FAYETTEVILLE, Ark. (KNWA/KFTA) — On the morning of December 1 at the Western District of Arkansas Courthouse in Fayetteville, Josh Duggar’s child pornography began.
Judge Timothy L. Brooks filed a 15-page opinion and order Wednesday morning saying Duggar’s prior allegations of child molestation conduct can be introduced as evidence during the trial.
Before adjourning for lunch at 12:05 p.m., Judge Brooks offered detailed instructions to the jury, each side provided their opening statements, and the first witness of the trial was called.
Duggar and his team entered the courtroom at approximately 8:36 a.m. His lead counsel, Justin K. Gelfand, approached a representative of the court and they went over the aspects of presenting documents and graphics to the jury via computers and cameras, settling on a bright, green color to be used for making visual notes or highlights for the jurors to see.
The judge entered the court at approximately 9:07 a.m. and asked for the jury to be brought up. It took a few minutes for them to be seated, as each member had a spot corresponding to their specific juror number.
“It’s like assigned seats on the first day of school,” the judge joked, eliciting laughs from the jurors and the gallery.
He thanked the jury for returning and voiced his embarrassment at the lack of a proper meal break during Tuesday’s final pretrial hearing, noting that it was “difficult to sort that all out” while wrapping up jury selection.
Judge Brooks then began detailed instructions to the jury, informing them that there would be an additional set at the conclusion of the trial. He noted that the two sets are “equally binding” and “must be followed.”
He began by stating the charges that Duggar is facing, noting that “these charges are simply accusations,” and that the defendant is presumed innocent until proven guilty beyond a reasonable doubt.
“For the evidence, you will decide what the facts are,” he told them. “You may use reason and common sense.”
He continued his very detailed instructions by telling the jurors that they are “the sole judges of the facts.” He also told them to “not allow sympathy or prejudice to influence” them. He added that Duggar is on trial “only for the crimes he is charged with, not anything else.”
The judge outlined in a precise manner what exactly the prosecution must prove for Duggar to be found guilty, including specific, multi-step factors on each charge.
He continued by going over things the jury will hear that are not considered evidence, such as opening statements objections, stricken testimony, and anything outside the courtroom. He also noted that “the law makes no distinction” between circumstantial or direct evidence.
Judge Brooks went on at length about a juror’s responsibility to “weigh and value” testimony as they hear it, making it clear that the burden falls on them to decide what to believe, including all, part or none of what a witness says, based on things such as a particular witness’ intelligence, motive, memory or “general reasonableness.”
To guarantee fairness for the trial, the judge went over eight specific points for the jurors to follow, including not discussing the case with each other until deliberations, not talking with anyone else about it, and not doing any research of their own or consuming media of any kind related to the case.
“You have the best seat in the house,” he assured them when making it clear that they were not to pursue any outside information whatsoever about the trial.
At approximately 9:39 a.m., Assistant United States Attorney Dustin Roberts began his opening statement for the prosecution.
He detailed the explicit nature of the charges, including noting that some of the “prepubescent minor girls” involved in the images and videos that will be shown to the jury are as young as seven-years-old.
Roberts noted that these girls were “sexually abused and sexually violated,” and his voice rose in volume after reading some of the graphic names and titles of the files in question.
“We will ask you to hold him accountable,” he said to the jury, of Duggar. “And find him guilty.”
Roberts went on to detail the government’s case, including specifics about the Little Rock detective that monitors the “trafficking and trading” of sexual images of minors. He told the jurors specifically what they can expect to see in these files, in graphic detail.
He then outlined the federal process used to find the alleged user of those images that connected with the police via a peer-to-peer file-sharing network: Duggar.
When explaining the circumstances of searching the premises at Duggar’s used car dealership in Springdale, the prosecutor noted that one of Duggar’s first statements during an interview with authorities was “So what, guys, was someone downloading child pornography?”
He described the three confiscated electronic devices–an iPhone, a Macbook laptop, and an HP All-in-One desktop computer, and said that Duggar told officers he used them 50-50 for work and personal purposes.
Roberts went on to describe a Linux partition performed on the HP computer, as well as a “Covenant Eyes” application that restricts viewing of objectionable material online and reports attempts to do so to another user. Roberts stated that their case will include a forensics computer expert that will explain that the application in question does not work on Linux, and how this can be a method of bypassing internet security programs.
