Court Rejects Double Jeopardy Argument in Child Porn Case

The defendant was arrested for possession of child pornography and was indicted on four counts of sexual exploitation of children. The defendant’s bond prohibited him from having any smartphone, computer, or internet-enabled device at his residence. The State alleged that the defendant violated his bond and presented evidence that he had been on the internet, had submitted images of child erotica to at least one website, was banned from a website for posting child pornography, and had posted sarcastic comments regarding the child pornography laws.

The trial court did not revoke the defendant’s bond because there was no evidence that he had used or possessed an internet-enabled device inside his home, however, the court attached further special conditions to the defendant’s bond which now prohibited him from using a computer or internet-enabled device at any time or place.

The defendant filed a habeas corpus petition alleging that the new bond conditions were overbroad, unduly restrictive, and violated due process. The trial court denied it and the Georgia Supreme Court affirmed, finding that the conditions were reasonably restrictive and that the defendant had a full and fair opportunity to be heard before his bond was modified.

While the appeal on the habeas was still pending, the State re-indicted the defendant with 18 additional counts of sexual exploitation of children. The defendant filed a motion to dismiss and plea of former jeopardy, asserting that the amended bond conditions were punitive in nature and thus the subsequent indictment was in violation of the Double Jeopardy Clause. The trial court held a hearing on the motion and denied it.

The Court of Appeals affirmed and held that jeopardy does not attach in a pretrial proceeding, including a bond revocation hearing, and that jeopardy cannot attach until the defendant is brought to trial. The Court noted that the defendant had not suffered jeopardy at all and that the Double Jeopardy Clause’s prohibition against multiple punishments only applies to punishments following a conviction.