Judge orders man released in Ohio obscene-journal case

Saturday, September 20, 2003

COLUMBUS, Ohio — A Franklin County judge has ruled that a man jailed on child pornography charges should be released after an appeals court dismissed his guilty plea and sent the case back to a lower court.

Judge David Cain of Franklin County Common Pleas Court said in a Sept. 20 court filing that Brian Dalton has already been in jail 18 months and so has no further time left to serve.

First Amendment lawyers believe Dalton is the first person in the United States successfully prosecuted for child pornography that involved writings, not images.

Cain cited the July decision by the 10th Ohio District Court of Appeals to dismiss Dalton’s guilty plea because Dalton got bad advice from his attorney at trial.

The appeals court ruled 3-0 to send Dalton’s case back to Franklin County Common Pleas Court. The Ohio Supreme Court earlier this month refused to deny bail for Dalton. That court has yet to decide whether it will hear the state’s appeal of the appellate court decision.

Dalton was expected to be released yesterday from the Southeastern Correctional Institution in Lancaster, said Benson Wolman, Dalton’s new attorney. Wolman said Dalton was to be sent home under house arrest and electronically monitored.

Wolman and a team of American Civil Liberties Union lawyers have argued that Dalton, 24, was wrongfully imprisoned for what should have been constitutionally protected free speech or, in this case, writings.

Dalton, of Columbus, pleaded guilty in July 2001 to pandering obscenity involving a minor, which falls under Ohio’s pornography law. He later asked to withdraw the plea so he could fight the constitutionality of the law, but Franklin County Common Pleas Judge Nodine Miller refused. ACLU attorneys then appealed.

Dalton had argued that his former trial lawyer didn’t inform him of the legal implications of a guilty plea or ask for an immediate dismissal on First Amendment grounds.

The stories, which prosecutors say were made-up and never acted on, were about three children — ages 10 and 11 — being caged in a basement, molested and tortured. The journal was so disturbing that grand jurors asked a detective to stop reading after about two pages.

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