Not The Least Culpable Offender

The District of Columbia Board on Professional Responsibility recommends statutory disbarment of an attorney convicted of knowing possession of child pornography

Respondent pled guilty to 100 counts of knowing possession of child pornography with the intent to distribute in violation of section 11-207 of the Maryland Criminal Code and forty (40) counts of knowing possession of child pornography in violation of section 11-208 of the Maryland Criminal Code.

Respondent is the former Mayor of College Park, Maryland.

Least culpable offender under the statute

We have not located a similar case applying section 11-208, which prohibits possession of images of children under sixteen engaged in sexual conduct. However, Maryland law does not prohibit sexual conduct between fourteen- or fifteen-year-olds and partners who are no more than three years older. See Md. Code Ann., Crim. 6Law § 3-308(b)(2)-(3). Thus, it appears that the least culpable offender convicted under section 11-208 would be a fourteen- or fifteen-year-old who possessed images of lawful sexual relations with a partner no more than three years older. Like section 11-207, under Moir, a violation of section 11-208 is not a crime of moral turpitude per se.

Disciplinary Counsel’s position on per se analysis

We recognize Disciplinary Counsels argument that it is unlikely that the least culpable offender who was a member of the Bar would be a teenager who possessed images of his or her lawful sexual relations. See ODC Statement at 5-6. That argument has some appeal, as we are considering the sanction to be imposed because a member of the Bar has committed a crime. However, the least culpable offender analysis requires that we focus on the elements of the crime, without regard to the particulars of the lawyer who committed the crime. The facts relating to the crime, are considered in deciding whether the crime involved moral turpitude on the facts, which we resolve by summary adjudication below.

Summary adjudication based on admitted conduct

We have reviewed the record in the light most favorable to Respondent, and have determined that there are no material issues in dispute. The facts admitted by Respondent show that he intentionally retained 140 videos depicting child pornography. He also distributed videos of child sexual abuse material using secured messaging and social medial applications including Kick and Telegram. These images depicted juvenile males as young as one to six months old through at least twelve years old with their genitalia exposed in a sexually explicit manner. This conduct was base, vile and depraved.

Moral turpitude 

Clearly, Respondent was not the least culpable offender, sharing images of lawful sexual relations. He intentionally trafficked in images of child abuse, over and over again. His conduct is far more serious than that in In re Wolff, where the respondent reluctantly sold five photographs depicting minors engaged in sex acts. 490 A.2d 1118, 1119 (D.C. 1985), aff’d on reh’g en banc, 511 A.2d 1047 (D.C. 1986) (en banc). The Court disbarred Wolff for engaging in a crime involving moral turpitude after concluding that his desire for gratification exceeded his ability to demonstrate a public respect and appreciation of existing societal morals and values. Id. at 1120 (citation omitted). The same is doubtless true here, and disbarment is likewise warranted.

In D.C., a statute requires disbarment for conviction of a crime involving moral turpitude. (Mike Frisch)