Judge denies reduction of sentence in child porn case

Nehus
Nehus

A petition for relief filed in March to reduce the 24-year prison sentence of a former elementary school teacher convicted in 2016 on 10 counts involving child pornography was denied Monday after a short hearing in Garland County Circuit Court.

Local attorney Q. Byrum Hurst filed the motion March 28, 2018, on behalf of Zachary Thomas Nehus, 46, who pleaded guilty March 1, 2016, to 10 counts of distributing, possessing or viewing matter depicting sexually explicit conduct involving a child. Nehus was sentenced March 21, 2016, by a jury after a two-day hearing before Judge John Homer Wright.

The jury recommended a sentence of three years on eight of the counts, to run consecutively, for a total of 24 years, and 10 years in prison, suspended, on the two remaining counts, so he will serve 10 years of probation after his release.

Nehus was arrested Sept. 25, 2014, and originally charged with 30 counts involving child pornography, but prosecutors had agreed to withdraw 20 of the counts as part of his negotiated plea deal.

At the start of Monday's hearing, Assistant Arkansas Attorney General Jill Irwin, acting as a special prosecutor in the case, argued Wright had no jurisdiction to hear the petition because the time to file an appeal in the case "has long since expired" under Arkansas law. "This is not the proper avenue to submit it," she said.

"The defendant had over two years to appeal the verdict through the proper channels," Irwin said, noting no direct appeal or Rule 37 argument regarding effectiveness of counsel were filed within the 30 days allowed.

"There is no basis for this hearing," she said, and at the conclusion of the hearing, Wright agreed with her.

"I don't think I have jurisdiction," Wright said in denying the petition, noting he allowed Hurst to make his arguments on the record. "You can present your case to the Court of Appeals and if they choose to remand it back we can have a full-blown hearing."

Hurst argued for relief on two major points, noting Nehus' sentence was disproportionate to sentences given in other similar cases where the defendants received less prison time, and that Nehus' conviction on 10 counts constituted double jeopardy since they involved "several files downloaded in one computer transmission."

He said Nehus was essentially charged with 10 counts for "one single act" and that the court did not have the right to impose the nine remaining counts under the double jeopardy clause of the Fifth Amendment. Hurst also noted that an argument regarding a constitutional amendment "can be raised at any time" and was not limited by the 30-day deadline.

He cited a 1955 case involving a man charged with two counts of violating the Mann Act for transporting two women across state lines where the U.S. Supreme Court later ruled that involved one act and reduced it to one count.

"This was similar to when (Nehus) downloaded multiple images at one time. He can't be charged with 30 different counts. They are trying to turn a single transaction into multiple offenses even though the evidence is identical on each of the counts," Hurst said, arguing Wright should "void and vacate" nine of the counts.

Irwin responded that Hurst's argument was "factually wrong" and noted there was evidence presented at trial of multiple different devices seized involving "different downloads, different flash drives, different hard drives." She cited a similar case in White County in which the Arkansas Supreme Court ruled it was OK to charge multiple counts because each count involved a separate act.

Reciting the titles of some of the videos Nehus had admitted to downloading which referenced children's names and various sexual acts being performed, Irwin said, "These were the videos the jury had to endure at trial," and noted they involved multiple downloads over a 10-year period before he was arrested.

"Mr. Nehus got a gift when we withdrew the other 20 counts," she said. "He got a gift that we only prosecuted 10 counts."

In his petition, Hurst cited multiple cases, including many in Garland County, where defendants charged with similar offenses received less time than Nehus. On Monday, he noted one case that was "virtually the same charge and involved the same number of counts" where the accused was sentenced to 15 years, "almost half of what (Nehus) got."

In her response, Irwin noted the 8th U.S. Circuit Court of Appeals "does not require comparative sentencing," and noted Arkansas "is one of the last few states that still rely on jury sentencing. So this argument is irrelevant. It does not apply in Arkansas."

She also cited a similar "but much less severe" case in Garland County earlier this year where the accused was sentenced to 60 years in prison and a 2014 case in Garland County where the accused was sentenced to 180 years for "counts involving the same type of material. But it doesn't matter because it's up to the jury."

Hurst said the images involved "are disgusting. You could argue they are more disgusting to some than others, but regardless, they are disgusting."

He said Nehus had never been accused or convicted of a crime before this case and was a "nonviolent offender." He said there was "no evidence he ever harmed or touched a child." In the petition, he stated Nehus had "an exemplary record. He was steadily and gainfully employed, had obtained a high educational level and by all accounts had been a good and productive citizen of the state of Arkansas and a good father to his children."

According to Nehus' arrest affidavit, special agents with the Arkansas attorney general's office had conducted an investigation into the possession and distribution of child pornography, which led them to Nehus' residence.

Pursuant to the execution of a search warrant, the agents made contact with Nehus who admitted to downloading, viewing and collecting child porn. Forensic reviews of his computer and storage media revealed more than 40 videos of confirmed child porn and Nehus was taken into custody without incident.

Nehus was employed at the time as a fourth-grade teacher at St. John's Catholic School, but resigned the day of his arrest. He was later released on $75,000 bond pending trial.

Local on 08/01/2018

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