Two years probation.
Last week Lawrence Brose stood in the well of the courtroom before United States District Court Chief Judge William Skretny and learned that two years of probation would be his punishment after six years of a grueling prosecution that resolved when the United States Attorney’s Office offered to reduce the original charge of possession of child pornography and agreed that it would not oppose a request for a sentence other than that called for in the Federal Sentencing Guidelines.
Two years probation.
By this reporter’s count, close to a hundred friends and supporters of Lawrence Brose sat in the gallery of Judge Skretny’s courtroom in the gleaming new Robert H. Jackson Courthouse and listened as the judge spoke to Brose and his lawyer, Paul Cambria, about the contents of the Department of Probation’s report and recommendations. They probably knew some of it, each a slightly different piece. About Brose’s career as an artist, about his family history, about his tenure as director of Buffalo’s CEPA Gallery. Everyone there was someone for whom Brose had been a positive force. All of them knew that he’d lost his job as CEPA director because of the charge against him. Everyone there knew that he’d denied the charge, and fought the charge, and taken a plea because it was impossible for him to fight anymore. All of them had watched his fight, and all of them believed his denial of the charge. Some believed him because he’d denied it—an act of faith and belief in this man. Some came to believe, as they witnessed the fight that Brose mounted, or as more and more facts about the case came to light.
The people in the gallery knew that the images that the ICE agents were looking for had never been found; that the computer in question was virus-infected and on an unsecured network. They knew that some number of the images that were claimed to be pornography were from Brose’s award-winning experimental film De Profundis, and a substantial number of them had even seen De Profundis and therefore knew that it contains nothing close to child pornography.
The judge knew these things too, of course. He knew that this was a high-profile case, and he knew that the defendant before him had many friends in the community. He knew that even the reduced charge was a heavy charge. Several times over the course of the hour and a half proceeding he acknowledged this, and several times he also said, “I think you can see where I am going with this.” Nobody that I spoke to afterward saw where he was going, but there were several moments when it looked like it was going to go badly for Brose. Cambria was called upon to speak to the question of what the defense felt was appropriate: He noted that Brose had received support from “people from all strata of the community,” and suggested that perhaps a fine and some community service, or perhaps probation, would be appropriate. He noted that Brose had been living under severe restrictions while the charges were pending: unannounced home visits from the Department of Probation, drug tests. He was not allowed to have a cell phone, and had monitoring software installed on his computer, at his own expense. He had been forbidden from drinking alcohol and had been through substance abuse counseling.
Because remorse is a factor to be considered, the judge asked Brose if he had anything to say. Brose, attired in his usual all black suit, glancing at his notes, read this statement:
The focus of my work and personal life has never been in the area of forbidden images of youth. Pornography is the opposite of what my work is about. I speak in solidarity with those in the margins and not for those who victimize. I am sad and disgusted that my work and I have become so associated with that which I plead to but I am aware that I must acknowledge culpability in this matter and bring this to an end—and so I do. I accept full responsibility for the actions that have lead to this point. I make no excuses for my conduct and I hope that this may be a cautionary tale for others. My failure to appreciate the hazards of Internet usage in this area has put me in a position that I could never imagine and the lessons learned here have been tragic and painful. I am deeply grateful for all of the wonderful people who have stood by me through this awful ordeal and it is my hope that Your Honor will find it in his heart to show mercy and be lenient in your sentencing of me for this unfortunate error which I deeply regret.
There was an audible intake of breath, as everyone in the gallery who had been holding their breath to listen exhaled in relief and took in air again. Judge Skretny spoke, with more than a note of disapproval in his voice: “This was more than an error. This was a serious crime.” The gallery took in air again, not quite a gasp. The judge then turned to Michael DiGiacomo, the Assistant US Attorney, and, noting that the prosecution had not submitted any opposition to a non-guidelines sentence, asked for his opinion. DiGiacomo told the court that although the government had agreed that it would not oppose a non-guidelines sentence, this was not the same as agreeing to be silent in the face of a plea for leniency. The government had merely agreed not ask for a sentence harsher than the guidelines. Following this demonstration of why you should always count your fingers after you shake hands with the government, DiGiacomo then proposed that six months of home confinement and a term of probation seemed fair to him—a sentence that was less than the guidelines prescribed, but more than the defense had requested. The judge then asked the representative from the Department of Probation to meet with him privately in chambers and adjourned.
What followed was probably the longest six minutes of Brose’s life. Federal court often takes on the trappings of high Episcopalianism, and Judge Skretny’s return to the bench had that aspect: Everyone in the gallery shot to their feet as though this manifestation of respect was a form of prayer for mercy.
Two years probation. There was quite a bit more—about how reprehensible a crime child pornography is, for example. “There is no excuse for the victimization of children,” the judge said, “intentional or unintentional,” and at that moment it was suddenly clear where he was going with this, although the outcome was still up in the air. Technically this statement was precisely what the law says: The crime Brose pleaded guilty to is a strict liability offense. It makes no difference whatsoever what Brose knew or didn’t know was on his hard drive—but the judge was signaling that he believed that Brose didn’t know. Whatever was there was there because of a virus, or unsolicited and unread spam, or something else.
Two years probation, with conditions. The key condition didn’t come to light until almost at the end of the afternoon, when the court was just about to adjourn. The representative from the Probation Department stood up and asked about monitoring Brose’s computer. Would he be obliged to pay for the installation of monitoring software, as he had to while the case was pending? The judge, who had already swiveled in his chair, about to get up and exit, swiveled back. No, he said. Probation could have access to Brose’s computer, of course, but only if it had reasonable cause to suspect that Brose had violated the terms of his probation. In other words, the judge believed Brose. He accepted that Brose had not intentionally done what he had been accused of—but he’d be well advised to buy anti-virus software.
Two years probation. I have been in a lot of courtrooms, but this was the first time I have ever seen the gallery burst into applause at a sentencing.