“Our case is based on fact,” he concluded. “Evidence. And common sense.”
Gelfand began the defense’s opening statement at approximately 10:02 a.m. He painted a very different picture of the events, telling the jury that “if you like a good mystery, then this is the case for you.”
“Why does it have to be Josh?” he asked. He said that’s what investigators did was “bury their heads in the sand” over the course of 30 months.
“You’re going to see some disturbing images,” he admitted. “But it’s not about that. It’s a classic, old-fashioned whodunnit.”
He stated that the defense’s case focuses on a “forensic trail,” and he began questioning the details of that with regards to his client from the very moment police first detected the online activity that Duggar is charged with.
Gelfand noted that it was approximately one month before the files and the case in question were brought to federal agents, who then did “virtually nothing.” He described difficulty in finding a specific location related to the charges and detailed an event of officers showing up at the wrong house.
“Details matter,” he said, the first of at least three times he would do so during the day’s first session. He went on to explain that nine devices were seized, and only two of those were personal products of Duggar’s.
“Josh is a Mac guy,” he added, then noted that no child pornography was found on his Apple-brand personal devices.
“Computer forensics is as close to DNA as you get,” Gelfand stated, before getting into an explanation of thumb drives that were confiscated during the investigation of Duggar’s business.
Regarding the HP computer with Linux, he felt that the investigation of it was insufficient. He noted that it contained a default user name, “Dell_One” and that “the prosecution has no clue who the Dell user is because they didn’t check.
Gelfand went on to state that while Duggar is “a great guy,” he “is not a computer genius.” He detailed Duggar’s homeschooling to the jury, noting that his client received a GED at age 16, with no further education after that.
He also noted other individuals that had access to the HP computer and added many details and specifics about files, file sharing, Bit Torrent applications, and other forensic computer details. He noted that an expert in the field will be one of their key witnesses.
At 10:32 a.m., opening statements concluded.
The court called a short recess afterward, and upon returning, Judge Brooks informed everyone that juror #38, an alternate, had been released due to a “minor medical issue.”
After that, the prosecution called the first witness of the trial.
Speaking for the government, Assistant United States Attorney, Carly Marshall called Detective Amber Kalmer of the Little Rock Police Department.
Det. Kalmer took the stand and testified about her 13-year-career as a police officer, including a stint in undercover narcotics and her current position in Vice as part of the Internet Crimes Against Children (ICAC) task force.
She spoke about the many training courses she has taken, including a 200-hour class to become a certified forensic examiner of computers and cell phones.
Kalmer then discussed peer-to-peer sharing, calling it “one of the most common ways to share child pornography.”
She described that law enforcement has their own software to engage in these peer-to-peer transfers, which they use to find and track known illegal images of children.
The program gathers information such as the other user’s IP address, geolocation, and “hash values” that serve “like thumbprints” for individual files.
Kalmer noted that she was using this software on May 14, 2019, when it connected with a user and IP address in Springdale. Over two days, that user sent a video file and a ZIP file containing “approximately 65 images.”
Pieces of this video and some of the photographic files were then shown to the jury. Gallery monitors were turned off for the presentation of this sensitive material.
The prosecution submitted three files into evidence: two logs of the computer-generated, peer-to-peer activity as Government’s Exhibits 1 and 2, as well as the video and photos as exhibits 3 and 3a.
In cross-examining Det. Kalmer, Gelfand once again stated that “details matter.” He asked her detailed questions about Bit Torrent specifics, such as version numbers in use.
Det. Kalmer stated that it is “best practice” to leave the file-sharing application open 24-7, which led the defense to question whether she was actually present when the peer-to-peer connection occurred. She couldn’t verify that she was.
The defense also dug into the details of a nearly 40 minute period of time the logs noted as “unsuccessful attempts” to connect.
Kalmer also testified that she made no police reports or logs of her activity before contacting Special Agent Faulkner and handing the case over to him.
On redirect by the prosecution, Marshall asked Kalmer if she felt like the “be-all, end-all” of this case.
“Absolutely not,” Kalmer replied.
At 12:05 p.m., the Judge ordered a lunch recess. The jury will be called back at 1:20 p.m.