Josh Duggar is getting sentenced this week but he is not getting a new trial or an acquittal.
One day before the disgraced former 19 Kids & Counting star is scheduled to be sentenced for his crimes of receiving and possessing child sex abuse materials (CSAM), Josh’s request for an acquittal or a new trial was denied by Judge Timothy Brooks, the same judge who will be sentencing Josh on Wednesday.
In a 29-page document filed on Tuesday and obtained by The Ashley, Judge Brooks– who had previously denied two oral motions for acquittal that were filed by Josh’s defense team right after he was convicted in December 2021— addressed the third motion filed shortly after.
“Now, Mr. Duggar brings a post-trial Motion for Judgment of Acquittal Under Rule
29(c) (Doc. 131),” the court documents state. “He argues ‘there was no evidence of mens rea from which the jury could base its guilty verdict as to each count.’ In the alternative, he requests a new trial under Rule 33(a) due to the Government’s alleged failure to timely disclose certain evidence and the Court’s rulings on witness testimony… For the following reasons, the Motion is DENIED.”
The documents go on to list what it would take for Josh to be given a new trial, stating that his case does not meet these legal standards.
“A verdict will only be overturned if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. Alternatively, Rule 33(a) states that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” “[T]he court has broad discretion in deciding motions for new trial, and its decision is subject to reversal only for a clear and manifest abuse of discretion.”
Judge Brooks also shut down Josh’s request to be acquitted of the charges, due to the fact that the government didn’t show the jury sufficient evidence that Josh actually viewed the child sex abuse materials found on his computer.
(Josh acknowledged that the hundreds of images and videos found on his work computer do qualify as CSAM; however, he says that he didn’t actually look at them.)
“Mr. Duggar argues the Court should enter a judgment of acquittal as to both counts
of conviction because the jury was not presented evidence sufficient to show he actually
viewed any child p0rnography…” Judge Brooks writes. “Mr. Duggar’s argument lacks merit, as there is ample evidence he viewed the images of child p0rnography that had been downloaded to his business computer.”
The judge goes on to list the evidence that proves Josh did view the materials, stating that a detective who provided testimony at Josh’s trial had received a CSA video and photos from the IP address associated with Josh’s work computer. The paperwork goes on to discuss the testimony of the government’s forensic expert who explained how thumbnails of the CSAM had been created and left on the computer because the files had, indeed, been viewed.
“Mr. [James] Fottrell’s expert opinion was that the thumbnail images were created because the user “view[ed] those images or open[ed] a folder containing the images.”
The documents go on to state that even Josh’s expert witness, Michele Bush, testified that “the computer’s user actually viewed the downloaded images of child p0rnography.”
“Based on the Court’s discussion of the trial evidence above, there is no merit to
Mr. Duggar’s argument in favor of acquittal. There was significant evidence presented at
trial to convince a reasonable jury that Mr. Duggar was physically present during the offense conduct and that he had the mens rea to commit these crimes. Accordingly, his
request for relief under Rule 29 is DENIED.”
Judge Brooks also struck down Josh’s request for a new trial due to the possibility of it being someone other than Josh who downloaded the CSAM.
“In the end, however, the defense’s promise of an alternative perpetrator came to nothing, as the evidence at trial showed that Mr. Duggar—and only Mr. Duggar—was physically present at the car lot when child p0rnography was being downloaded.”
Judge Brooks then addresses Josh and his team’s suggestion that former Duggar Family friend Caleb Williams (who had done odd jobs around Josh’s car lot in the past) could have been the person who downloaded the CSAM. He reiterates that it’s been proven that Caleb was in Illinois when the CSAM was downloaded at Josh’s Arkansas car lot.
“Mr. Duggar’s second argument in favor of a new trial is that he was constitutionally
deprived of the ability to call Caleb Williams as a necessary witness,” Judge Brooks writes, stating that the defense could have called Caleb but chose not to. He also explains that Josh and his team were informed that they were allowed to point the finger of blame at someone else, provided there was evidence to back it up and it was not just speculating.
“On December 6, 2021, the Court met with counsel in chambers to discuss, among
other things, Mr. Williams’s expected testimony. The Court reiterated its liminal ruling that Mr. Duggar was free to suggest to the jury that someone else might have committed these crimes; however, the evidence needed to meet a certain minimum threshold of reliability and could not be tantamount to wild finger-pointing.”
Prosecutors argued that the only reason Josh and his team wanted to call Caleb to the stand was because Caleb had previously been convicted of a sex offense and they were trying to make the jury believe he could have committed Josh’s crimes.
“According to the Government, the defense team possessed no non-speculative evidence that Mr. Williams was in Arkansas on the dates in question. Instead, the Government argued the only reason Mr. Duggar wanted to call Mr. Williams to the stand was to reveal to the jury the recent sex offense conviction and leave the false impression that he might be a viable alternative perpetrator,” the paperwork states.
The judge then shot down two more of Josh’s arguments for why he deserves a new trial: one regarding a problem they had with the Government’s expert witness’ testimony on geolocation data from Josh’s phone, and another about the prosecutors’ “failure to disclose certain demonstrative exhibits” that were presented by the prosecution expert witness James Fottrell.
“IT IS THEREFORE ORDERED that the Motion for Judgment of Acquittal Under
Rule 29(c), or in the Alternative, Motion for New Trial Under Rule 33 (Doc. 131) is
DENIED,” the Judge wrote.
The only “win” for Josh is that the judge formally dismissed Josh’s conviction for possessing CSAM. Because that is a lesser and included offense to Count 1– receiving CSAM— the judge agreed to dismiss it.
“It is the Court’s intention to vacate the jury’s conviction for the possession offense and formally dismiss Count 2 during the sentencing hearing tomorrow,” Judge Brooks wrote.
Because Josh was convicted of receiving CSAM, though, he must be sentenced to at least five years in prison. As The Ashley previously reported, the maximum sentence that Josh can receive on Wednesday is 20 years.
The Ashley will be providing live updates from the courtroom during Josh’s sentencing on Wednesday!
(Photos: YouTube; Instagram; TLC)