THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ROGER COSSACK, CO-HOST: Twenty-two-year-old Brian Dalton, a previously convicted child pornographer, has been sentenced to seven years in prison for keeping a secret dirty diary.
Today on BURDEN OF PROOF: Are his private pages, filled with fantasies of torture and molestation of young children, a case of privacy, or are they pornography?
Plus, missing in America: Ryan Katcher was last seen early in the morning on November 5th. Now his mother speaks to BURDEN OF PROOF about the continued search for her son. Plus new information in the search for Chandra Levy.
Hello, and welcome to BURDEN OF PROOF.
GRETA VAN SUSTEREN, CO-HOST: Dalton pleaded guilty in an Ohio courtroom to pandering obscenity involving a minor. It could be a landmark case. Dalton is believed to be the first person in the nation to be convicted of such charges when writings are used as evidence rather than actual photographs. Constitutional advocates want Dalton to withdraw his guilty plea and possibility of First Amendment violations.
COSSACK: Joining us today from new York: First Amendment Attorney Floyd Abrams, who has also acted as counsel to CNN on constitutional issues. Here in Washington, Nicole Drose, familyclick spokesperson and Internet safety expert Donna Rice Hughes, along with Katherine Milgram.
But first, we turn to CNN national correspondent Bob Franken for some new developments in the search for Chandra Levy -- Bob.
BOB FRANKEN, CNN CORRESPONDENT: Well, Roger, at this very moment, at a downtown hardware store in Washington, Candy's Hardware, Washington metropolitan police detectives, long with the FBI investigators, are interviewing a man by the name of John Woodfolk. Mr. Woodfolk works, as you can see, in the key-making section of this hardware store. He has said, he has told reporters, and presumably is now telling investigators, that on sometime after April 30th, he saw Chandra Levy when she came into the store to have some keys made.
Now this hardware store is not far from Chandra Levy's apartment. It is directly across the street from the gym where she worked out. He says that it was after April 30th, which up until now has been the last time that investigators had said that they knew of anybody who had seen Chandra Levy. The next day, of course, she was accounted for when she was working on her computer, according to the police, but he says that it was after April 30th he actually saw her some time after that.
VAN SUSTEREN: Bob, I'll tell you what is sort of bizarre...
FRANKEN: I think I just wanted to hear a little bit from him, if you don't mind, when he talks about this.
VAN SUSTEREN: Go ahead.
(BEGIN VIDEO CLIP)
JOHN WOODFOLK, KEY SHOP MANAGER: It was during that week, because actually when I did see in the paper on it, they say she was missing on the 30th, and I didn't see her on the 30th, but it had to be after that, during that week of May.
(END VIDEO CLIP)
FRANKEN: Now it is unclear whether in fact he is accurate on the dates, April 30th was a Monday. He offered no real proof that it had been after the 30th, and I should also point out if it was the next morning, for instance, May 1st, that could have been before she went back to her apartment to go on her computer.
He also said he thought that she had charged the amount for the keys, although there's no financial records at the store or in investigators searches for financial records. That would prove that to be the case. So in any case, investigators are interviewing him now to see if in fact his account is accurate and that might add in the search for Chandra Levy -- Greta.
VAN SUSTEREN: Bob, does he have any explanation why he's waited about three months? It's not as though this hasn't been on the news, everyone madly searching for this young woman.
FRANKEN: He said he believed until recently that he didn't really have anything to contribute to the information, even though he says that it had become clear to him that police investigators said that the last time anyone had seen Chandra Levy was April 30th. I have point out, again, that if he is incorrect about this, and that it was on the 30th, there is the possibility that Levy left the gym where she had gone to cancel her membership, and for whatever reason, walked across the street. He also he believes she was making apartment keys. We have no explanation for that at this time.
COSSACK: All right, our thanks to CNN national correspondent Bob Frank.
Let's go back over to Donna Rice, and get back to the issue we have today, Brian Dalton, as we talked about, Brian, who knows is what in his mind, but meanwhile wrote a textual essays, if you will, describing fantasies he may have had which are about children, child pornography, he entered a plea of guilty, and now there's two issues. One, is it pornography when there's no pictures? And two, is this the thought police in action? There was never any evidence he would distribute this, but only keep it in his house.
DONNA RICE HUGHES, INTERNET CHILD SAFETY EXPERT: Well, first of all, federal law deals with child pornography as a felony, whether or not it is possessed, produced or distributed images of children. Now in Ohio law, as I understand it -- and again, I'm not an attorney.
VAN SUSTEREN: You know more about this than virtually than anybody else, so go ahead.
HUGHES: The Ohio child pornography laws clearly material which can include images as well as text, so he was convicted under child pornography laws in the state of Ohio, so they are more restrictive, however, than federal law.
VAN SUSTEREN: Floyd, that's great that Ohio law has its view of what's constitutional, what's not, but ultimately, it's the Constitution that governs.
