Josh Duggar appears in a post-conviction mugshot taken by the Washington County, Arkansas jail on Dec. 9, 2021.
Josh Duggar, the former “19 Kids and Counting” star and conservative activist who went on to be sentenced to federal prison for child pornography crimes, was denied a new trial on Monday by a three-judge panel on the U.S. Court o f Appeals for the Eighth Circuit.
Chief Judge Lavenski Smith, a George W. Bush appointee, along with U.S. Circuit Judges David Stras and Jonathan Kobes, both Donald Trump appointees, rejected Duggar’s arguments as to what was and wasn’t allowed into evidence at trial in Arkansas; it was Stras who penned the 11-page opinion.
At the outset, the judge made sure to note how Duggar initially reacted to a visit from feds with a warrant:
Duggar blurted out, “[w]hat is this about? Has somebody been downloading child pornography?” He then let it slip that he was “familiar with” file-sharing software and had installed it on “all of” his electronic devices, including “the computer in the office.”
The agents showed up at Duggar’s Arkansas used-car dealership, where he downloaded “hundreds of child-pornography images.” Prosecutors said those images depicted the sexual abuse of victims “as young as toddlers.”
The initial statement that Duggar “blurted out” without his lawyer present was allowed into trial evidence, despite Duggar’s motion to suppress. In an effort to combat that key loss, Duggar then “tried to point the finger elsewhere” at a former employee — “Looking to convince the jury that it faced “a classic, old-fashioned ‘whodunit,”” Stras wrote. Duggar wanted to present an “alternative-perpetrator” theory to the jury to create reasonable doubt by pointing to that former employee’s status as a convicted sex offender.
But Duggar didn’t call that man to the stand “because the district court ruled that any mention of the employee’s prior conviction was off-limits,” Stras wrote. The appellate court did not second guess that ruling and explained why:
The district court, for its part, tried to strike a balance too. It recognized that Duggar should have an opportunity “to create reasonable doubt” by “call[ing]” the former employee to testify and asking whether he was “present on the car lot” when the downloads occurred. But he could not impeach him with a prior sex crime or introduce “speculative” testimony. See Fed. R. Evid. 609(a) (explaining that a prior felony conviction “must be admitted, subject to Rule 403” to attack “a witness’s character for truthfulness”); United States v. Thibeaux, 784 F.3d 1221, 1226 (8th Cir. 2015). The reason, according to the court, was to prevent confusion: the jury might think he did it because he was a sex offender, even though the conviction was only potentially admissible as impeachment evidence. See Fed. R. Evid. 403 (allowing courts to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . confusing the issues”); see also Paul F. Rothstein, Federal Rules of Evidence 508–09 (3d ed. 2019) (explaining that “the similarity of the past crime” is “a factor militating against admission . . . because of the likelihood a juror might impermissibly use the conduct to suggest guilt rather than merely incredibility”).
In short, the appellate court ruled Duggar’s Fifth and Sixth Amendment rights to “present a complete defense” were not violated by the trial court’s ruling.
“The right to present a complete defense, in other words, does not trump a district court’s discretion to keep out confusing or misleading evidence, even if it would be helpful to the defense,” Stras wrote.
Duggar’s second argument didn’t fare any better. He asserted that the incriminating statements he made at the car dealership when feds arrived with a warrant should not have been allowed into evidence.
“He wanted them suppressed on the ground that the agents violated his right to counsel, which he tried to invoke by mentioning a lawyer and then attempting to call one,” Stras recounted, noting that before Duggar could make that call to his attorney the phone was seized as evidence.
In summary, Duggar’s argument failed because he was not actually in custody at the time he uttered “Has somebody been downloading child pornography?”
“The first factor, which is ‘[t]he most obvious and effective means of demonstrating that a suspect has not been ‘taken into custody,’” weighs heavily in the government’s favor,” Stras wrote. “When the agents arrived, they told Duggar that they had ‘a federal search warrant, not an arrest warrant, and [that] he was free to leave if he chose to do so.’ Later, when the agents invited Duggar to speak with them, they reiterated that he ‘ha[d] the right to stop the questioning at any time.’”
“The agents, in other words, ‘clearly inform[ed] [Duggar] that [he] [was] free to leave or decline questioning,’” the judge added.
The circuit judge also noted that the crossed-out portion of the paperwork Duggar signed showed him acknowledging that he was not in custody.
“Finally, Duggar was not ‘arrest[ed] at the termination of the questioning,’” Stras concluded. “To the contrary, he ended the interview on his own and then left the dealership—hardly an option available to someone in custody.”
As of Tuesday morning, Duggar remains incarcerated in Texas at Seagoville FCI. He’s scheduled to be released on Oct. 2, 2032, federal prison records show.
Read the opinion here.
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