By Benjamin I. Kaminar
First Assistant County & District Attorney in Lamar County
Lamar County, home of the second-largest Paris in the world, is a rural county about an hour and a half northeast of Dallas on the Oklahoma border. Our office handles all the usual crimes you might expect, ranging from drugs and thefts to child sexual abuse and the occasional murder. However, one thing that we see relatively little of is child pornography. When we do have a child porn case, it either reaches a plea agreement or our friendly neighborhood Assistant U.S. Attorney takes it off our hands.
Sammy Evans, a 70-year-old child porn distributor who was tried to a jury by our office, was a rarity.
The investigation
Evans’s case actually came to us by way of Investigator Lee McMillian of the Collin County Sheriff’s Office. Investigator McMillian holds a Ph.D. in computer science and works primarily with internet crimes against children. In addition, he was an amazing resource for helping educate us and, later on, the jury about the technical side of child porn.
McMillian has computer servers that are constantly searching online for Texas IP addresses that share or download child porn files. With the size of the state and the volume of internet activity involved, McMillian focuses on the worst of the worst: graphic, violent abuse. One IP address with a lot of activity shared several videos with McMillian, including one that depicted the rape of a 7- or 8-year-old girl. McMillian was able to geolocate the IP address to the Paris area, but not to a specific individual or location.
At that point, McMillian contacted Special Agent Chuck Cannon, who works in the Department of Public Safety’s CID Organized Crime Section and who is based out of Mount Pleasant. Special Agent Cannon’s area of responsibility includes Lamar County, so he assumed lead on the case. Cannon was able to subpoena internet service providers to find the physical address associated with the IP address that McMillian had identified, which led him to a house in Reno, a small town adjacent to Paris. While law enforcement now had a location for the suspect device, officers still didn’t know who the user might be, so they began conducting surveillance of the house. Over the next several weeks, they eventually identified Sammy Evans as the only person at the residence during all the times there was child pornography-related activity.
Finally, in March 2022, Cannon obtained a search warrant for the Reno house to seize devices that could store child pornography. Cannon, McMillian, and other DPS special agents served the warrant the morning of March 29; Cannon and McMillian made contact with Evans and interviewed him while the other agents searched. During the search, they found two laptops and a number of external storage devices in his bedroom. Throughout the interview, Evans denied knowing anything about child pornography, even when McMillian opened his laptop to perform forensic triage and found child porn videos in the “Recent Downloads” folder, including the same videos previously shared with McMillian.
Charging and pre-trial
After Evans was arrested, his devices were sent to the DPS Computer Information Technology and Electronic Crime (CITEC) Unit for forensic analysis, and the case was filed with our office. When he was arrested, Evans was initially charged with a total of eight counts, two for possession with intent to promote child pornography (for the two files transferred to McMillian) and six more for possession of child pornography (for the files in the “Recent Downloads” folder). Evans’s court-appointed attorney quickly contacted me to request discovery and inquire about a pre-indictment plea offer. During our early conversations, I explained that due to the extremely violent nature of the videos he was sharing, I was offering a partially stacked sentence of 50 years, where we would stack the two promotion counts and one possession count, then run the remaining ones concurrently. I was also upfront with him that we were awaiting the forensic analysis and intended to file additional counts should more child porn be discovered. Evans rejected pleading to anything other than possibly probation, which was a non-starter. In June, Evans was indicted on those eight counts.
Before Evans’s arraignment, we received the report from CITEC. Six of the seven devices from Evans’s bedroom had child porn on them, totaling more than 300 photos and videos. I quickly adjusted my earlier plan to add a count for each additional file and instead stopped at a total of 30 counts, representing about 10 percent of his material. We were able to re-present the case to a grand jury and obtained a superseding indictment a few days before Evans’s arraignment hearing in August. Meanwhile, Evans wrote the judge a letter demanding a speedy trial and asking to fire his court-appointed attorney, who he claimed wouldn’t show him the evidence. The defense attorney saw his opportunity to avoid having to look at child porn and promptly filed a motion to withdraw. At arraignment, the judge granted both requests and appointed a new attorney before setting the case for trial in November.