Is this a constitutional statute, do you think, where text can be used as basic pornography rather than photos?
FLOYD ABRAMS, FIRST AMENDMENT ATTORNEY: Well, that's a close case, Greta. The Supreme Court is going to decide a related issue in the fall about whether it can be child pornography under a federal statute, where you really don't have real pictures, but only sort of made up, put together, visualized pictures on the Internet.
VAN SUSTEREN: Floyd, isn't the violation or sort of the reasoning behind these pornography statutes is because you abuse a child when you were taking the pictures? So with the text, I'm not sure how you have that.
ABRAMS: Yes, that's the reason that the courts have given so far, is that child pornography by its nature harms any child who's been photographed. Fair enough. The question then becomes, well, suppose you don't have a photograph, suppose you have fictional writing, can that be child pornography? It can be obscenity. I mean, we do have a body of law of obscenity that applies to written works. But the law cracks down much harder on child porn, and that question; that question is whether it can crack down that much harder when there's been no real child at all.
COSSACK: Let's call in, joining us by telephone is Bruce Taylor. He's a former Ohio prosecutor and the president of the Law Center for Children and Family.
Bruce, one of the things that I think that's distressing about this case is that you have this man who wrote this awful material, but there's no evidence whatsoever that he was going to distribute this material and do anything other than keep it for his own secret fantasy. The notion that the government can come in and look at your writings, writings that are personal to you, horrible as they may be, and are never to be distributed. I find that a little distressing.
BRUCE TAYLOR, PRES. OF THE NATL. LAW CENTER FOR CHILDREN: Well, in Ohio legislature, followed a 1990 ruling of the Supreme Court that kind of changed the rules a little. In 1982, they said we could prohibit child pornography if it was a real picture of a kid, because of the trauma to the children. In 1990, they said you could prohibit also the possession of child pornography, not only because of the crime scene photo of yesterday's abuse, but because child pornography has become a criminal tool for tomorrow's abuse because it incites pedophiles, and they show it to kids and it seduces kids. Ohio's law doesn't prohibit him from having his fantasies. It prohibited him from them down and creating a physical form of child pornography that will then pose a threat to kids.
VAN SUSTEREN: But here's the problem, is it the pornography is typically thought of as an image, a photo, and a possession of pornography, they said, is the problem, but it may not even be pornography in that it is text, as distasteful as it is. It may be obscene, but not pornography. Am I wrong on that?
TAYLOR: A little bit. Ohio combined, it has to be obscene child pornography, so if he distributed this to someone or showed it, then it would have been illegal under the obscenity law. The reason it's a crime to even create it under the child porn law is because this material has a life of its own.
We don't know that it would have never have gotten out. It certainly got into the hands of the probation officer pretty easy, and that's serious.
COSSACK: The probation officer had an absolute right to go into his house and look through his belongings because he was on probation. I wouldn't have had that right, or his neighbor wouldn't have had that right -- no one else would have had that right.
VAN SUSTEREN: But there's another issue, too, and let me go back to Floyd on this. Floyd, the fact he might have didn't something with it in the future, would that ever be a reason to sort of justify this. I mean, he had it in his house, distasteful, but it's text; it's not photo -- Floyd.
ABRAMS: I wouldn't think so, Greta. I think the fact there's a possibility that he might have let someone else see it, I don't think can carry the day constitutionally. I mean, seems to me what we're talking about here is sort of thought crime. We know, or we think we know, that it couldn't be criminal just to have awful thoughts, child pornography-like thoughts. The question is, how different is this from that, when the man writes it down, in a private diary, he doesn't sell it, doesn't try to make it available anyone else. It is simply his thoughts reflected on paper about a fantasy, and that's why I think on a constitutional matter applying the Ohio law in this way raises very real, very grave constitutional issues, and I don't think it can stand up.
COSSACK: Donna, your group is active obviously in protecting children and child pornography, this issue, I'm sure you see the problems with.
HUGHES: I did.
COSSACK: How does your group feels in terms coming down on the side of a law saying text and text alone can violate the law as opposed to images?
HUGHES: Well, again, I think the difference here is the distinction that the Ohio law makes, and under Ohio law, it does include the possession of text that is child pornographic.
COSSACK: How does your group feels about that in terms of text?
HUGHES: What do you mean by feel?
VAN SUSTEREN: What do they think about it?
COSSACK: A law you want to endorse.
HUGHES: I think we are seeing child pornography laws involved, and I think that's a good thing. I mean, before this Child Pornography Prevention Act, which goes before the Supreme Court this fall, and Floyd Abrams alluded to this, this deals with morphed child pornography, and I think where we're evolving here is that initially child pornography law was treated separately with respect to obscenity law, because their was an actual child abused. Now that has evolved to include not just an actual child, but a morphed computer-generated child, because Congress recognized it has the same impact on the viewer, on the user, the same with text.
