Judge rules Peel will get only one trial

Steve Gonzalez Jul. 20, 2006, 10:22am

Gary Peel

U.S. District Judge William Stiehl ruled that former Lakin attorney Gary Peel will have only one trial.

Peel, who was indicted by an East St. Louis grand jury on March 23, argued that his right to a fair trial would be prejudiced if he could not separate pornography charges from obstruction of justice and bankruptcy fraud charges.

Court papers filed last month indicate Peel would assert his right to remain silent on allegations he possessed nude photos of his ex-wife's younger, underage sister.

Peel indicated he would need one or two days for his defense in a matter that could send him to prison for 35 years.

Peel's federal public defender Stephen Williams claims for an image to constitute child pornography, it must contain what the statute defines as "sexually explicit conduct."

"There can be no debate that the image in question does not fall within any of the first four categories of depictions that can constitute sexually explicit conduct," Williams wrote in his motion to sever the counts.

"The image does not depict sexual intercourse, masturbation, bestiality or sadomasochistic behavior. In fact, the image does not contain any depiction of actual sexual activity."

"The image does, however, depict the pubic area of the individual pictured."

Williams also said Peel would be further prejudiced if Peel testified about the obstruction and fraud charges but not the child porn.

Assistant U.S. Attorney Kevin Burke countered that argument claiming just because Peel wants to talk about the obstruction and fraud charges and take the Fifth on child porn charges is not sufficient to sever the four count indictment.

"Severance is not mandatory every time a defendant wants to testify on one charge and remain silent on another," Burke said.

He also pointed out that the fraud and obstruction charges relate to the child porn charges so even if severed, child pornography would come up and be admissible at trial.

Burke also pointed out that if severed, jurors would only hear Peel placed the photos in the mailbox, not the reason why they were placed.

He said jurors would have to speculate if his ex-wife wanted the pictures, expected the pictures, or why she was not charged with child porn herself.

"To warrant severance, the defendant must show that the joinder created actual prejudice that would deprive him of a fair trial," Stiehl wrote.

"Put simply, the bankruptcy fraud and obstruction charges are so inextricably intertwined with the defendant's alleged use of, and possession of, child pornography that without this evidence being admitted, the allegations of fraud and obstruction would have neither context nor foundation," Stiehl also writes.

"Although the Court is aware of the possibility of prejudice that might arise from the pornography charges and introduction evidence related to those charges, that same evidence would be separately admissible in the charges in Counts 1 and 2 as being inextricably intertwined with those charges."

"Pornography, by its very nature, is strongly prejudicial."

"In light of the fact that the pornography was allegedly used by the defendant to engage in bankruptcy fraud, the Court finds that severance of Counts 3 and 4 is simply not warranted."

Any additional motions must be filed by Aug. 1. The government will have until Aug. 16 to respond, while Peel will have until Aug. 29 to reply. After that, Stiehl will set a trial date The trial is expected to last about 7 days.

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