Unfortunately, I didn’t have the option of withdrawing from the case and I refused to simply dump it on another prosecutor, so I was stuck with the unenviable task of reviewing and preparing the evidence. CITEC had provided us an encrypted hard drive containing the device extractions, and I expected reviewing those would be difficult, even when compared to cases I’d handled in the past. After over a decade as a prosecutor, I had begun seeing a therapist to help deal with the accumulated secondary trauma, so I decided to set aside time to review the extractions on a morning immediately before my next scheduled therapy session; that way, we would be able to start working through the latest stressor without delay.
That morning, once I was ready, I retrieved the hard drive, turned my sound off, and plugged it into my computer. There was a separate extraction report for each device, so I started working up a list by device of which files we would present at trial. I didn’t have much of any reaction while going through the material; I very calmly typed out file names such as “12yo & 8yo pedo” and “5 Y0 Peggy Rape” while flagging particular files as evidence. Once finished, I returned the hard drive to storage and went out to my truck to head to my therapy session. It wasn’t until I sat down in the waiting room that what I had just watched hit me, first as a wave of nausea, then a full-blown anxiety attack. The material had turned out to be far more triggering than I had anticipated and would become the focus of many sessions over the next few months.
Computer science for dummies prosecutors
As we prepared for trial, we grappled with how to present the case to the jury. We felt that we would lose jurors in the weeds if we got too technical with testimony about file-sharing networks, but we knew we would have to be able to explain how we knew that particular files came from Evans. Investigator McMillian was an amazing asset here, and over the course of many phone calls and meetings, he taught us about hashing and file-sharing, including eMule, the program Evans used.
A hash is essentially a digital fingerprint. It is a mathematical function that takes an input file and produces an output value, which is unique to that particular input. As long as there are no changes in the input, the hash will be identical, but if anything is altered, a completely new hash results. For example, when I finished drafting this article, the .docx file could be hashed and would produce a hash value. I could copy the file, email it, or save it on another device, and it would still have the same hash value. However, when Sarah Halverson, our intrepid editor, opens it and fixes all my typos and bad puns, it will have a different hash value.
File sharing was a bit more complicated. Fortunately, McMillian got us through that with the aid of some Legos. When a file is shared over eMule or BitTorrent, users don’t share a full, continuous file. Instead, it is broken up into pieces, which can be obtained in any order and from multiple sources. The pieces are then reassembled into a complete file on the downloader’s computer. To demonstrate, McMillian brought a pair of large Lego boards with identical rows of different colored bricks across them. As he described the process, he would randomly take one brick off the first board and snap it onto the matching brick on the second board, then repeat the process until all the bricks had been moved. That visual demonstration helped us quickly grasp how eMule worked and later proved to be a valuable demonstrative for the jury.
The final piece of preparation was readying the visual material for the jury. Preparing it for trial also meant preparing myself, which I worked on during therapy sessions. Working with it didn’t get any less stressful, but knowing what to expect, I was able to employ some strategies I had developed with my therapist. I also made a point to plan little things to look forward to when I knew I would have to work with the files, such as dinner out or watching the latest episode of “Andor.”[1] Having something “normal” to look forward to helped when dealing with the decidedly abnormal. Another strategy we developed was to focus on the goal of convicting Evans and securing a maximum sentence, rather than focusing on the content of the material. Each of the strategies we developed had a common element of not becoming mentally “stuck” on the child pornography.
Much like a forensic interview of a child, Code of Criminal Procedure Art. 39.15 requires that child pornography remain in the State’s custody but prosecutors are to provide reasonable access to the defense. In this case, the defense scheduled an appointment to meet with me in our office, and we reviewed the files that I intended to present off each device. I had already provided the list of files I planned to use, so we limited our review to just those videos. With each video file, we reviewed a few seconds until the defense let me know they were ready for the next one, enough for them to be aware of the contents.
Jury selection
Going into jury selection, we knew that this voir dire would be different from many others. We normally focus on educating the jury about the law and looking for biases or panel members who might not be receptive to our witnesses. In a child sexual abuse case, we often discuss delayed outcries and why the State might not have physical evidence. In an aggravated assault case, we talk about deadly weapons and how everything can be a deadly weapon. With this case, though, we thought there were two areas we would need to focus on. First, we would have to make sure that we didn’t let people strongly disliking child porn turn into an inability to be fair. Second, we would have to ensure they could consider the full range of punishment.