VAN SUSTEREN: Let me just say one thing, though. The Constitution, whether we like it or not, gives people a right to be a creep.
HUGHES: That's right.
VAN SUSTEREN: And the question is whether or not it really does, whether it can stand that very strong First Amendment. And my guess is, if he withdraw his plea, if they can fight this on constitutional ground, my guess is, this man, distasteful as he is to me personally, he'd win.
COSSACK: I'm not sure the Supreme Court has ever held that mere textual presentation standing alone...
VAN SUSTEREN: That's what I said, sitting in his home.
COSSACK: Even for children.
We've got to take a break. When we come back, missing in America: college student Ryan Katcher went out with friends for the evening, was dropped off at home, but was never seen again. We'll talk to his mother when we return. Stay with us.
(COMMERCIAL BREAK) COSSACK: Nineteen-year-old Ryan Katcher was last seen at 2:00 a.m. on November 5th, 2000. A friend dropped him at his home in Oakwood, Illinois after a party. He has not been seen or heard from since.
Joining us from Indianapolis, Indiana is Ryan's mother, Linda Katcher, and also joining us by phone is Captain Gary Miller, chief investigator on this case. Linda, let's talk a little bit about your son. Tell us the last time you saw him and tell us about him, what was he like.
LINDA KATCHER, MOTHER OF RYAN KATCHER: Well, Ryan was a good kid, sophomore at the University of Illinois. He was on the dean's list there. We don't live far from the university, which is in Champagne, Illinois, and he came home from the weekend basically to raid the refrigerator and do his wash. He went out with friends on this night, and went to a party, and he hasn't been seen since.
VAN SUSTEREN: Well, Linda, he was dropped off by a friend at your home, is that right?
KATCHER: That's what they said.
VAN SUSTEREN: Is there any question in your mind whether that even happened.
KATCHER: Well, there's always a question. I mean, I doubt myself and everyone when you can't find him. I was there. I didn't hear anything. This boy has not reason to lie to us. I mean, I feel he was just put in a bad situation. He was the one that brought Ryan home from the party.
VAN SUSTEREN: And did Ryan have a car at home? And the car was missing in the morning?
KATCHER: Yes it was. When I went to work the next day, the car was not there.
VAN SUSTEREN: So that at least supports that he came home, got dropped off, or at least, I mean, we can assume.
KATCHER: Right, somehow the truck is gone also.
COSSACK: And have there been any clues to his whereabouts, Linda?
KATCHER: No, in the last nine months, there have been -- it's nearing nine months -- there's been no -- there have been leads. Many people have called in that they thought they've seen someone that looked like Ryan or thought that they've seen some truck that looked like his truck/ But none of the leads have panned out to be anything. And in nine months, we've have no more knowledge he left from Oakwood, and that's all we know.
COSSACK: All right, joining us by telephone is captain Gary Miller. Captain Miller, tell us about the search for this young man. What have the police been doing?
CPT. GARY MILLER, VERMILION CO. SHERIFF'S DEPT.: Well, initially, we had a ground search and an air search. The ground search was conducted by trained volunteers of the local emergency management agency. We had what I felt was a good ground search, we covered the general area where he lives, which is a rural area, on foot. We also, we had two aircraft in the air that covered the area looking for the vehicle or any signs of it. That turned up nothing. Since then, we have -- Ryan was at a party, we interviewed all of the kids that were at that party, or young adults that were at that party, people who last seen him. We have used the polygraph as an investigative tool.
At this point although we can rule out nothing, we have no evidence of any fowl play.
VAN SUSTEREN: Linda, I assume you've gone over this a million times in your mind as to what could have happened. What is the explanation in your mind that as to what might have happened?
KATCHER: I have no explanation, and that's what is so difficult. We were a very close family. So for something to happen like this, I have never been away from Ryan for nine days, let alone nine months, so I have thought about it. I'm also an emergency nurse, so you know I've seen a lot, and I trained my kids to be street smart, I thought. But even though we did all the things we should be as parents -- I don't want to say I lacked somewhere -- but for some reason, we still can't find him.
VAN SUSTEREN: What about the neighborhood? Is it possible he came home to go to 7-Eleven to get something? I mean, it is so bizarre that the truck is missing, he gets dropped off.
KATCHER: He live out in the middle of a corn field, but we actually live close to two truck stops, a major intersection. As you can see, today I'm in Indianapolis, Indiana. It's a straight shot from our home over to here, and from Illinois, where only 14 miles to the Indiana border. So we're kind of like in the middle of interstates, and truck stops and corn fields.
VAN SUSTEREN: Of course we're hopeful that from this show that somebody who might have seen something might call.
KATCHER: I really thank you very much, very much.
COSSACK: Obviously, if anyone does knows anything, they will get in touch with captain Gary Miller or Ryan's mom.
VAN SUSTEREN: Ryan's mom, that's right. That's all the time we have for today. Thanks to our guests, and thank you for watching.
COSSACK: Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.
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