21 Year-Old with Asperger's NOT Indicted/Charged on Child Pornography Charges


Attorney Fran Tosi Ward

"Michael" is a 21 year old young man who was diagnosed with Asperger's Disorder, ADHD and Bipolar Disorder. He was also diagnosed in the past with Autism. Michael lives with his mother and siblings. The FBI raided his home and accused him of downloading illegal content from the internet including approximately 65 images of child pornography.

Computers, iPods, and phones were seized from the home. Michael's mother was not present when the FBI raided the home which caused a lot of undue stress and anxiety for Michael. Mom came to our office very upset and concerned for her son, his mental well-being and concern what would happen to him legally. We immediately planned a course of action and guided mom and Michael through a potentially very serious legal problem.

Michael faced severe penalties since this involved a crime involving child pornography. Specifically, Michael was facing felony charges for Pandering Obscenity Involving a Minor in violation of ORC Section 2907.321, a felony of the second degree under certain circumstances. A second degree felony carries a mandatory prison term of up to eight years, fines and requires one to register on the Sex Offender Registry.

At Koffel Brininger Nesbitt, we strongly believed that given Michael's disabilities, he should never be charged with this crime. We set out to convince the Prosecutor that Michael did not have the mental capacity to know he was committing a crime, did not understand what he was doing was wrong at the time, and thus should not be prosecuted for such a crime. After Michael came to our office, he was further evaluated and underwent a Comprehensive Psychological Evaluation and Risk Assessment.

The result of this evaluation by a Psychologist confirmed what we always believed: it was conceivable that Michael did not understand the significance of what he was viewing when downloading child pornography. It was also determined that Michael would benefit from a Guardian to assist him with di managing his activities of daily living. The matter proceeded to the Probate Court and it was determined that Michael was incompetent due to a cognitive impairment which caused him to be unable to care for himself. Michael's mother was appointed as his Guardian.

After months of investigation by a detective and FBI, the case was sent down to the Franklin County Prosecutor's office. The Prosecutor assigned to Michael's case had the ultimate decision as to whether or not to indict Michael on serious charges of child pornography. We immediately put together a large packet of information regarding Michael's medical/psychological history, his Psychological Evaluation, the Magistrate's decision from Probate Court, as well as various articles on Autism and Asperger's Syndrome and forwarded them to the Prosecutor so she would be fully aware of Michael's background prior to making any decision to indict. We also requested a meeting with the Prosecutor prior to her decision so we could personally discuss Michael and why he should not be prosecuted. Approximately one week later, the Prosecutor agreed with defense counsel and decided not to charge Michael with a felony. Needless to say, Michael and his mother were extremely happy and grateful for all of our efforts to protect Michael.

We are seeing many children, teens and young adults coming through the court system that have been diagnosed with ADHD, ADD, Autism Spectrum Disorder, Tourette Syndrome and other disabilities that impact behaviors and can be at the root of behaviors that constitute crimes. We are not saying this is an excuse for the crime, but it is certainly a reason that should be considered in prosecuting and defending these children and young adults. These individuals should be given extra care when handling their case.

An attorney should be well-versed in understanding their client's neurodevelopmental disorders or particular disabilities and making sure the courts and prosecutor's are made fully aware of how these conditions impact their client's case. Everyone has the right to an attorney, but these youngsters need an attorney that is willing to go the extra mile in defending their case and protecting them through the investigative and court process. Please contact us if you have a son or daughter or know someone that suffers from a neurodevelopmental or behavior disorder and is faced with legal issues.