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An attorney for a Salt Lake City businessman serving a lengthy prison sentence for having thousands of child pornography images and videos on his computers is pushing to modify a ruling that allowed the state to prosecute the notorious racist killer Joseph Paul Franklin after a conviction in federal court.
An attorney for D. Chris Robertson, who is serving up to 15 years in prison for his 2012 conviction on 20 child pornography charges, told the Utah Supreme Court on Monday that Robertson shouldn't have been charged in state court after he received a light sentence in federal court based on the same set of circumstances and evidence.
"Prosecutors don't have the discretion to drag criminal defendants through the courts on one charge after another," Robertson's attorney, Elizabeth Hunt, told the justices, citing the constitutional ban of placing a person in "double jeopardy."
Hunt said state law doesn't allow for a defendant to be charged if a court in another state or a federal court already has tried them on the same evidence.
But in a 1987 decision, the Utah Supreme Court held that state and federal prosecutions of Franklin were legally justified because each was a separate government entity with its own laws.
Franklin was a serial killer who in 1980 shot to death two black men who were jogging with two white women in Liberty Park in Salt Lake City. He was convicted of civil rights violations in federal court and murder charges in state court.
Robertson, 64, the owner and manager of a heating and air conditioning company, was arrested in 2009 after employees reported that he was openly viewing child pornography on his computer.
The Utah Internet Crimes Against Children Task Force seized his computers and found 24,447 images and 386 videos containing child pornography.
The Task Force referred his case to federal prosecutors, and he was indicted on one count of possession of child pornography. Robertson pleaded guilty and faced a maximum sentence of 10 years in prison.
But after U.S. District Judge Clark Waddoups imposed a sentence of two days in jail plus time served, Utah prosecutors filed an additional 20 charges in state court.
Supreme Court Justice Deno Himonas asked why state prosecutors shouldn't be allowed to charge Robertson if they think "that's an unjust and outrageous sentence."
Hunt argued that only state officers and prosecutors worked on the Robertson case, then they asked federal prosecutors to file a case in U.S. District Court, a decision that should preclude them from filing essentially the same case in state court even under the Franklin decision.
"They made a tactical decision to begin in federal court," she said.
But Assistant Utah Attorney General Jeffrey Gray told the four justices — hearing the case before law students and professors at the University of Utah — that the federal and state cases were separate prosecutions based on different laws and different evidence.
The federal case relied on a portion of the images found on his computers, while the state prosecution was based on individual images of children, he said.
"It was a different prosecution," Gray said. "You can't call it the same offense."
Justices at different times questioned whether parts of the Franklin decision might need to be updated or whether the case should be sent back to a district court for more findings of fact.