On the day a jury trial was supposed to start in the case of former Whispering Palms School principal Thomas Weindl, the U.S. government moved to dismiss two of the four charges filed against him.
The jury selection did not push through yesterday after U.S. District Court for the NMI chief judge Ramona V. Manglona heard several motions filed by both parties.
Manglona directed prospective jurors to return today, Tuesday, at 2pm.
Assistant U.S. Attorney Rami S. Badawy yesterday moved to dismiss, without prejudice, counts 1 and 2 of the indictment.
Count 1 charged Weindl with receipt of child pornography, while count 2 charged him with access with intent to view child pornography.
The remaining two other counts contained the same charges.
Badawy said the U.S. government filed the motion to dismiss because, after a review of its evidence and some recent filings, it has concluded that it is unlikely to prove its case on counts 1 and 2.
“The United States would submit that his motivation demonstrates a good-faith concern with fairness and conservation of judicial and prosecutorial resources,” Badawy said.
Badawy asserted that Weindl cannot be prejudiced by the dismissal of the two counts.
“Should defendant be re-indicted for the same offenses, he will have ample opportunity to assert a claim of prejudice arising from such dismissal. Until such time, though, a claim of prejudice is simply not ripe for determination,” the prosecutor said.
In support of Weindl's motion filed on Sunday, his lawyer, David Banes, filed a declaration by Ron Smith, a computer programmer and website designer.
Smith stated that, at Wendl's request, he went to the FBI laboratory and reviewed and analyzed the E-blaster reports that are the evidence in this case. E-blaster is a computer and Internet monitoring software program.
Smith concluded that, based on his analysis, the vast majority of the websites that were accessed by clicking on the links in those reports led to aggregator sites or user content sites.
“On such sites the content may change at any time. Therefore any screen shot of such websites even one day later from when the reports were generated may have a different content than when the sites were originally accessed,” he pointed out.
The prosecution alleged that, as shown in the E-blaster reports, Weindl searched for and accessed almost 200 websites containing images of child pornography. The prosecution said Weindl also searched for images depicting the violent sexual abuse of children.
In court papers, Banes said a doctor will testify to a reasonable degree of medical certainty that many of the images in the government's exhibits are not of minors.
Banes also asserted that images on many of the government's exhibits are not child pornography, while other exhibits do not contain images at all.