescind the plea.
"I think most people, if they were trading computer games and then arrested and charged with very serious felonies involving child pornography -- I don't think most people would wait several years and plead guilty (if) in fact they had done nothing wrong."
Benedict is pinning his hopes on being able to reopen the plea and rescue what remains of a once-happy life.
His father George, a retired AT&T electrical engineer, says that for "six-and-a-half years my son and his family have been under the most inhumane stress imaginable." George took out a second mortgage on his home to help with his son's legal bills, which have reached nearly $200,000.
For his part, Benedict says he's become far more cynical about the justice system than he was seven years ago.
"I don't know if I'll go back into engineering," Benedict says. "I think if I ever do get out of this I'll go into fighting for rights. I need to let people know about this computer evidence -- how prosecutors can alter it."
"What you learned in grammar school in history class about the Constitution -- it's a joke," Benedict says.
(See also: Benedict's plea agreement, indictment and motion to withdraw plea.)
