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Sentencing/Post Conviction

Federal Judge’s Theories About a Child Porn Gene Get Him Tossed from Case

Posted Jan 31, 2011 8:42 AM CDT
By Debra Cassens Weiss

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U.S. District Judge Gary Sharpe has a theory about people who view child pornography.

About 50 years from now, scientists will discover that child porn consumption is caused by “a gene you were born with,” Sharpe said as he sentenced a defendant to 6½ years in prison in December 2009. "And it's not a gene you can get rid of."

Now a New York-based federal appeals court has ruled that Sharpe’s theories justify resentencing for the defendant, Gary Cossey, according to the New York Times and the Associated Press. “It would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics,” the 2nd U.S. Circuit Court of Appeals said in its opinion (PDF).

The court said the sentence should be decided by a new judge.

Sharpe had rejected two separate psychological examinations that had found Cossey had a low to moderate risk of committing the crime again. Sharpe said those opinions are “virtually worthless,” partly because he did not “have a lot of faith in that profession in the first place” and psychiatrists are “all over the board on those issues.” The other reason was his stated belief that “you are what you’re born with.”

Prosecutors had argued that Cossey was at risk of recidivism because had had continued to view child porn after an initial investigation by the FBI. The appeals court said a judge could consider that evidence at sentencing, but in this case Sharpe had based his decision on “an unsupported theory of genetics.”

Sharpe, an appointee of President George W. Bush, did not comment when the Times contacted his chambers.

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