BY MAIRE O’NEILL
Scott Mallory returned to First Judicial District Court in Santa Fe Monday to seek the return of two computers and two cell phones held in evidence on a 2016 charges which were dismissed by Judge T. Glenn Ellington in August.
The dismissal followed a New Mexico Court of Appeals decision in May which upheld a ruling by Judge Ellington suppressing information, photos and images on the computers and phones.
Mallory was arrested by Los Alamos police in January 2016 and charged with sexual exploitation of children under 18 years – visual media, after forensic searches of his computer allegedly uncovered images of young female teenagers, some of which were focused on the clothed breast area and 250 items bookmarked as “child erotica and child pornography”. A file containing a diary entry with sexual references toward a 16-year-old girl also was allegedly found.
Mallory’s attorney Daniel Marlowe told the Court that the state had objected to the return of the items. He said he met with Mallory and further conferred with him, and that Mallory did not have any problems if the state wanted to delete “any type of naked photos per se prior to releasing the computer”. Marlowe said Mallory keeps a diary on the computer and works from home on there.
Assistant District Attorney Kent Wahlquist said his issue with an order proposed by Marlowe was that it told the law enforcement agency what to do with the evidence. Although never named in Court, that agency is believed to be Los Alamos Police Department.
“That has never been the practice of the district attorney’s office. What we let the law enforcement agency know is that evidence is no longer needed and they can follow their own internal policies and procedures to dispose of that evidence,” he said.
Wahlquist told Judge Ellington the issues is the child pornography on Mallory’s computer. He said handing the computer back to Mallory would have created two issues: It would make the law enforcement agency violate state and federal law by distributing child pornography and they could wait in the parking lot and arrest him for having child pornography in his possession. He said the law enforcement should be allowed to follow their policy and procedure with how they dispose of the evidence.
“The issue with what the defense suggests with deleting some of the photos is that there were hundreds of photos on the computer. Not all of them was I planning on proceeding on for pornography charges. In my review I counted about 32 that I anticipated on presenting to the jury,” Wahlquist said. “Some of them were borderline and we do not want the law enforcement agency to sit there and debate, ‘Is this something that can be returned or is this not,” and go through the defendant’s computer deleting some things and not deleting others. The defense mentioned the journal that the defendant kept on his computer. That was also evidence that I anticipated presenting at trial before the suppression order because it showed his intent in the possession of the photos. That’s my issue with the order that the defense presented – it told a law enforcement agency what to do with the child pornography.”
Marlowe said it has never been determined if there’s actually child pornography on Mr. Mallory’s computer.
“He does have constitutional rights. We never reached the stage of litigation on this issue. The matter was dismissed prior to trial. Mr. Wahlquist was present when we interviewed Special Agent (Owen) Pena from the (Attorney General’s) office that looked at the photos and he frankly couldn’t determine the ages of the persons. I just want to be clear. The case has been dismissed…. and he’s got family photos, all sorts of history from his family on there that’s important to him,” Marlowe said. “In an effort to try to compromise the situation, if Mr. Wahlquest is going to develop consternation of the 32 photos, my client has no problems with those being permanently deleted. This is the first time I heard about the diary but he doesn’t have a problem with the diary being deleted,” .
Judge Ellington said he has never seen the photos and had no idea of how many photos are on the laptop. He ordered the return of the items to Mallory and directed Marlowe to make arrangements with the law enforcement agency “to sit and go through the images with them and delete the photos”.
“Because what it there’s another motion or subsequent claim that there’s other valuable information on there that is deleted,” Judge Ellington said. Mallory also agreed to delete the diary in question.