FAYETTEVILLE, Ark. (KNWA/KFTA) — On January 19, the day of the deadline for post-trial motions after Josh Duggar’s conviction on two child pornography charges, his defense team filed documents with the court requesting a judgment of acquittal or a new trial.
The motion, signed by lead defense attorney Justin Gelfand, is over 75 pages long, including supporting documents. The defense asks for an acquittal pursuant to Federal Rule of Criminal Procedure 29(c), as well as alternatively asking for a new trial if that first motion is declined.
The defense quotes the rule in question early in their filing:
‘If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal,’ where, as here, ‘the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged,’ this ‘Court must grant a Rule 29 motion for judgment of acquittal.
Federal Rule of Criminal Procedure 29(c), quoted in Josh Duggar defense’s motion
The motion explains the rule in more depth, noting elements regarding what crime was charged in the indictment and what the elements of that crime are.
“The evidence elicited at trial does not support a conviction on either count — even in the light most favorable to the Government,” the motion claims. “The Government failed to adduce any evidence that Duggar ‘knew that the visual depictions were of a minor engaging in sexually explicit conduct.’”
The motion continues by addressing video files submitted as evidence, and states that “the jury had no evidence that Duggar personally viewed any specific portion of any of the files allegedly found on the computer.” The defense requested an acquittal on both counts based on this.
In the alternative portion of the filing, the defense notes that “the jury’s verdict may be overturned if ‘the evidence weighs heavily enough against the verdict such that a miscarriage of justice may have occurred.’”
It goes on to state that “‘The Court’s broad discretion empowers it to grant relief based not only on the sufficiency of the evidence at trial but on any other circumstance that might render the trial ‘essentially unfair,’ including trial errors.’”
The defense asks the court to grant Duggar a new trial due to the prosecution “failing to timely disclose exculpatory evidence,” and claims that the government violated multiple rules of procedure and evidence by failing to turn over exhibits created by expert witness James Fottrell in advance of the trial.
The motion explains that the “exculpatory evidence” pertains to Caleb Williams, a former employee of Duggar’s at his car lot. The motion calls Williams “an individual who had access to the car lot and the HP desktop computer during certain relevant time periods,” and they add that “law enforcement had failed to meaningfully investigate the possibility that anyone other than Duggar may have committed the crimes charged.”
Gelfand brought up this possibility during the trial, stating his belief that investigators were “star-struck” by Duggar and did not sufficiently investigate the possibility of someone else having committed the crimes. The prosecution interviewed Williams approximately two weeks before the start of the trial, but he was never called as a witness.
Williams apparently changed his story after being interviewed and sent an email to Department of Justice Trial Attorney William Clayman, a member of the prosecution’s team during the trial, stating the following:
I was completely mistaken about not being at the Wholesale Motorcars lot during the time I was in Arkansas (AR) between May 8, 2019 – May 11, 2019. I do not know if I was on the lot computer or even if I ended up going there. It looks like during my time there, I did odd work for the guys and maybe even Josh Duggar. In the messages between Josh Duggar and I, while I was in AR, as attached in one of these screenshots I am providing, I tell Josh I was planning to come to the lot a couple of days. I apologize for the mistake; I had no intention to mislead you all.
At trial, the prosecution established through forensic evidence and expert testimony that Duggar was the only person present at the car lot at the time that illegal Child Sexual Assault Material was downloaded on his HP computer.
The defense filing states that Williams contacted the prosecution via email again six days later, stating that he had found “a few more passwords,” and saying that “several of the Duggar guys asked me to run back end of some of their social media to help them sell cars.” The court motion states that this email was not provided to the defense until five days into the trial.
For multiple paragraphs, the defense motion describes the importance of this email as “critical” and that the government “hid the ball from the defense during nearly its entire case-in-chief.”
“This deprived the defense of the ability to impeach these witnesses with evidence that yet another person had access to passwords,” the motion says. “Had the defense possessed this information when it became available, it would have meaningfully affected trial strategy and provided additional fodder for cross-examination of Government witnesses.”
The government confirmed that the email was unsolicited and that they didn’t even review it until the evening before the prosecution rested their case. But because of the failure to disclose that email in a more timely manner, the defense motion states that the court “effectively precluded Duggar from presenting a necessary defense witness.” The filing also notes that “Williams had refused to engage in any meaningful discussions with the defense in advance of trial.”
The potential relevance of Williams as a defense witness is discussed at length in the filing. The court ruled that Williams’ criminal record or past history as a sex offender would not be relevant in this trial and that his testimony would only be allowed if it confirmed his presence at the car lot on the dates in question.
The defense took issue with this, noting that “this Court’s ruling concerning Williams’ testimony deprived Duggar of the opportunity to present relevant, material favorable evidence in his favor and this ruling was disproportionate to any legitimate or evidentiary purpose. As such, it violated Duggar’s Fifth and Sixth Amendment rights and this Court should grant him a new trial.”
Duggar was found guilty on both charges he faced, receipt of child pornography and possession of child pornography. He is being held in Washington County Detention Center as he awaits sentencing later this year.