Lawyers argue child porn appeal

The Delaware Supreme Court seemed to agree Wednesday with a lawyer representing former Tower Hill School headmaster Christopher D. Wheeler that a search warrant used to find child pornography on Wheeler’s computer was overly broad, and therefore, not valid.

A ruling from the state’s top court in Wheeler’s favor would be significant in the child pornography case that has captured local interest.  Wheeler was head of one of Delaware’s most elite private schools, where tuition can cost $27,125 and whose graduates include U.S. Sen. Chris Coons and television medical personality Dr. Mehmet Oz.

Wheeler was charged in 2013 with 25 counts of dealing in child pornography, using just 25 of the 2,000-plus images prosecutors said they found on his computers and hard drive.

Wheeler rejected a plea deal that would have placed him behind bars for four years. He, instead, was found guilty of all 25 counts at the conclusion of a bench trial and was sentenced to 50 years in prison – two years for each count.

On Wednesday, Deputy Attorney General Andrew Vella and Wheeler's defense attorney Thomas Foley went head-to-head before the Supreme Court in Dover over the validity of the search warrant that allowed investigators to raid his 9,500-square-foot school-owned mansion and office in October 2013.

Chief Justice Leo E. Strine Jr. and the other justices fired questions at Vella that indicated their concerns about the pre-text for the search warrant.

“Was this just a way to get in the door?” Strine asked. “So that if you rummaged through his digital world you could nail him?”

Foley argued that the state invented the crime of witness tampering as a way to get approval for a search warrant and obtain access to Wheeler’s electronics to search for child porn.

Prosecutors claimed that Wheeler was trying to tamper with or intimidate two brothers who told authorities Wheeler sexually molested them more than 30 years ago when they were minors. The brothers wrote to Wheeler in 2013 about the alleged sexual abuse.

Court papers also said his adopted Russian son, Nikolai, had told authorities Wheeler had paid him to keep quiet about sex abuse a decade earlier in Illinois.

In one communication, Wheeler responded to these allegations, saying, "I will not compound your pain by attempting to deny or in any way deflect responsibility for my actions 35 years ago. I did those things. I am the one responsible. ... I'll wait to hear from you about further appropriate steps towards resolution and restitution."

Authorities used these allegations to get a search warrant based on the crime of witness tampering, but the search warrant was not tailored to fit that crime, Foley said.

“This warrant was a complete free for all,” he said. “There was zero limitations and that is the scary point.”

Strine asked Vella why the search warrant would grant access to still and video cameras if the state was only looking for written communications that could be considered witness tampering.

"Why are you looking at his whole universe?” Strine asked.

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Vella, arguing that the search warrant was legitimate, said the language in the warrant was standard,

“There was evidence that he used his computer to communicate with the brothers,” Vella said. “That is where the police looked – in his computers where they are likely to have evidence they were looking for.”

Foley cautioned that judges need to be careful when granting search warrants to not be overly broad.

“An application for a search warrant is an ex-parte communication between law enforcement and the magistrate or the judge,” he said. “Because of that the judge has to be very, very careful to be the gatekeeper for everyone.”

Foley also argued to the Supreme Court Wednesday that the conviction should be overturned because the state never proved Wheeler actually saw the images on his computer.

The images were automatically cached, or stored as data, when Wheeler activated a newsreader software program. The most-recent images police seized were cached in January 2010, three years before the police search.

“With newsgroups, what happens when you subscribe, is you get the whole reel,” Foley said. “They convicted him because they basically assumed he had a dirty mind.”

Vella responded, saying Wheeler had to actively subscribe to the newsreader software programs the specifically were used for sharing child pornography.

“A simple subscription is not a crime, however, with these newsgroups they are dedicated to the free exchange of child pornography,” he said. “That is what Christopher Wheeler signed up for."

The Supreme Court is expected to issue a written ruling on Wheeler's appeal in the coming months.

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.