A former Madison County attorney now behind bars is once again trying to appeal a federal judge’s ruling over his 2007 convictions.
Gary Peel on Friday filed a petition seeking a certificate of appealability in regards to U.S. Judge William Stiehl’s April order that denied his motion to set aside, vacate or correct the 12-year prison sentence he received for his bankruptcy fraud and child pornography possession convictions.
Peel was accused of blackmailing his ex-wife with nude photographs of her then-minor sister, who he contends he had a consensual sexual affair with.
Since his convictions, Peel has represented himself in various court filings from behind bars in Kentucky.
In April, U.S. Judge William Stiehl issued an opinion denying Peel’s March 2012 motion to have his prison sentence changed and rejected as moot his requests for summary judgment and to expedite the entry of orders in his case.
Peel’s request was made under Section 2255, which provides remedies for prisoners to attack their sentences, and alleged 16 grounds for relief, all of which were based on claims of ineffective assistance of counsel.
In his motion, he asserted that his prosecution for child pornography violated his due process rights because he and his ex-wife’s sister were consenting adults.
Peel claimed that when he took the nude photos in 1974, the age of consent in Illinois was 16 and there was no state child pornography law on the books at that time.
Stiehl, however, didn’t buy those arguments and denied all of Peel’s motions, dismissed the case with prejudice and refused to issue a certificate of appealability in the order he handed down on April 29.
“His due-process arguments amount to the claim that ignorance of the law is a defense to criminal prosecution, which is not true, except in limited situations that do not apply here,” Stiehl wrote. “His attorneys were therefore wise not to make the due-process arguments, if they considered them.”
Although Peel claimed 16 was the age of consent in Illinois in 1974 and that there was no child porn statute back then, Stiehl stressed in his order that Peel was convicted under federal law, which defines a minor as anyone under 18.
“What petitioner did in 1974, and the state of the law in Illinois then, is not relevant,” Stiehl wrote.
Stiehl also refused to issue a certificate of appealability, something that Peel would need to obtain from the federal district or appeals courts if he wants to appeal the ruling.
Saying that Peel’s claims are either without merit, not relevant, have already been addressed or frivolous, Stiehl wrote in April that he “does not find that reasonable jurists would find its assessment of the constitutional claims debatable or wrong.”
In his recently-filed petition asking the 7th Circuit for a certificate of appealability, Peel repeated many of the same arguments he made in Section 2255 motion.
He continues to argue that his prosecution for child pornography violated his due process rights.
“There is no polite, non-offending way to suggest to this court that its analysis of Peel’s child pornography conviction is fatally flawed without risking retributive justice,” Peel's petition states. “The failures of Peel’s defense counsel are certainly contributing factors.”
Peel claims that a trilogy of U.S. Supreme Court cases – New York v. Ferber (1982), Ashcroft v. Free Speech Coalition (2002) and United States v. Stevens (2010) -- support his argument.
In Ferber, Peel states in his petition, the nation’s high court upheld a state statute that criminalized promoting and distributing material depicting sexual performances by children under the age of 16.
The ruling in Ferber, Peel, asserts “initially appeared to create a category of constitutionally unprotected speech that was so broad as to include all visual depictions of sexual conduct by children under a certain age.”
But, Peel claims that “broad interpretation was called into question” by the court’s decision in Ashcroft, which he states struck down, on First Amendment grounds, a federal law that criminalized sexually explicit images that appeared to depict minors but were actually computer generated images.
The Ashcroft decision, Peel adds in his petition, noted that the judgment in Ferber was based on how the pornography was made, rather than what it communicated.
While the 7th Circuit in a 2010 ruling in Peel’s case said that Ashcroft was limited to virtual computer generated images, Peel said it excluded sexually explicit images of children of a specified age from First Amendment protections.
“Under this Seventh Circuit view, it makes no difference that Peel's affair with [his ex-wife’s sister] was legal or consensual at the time, and it makes no difference that photographing the conduct was legal at the time the photos were produced,” Peel argues in his petition.
“Nor did the Seventh Circuit differentiate between criminally sexually abusing or exploiting a child under the age of 16 in order to create the pornography, on the one hand, and taking private photographs of legal, consensual sexual conduct on the other hand,” he contends.
Peel adds, “Under this approach, the only issue to be decided is whether the person photographed was under the age of 18 by current statutory definition.”
This analysis, Peel claims, is “no longer valid in light of” Stevens, which he states was decided 36 days after the 7th Circuit in 2010 affirmed the lower court’s ruling in Peel’s case.
The Stevens court, Peel contends in his petition, made it clear that child pornography laws can’t apply to situations where minors weren’t sexually abused or exploited during the production process.
Pointing to this trio of U.S. Supreme Court cases, Peel claims that unless an actual minor is involved at the time of the production of pornography and the images show criminal abuse or exploitation of that child, “then those images (whether computer generated or, as here, utilizing youthful appearing adults) enjoy absolute First Amendment protection.”
Peel claims that because his ex-wife’s sister was an adult by federal definition in 1974 when the photos were taken, they are constitutionally protected as free speech.
In his petition, Peel urges the 7th Circuit to “re-evaluate its interpretation of the law as applied” to his child pornography conviction and take note that ineffective assistance of counsel contributed to its allegedly erroneous application of the law.
He also contends he is entitled to a certificate of appealability because “reasonable jurists would find the district court’s [April] order concerning the constitutional claims to be debatable, wrong, or at least deserve encouragement to proceed further.”
Peel’s law license was suspended on an interim basis in 2008 as a result of his convictions.
A hearing board of the Illinois Attorney Registration and Disciplinary Commission (ARDC) in February recommended that he be disbarred from the practice of law.
The Illinois Supreme Court has not yet issued an order disciplining Peel.