An attorney for Josh Duggar asked a federal appeals court panel on Thursday to reverse the former reality TV star's conviction for downloading child pornography, saying investigators violated his rights by seizing the phone he was using to try to call his lawyer during the search that found the images.
Attorneys for Duggar and the U.S. Justice Department appeared before a three-judge panel of the 8th U.S. Circuit Court of Appeals for a hearing. The panel did not indicate when they planned to rule.
Duggar, 34, was arrested in April 2021 after a Little Rock police detective found child porn files were being shared by a computer traced to Duggar. Investigators testified that images depicting the sexual abuse of children, including toddlers, were downloaded in 2019 onto a computer at a car dealership Duggar owned. He was convicted in 2021 and is serving a 12 1/2-year prison sentence.
Justin Gelfand, Duggar's attorney, said federal agents violated Duggar's rights when they executed a search warrant of the car dealership in 2019, looking for his computers and phone. Duggar's attorneys have argued statements he made to agents during the search should have been suppressed. Prosecutors said Duggar asked the agents if someone had been downloading child pornography and that he declined to say whether he had looked at child pornography online, comments that were later used as evidence in the trial.
“What federal agents did is they physically took the phone out of his hand and from that point forward, deprived him of the ability to communicate with his legal counsel, as was his constitutional right,' Gelfand said.
But Joshua Handell, an attorney with the Justice Department, said Duggar was told repeatedly he was free to leave the scene and was told he did not have to talk to the agents without an attorney present. During the search, Duggar was with two companions and there was at least one other cell phone that wasn’t seized.
“All of that shows he had an option to speak to a lawyer even though obviously the officers had appropriately seized the phone at the outset of their search," Handell said.
Gelfand also argued Duggar should have been able to present an alternative suspect during the trial: a former employee of the dealership who was a convicted sex offender and had used the same computer.
Handell said the former employee wasn't even in the same state on the dates the images were downloaded.
A monitoring program that sent reports to Duggar’s wife about his activity had been installed on the computer, but the images and videos were downloaded after software had been installed that allowed him to download them without being monitored, prosecutors said.
TLC canceled “19 Kids and Counting” in 2015 following allegations that Duggar had molested four of his sisters and a babysitter years earlier. Authorities began investigating the abuse in 2006 after receiving a tip from a family friend but concluded that the statute of limitations on any possible charges had expired.
Duggar’s parents said after the allegations resurfaced in 2015 that he had confessed to the fondling and apologized privately. Duggar then apologized publicly for unspecified behavior and resigned as a lobbyist for the Family Research Council, a conservative Christian group. Months later, he also publicly apologized for cheating on his wife and a pornography addiction, for which he then sought treatment.
