Government opposes Peel's motion to recall mandates; ARDC hearing set for Friday

There are no exceptional circumstances in former Madison County attorney Gary Peel’s criminal case that merit the recall of federal appellate court mandates, the government asserts.

The U.S. Attorney’s Office earlier this month filed a response in opposition to a motion Peel filed in June in an effort to have the Seventh Circuit Court of Appeals recall mandates it previously handed down in his case.

Peel, who is incarcerated in Kentucky, was convicted in 2007 on bankruptcy fraud and child pornography possession charges. He 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.

In his motion, Peel asked the federal appeals panel to recall its 2010 and 2012 rulings in his case in light of the U.S. Supreme Court’s 2010 decision in United States v. Stevens, which he contends “exposed this court’s fatally flawed analysis of" his child pornography convictions.

The Stevens court, Peel asserts, made it clear that child pornography laws can’t apply to situations where minors weren’t sexually abused or exploited during the production process.

Peel argues that his prosecution for child pornography violated his due process rights because 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.

He contends that convictions for possession of child pornography should be reversed “because the alleged ‘victim’ was not a minor, by federal definition, when the photos were produced, no minor was abused or exploited in the production process, and the photos were not integral to criminal conduct,” all of which he asserts are prerequisites under Stevens.

In its response opposing Peel’s motion, the government acknowledges that the federal appeals panel has the authority to recall its mandates, but that such a move “is used sparingly, as a last resort against grave, unforeseen contingencies.”

“Recalling mandates is sparingly used because both the victims of crime and the state share a powerful and legitimate interest in finality and punishing the guilty,” the government asserts in its response.

It notes, however, that “because exceptional circumstances do not exist in Petitioner’s case, no grounds exist upon which to recall the mandates.”

The government also asserts that Stevens “has no impact” on Peel’s argument because it “reaffirms the long-standing rule that child pornography enjoys no First Amendment protection.”

U.S. Attorney Stephen Wigginton and Assistant U.S. Attorney Jennifer Hudson submitted the response on behalf of the government.

Besides his ongoing and so far unsuccessful attempts to have his prison sentence changed, Peel is also facing attorney discipline. His law license was suspended on an interim basis in 2008 as a result of his convictions.

In February, a hearing board of the Illinois Attorney Registration and Disciplinary Commission (ARDC) recommended that he be disbarred from the practice of law.

According to the ARDC website, a panel of the review board was scheduled to hear oral arguments in Peel’s disciplinary case at 9:30 a.m. Friday in Chicago.