FAYETTEVILLE -- Lawyers for Josh Duggar have asked a judge for a new trial or a judgment of acquittal, claiming that the government failed to show any evidence that Duggar knew that the visual depictions on which he was convicted were of a minor engaging in sexually explicit conduct, a necessary element for conviction.
A federal jury found Duggar guilty of receiving and possessing child pornography Dec. 9.
Duggar, 33, of Springdale was charged in federal court with two counts involving receiving and possessing child pornography. The jury found him guilty on both counts after more than six hours of deliberation over two days.
He faces up to 20 years in prison and fines up to $250,000 on the count of receiving child pornography. The count of possession of child pornography is considered a lesser included offense under federal law and is expected to be dropped.
Duggar didn't testify during his trial.
Prosecutors told jurors that child pornography was repeatedly downloaded on the computer at Duggar's used-car lot on May 14, 15 and 16 in 2019. A password-protected computer partition and separate operating system were installed and used to download and view the child pornography, they said. Evidence placed Duggar at or near the car lot every time child porn was downloaded.
Duggar's lead trial attorney, Justin Gilfand, now contends that the judge should set aside the jury's verdict.
"Indeed, the evidence at trial established that certain files allegedly found on the HP desktop computer were never viewed by any user of the computer and that all the files at issue had been deleted shortly after being downloaded," according to the motion. "Thus, even in the light most favorable to the government, the jury had no evidence that Duggar personally viewed any specific portion of any of the files allegedly found on the computer. As such, there was no evidence from which the jury could base its guilty verdict as to each count."
U.S. District Judge Timothy L. Brooks twice denied motions to dismiss the case, based on insufficient evidence, during trial.
Failing a judgment of acquittal, Gilfand contends the judge should grant Duggar a new trial because the government failed to disclose evidence that would have helped the defense and failed to turn over exhibits created by their expert witness, James Fottrell. Fottrell heads a computer crime forensic analysis unit at Homeland Security Investigations.
The motion also says that Fottrell was allowed to testify about geolocation and GPS data, which he was unqualified to talk about.
Duggar was precluded from calling a necessary witness, Caleb Williams, who could have helped his case by testifying that he had access to Duggar's passwords at the car dealership and did work at the lot, according to the motion. The defense contends that the government "hid the ball" on Williams until it was too late to call him to testify.
The motion also argues that several of Brooks' rulings about evidence were prejudicial and denied Duggar a fair trial.
Duggar, best known for being part of his family's cable television reality show, was accused of using the internet in May 2019 to download and possess the material, some of which depicts the sexual abuse of children younger than 12, according to court documents.
Federal prosecutors said many of the 200 or more images that Duggar was accused of downloading showed children ranging from toddlers to 12-year-olds. At least three police officers downloaded file shares of child pornography from Duggar's computer, according to prosecutors.
Prosecutors also contend that a partition was installed on the computer at the car lot to defeat an application, Covenant Eyes, that would report to Duggar's wife if he accessed pornography of any kind.
Leading up to the trial, Brooks said he would allow the defense to argue that others had access to the computer used to download the child pornography and to bring up those who might have done it, such as employees of the car lot.