With these in mind, I spent less time covering the elements of the offense than I would in other cases. We talked a little bit about some things that people generally understand intuitively, such as seeing an image of a young child and being able to recognize he or she is under 18 based on physical maturation. We also talked about how not every image of a naked child is pornography with some examples. (Photo of baby’s first bath? Not child porn. Photo of 6-year-old posing in lingerie and masturbating? Child porn.) We spent much more time talking about the burden of proof and not letting a dislike of child porn substitute for the State meeting its burden. We discussed how having a strong dislike of child porn is normal, that it is OK for a juror to feel that way, but jurors still needed to make us prove possession, venue, and identity. We were able to get all the jurors to agree that they would indeed hold us to our burden.
For punishment, I started by contrasting different images that would fall under the child porn statute. For that, I pointed out that an explicit photo of a 15-year-old that an adult relative gets ahold of and a video of a 3-year-old being raped both qualify as child porn. The panel agreed, however, that they didn’t necessarily need to be treated the same. That example seemed to make jurors much more receptive to being able to consider the low end of the punishment range when I presented the actual punishment ranges involved.
The defense voir dire was relatively short and focused on reasonable doubt and the State’s burden. It mostly covered ground I’d already been over and didn’t last terribly long. At the end, we lost only one juror for cause due to personal history. We had made it through the first gauntlet of the trial.
Two and a half minutes
Evidence started the next morning. For opening statement, I laid out the investigation and what had been found in Evans’s room. I wanted to set jurors’ expectations and prepare them to eventually have to view the material on the large courtroom television. “Watching the evidence in this case will be difficult,” I told them, “but I expect making a decision won’t be.” The defense opening, again, discussed the State’s burden of proof and asked the jury to keep an open mind.
With that, we called Investigator McMillian as our first witness. Once I walked him through his qualifications and had him admitted as an expert, I let him talk without drawing any objections to narrative. He spent a while simply educating the jury about all the things we had prepared before (Legos included), then we started covering the specifics of this case. At the end of his direct examination, we were granted permission to publish one of the two videos that Evans had shared with McMillian online.
During pre-trial conferences, we had planned to play one video in full and then play just a few seconds of each other one to prove what they were. I felt that we needed to impress upon the jury that there could be no mistake about what Evans was promoting, and that was sexual violence against children. The video we selected was a little under four minutes long. It was also the first time I’d had the sound on while working with it.
We made it through two and a half minutes.
When we stopped the playback, almost no one in the courtroom was looking at the screen anymore. The only exception was Evans. Although he couldn’t see the screen from his seat, he was leaning around his attorney so he could watch the video. Several of the jurors stared Evans down, and many of them stopped taking notes for the rest of the trial.
We played a few seconds of the second video that Evans had shared, then passed McMillian. After a short cross, we called Special Agent Cannon to walk the jury through the search and seizure, then called Special Agent Aric Hagy from CITEC to testify about the forensic analysis. Special Agent Hagy explained that part of his analysis was not only to recover imagery but also to look for signs of user attribution or things that identified who used the device. He testified about recovering Evans’s credit card information, his email addresses, and a Skype account in his name from the two seized laptops while not finding anything associated with other individuals. He also explained some of the acronyms in Evans’s Google searches, such as “pthc,” which stands for “pre-teen hardcore.” Finally, we walked through a few seconds of each of the 28 remaining files, just enough to prove that each was child porn and support a conviction on those counts.
To everyone’s surprise, Evans took the stand against his attorney’s advice after the State rested. (His attorney also disavowed sponsorship of the testimony outside the jury’s presence.) Evans testified that while he was indeed downloading child porn, he was doing it so that he could identify the adults in the videos and post their identities to the dark web. He was never able to quite explain why he was sharing the pornography or why he had to watch “10yo preteen lesbians” to identify adults as part of his internet vigilante scheme. One would think after eight months awaiting trial, he could have come up with a better story.
The jury charge
When it came to the jury charge, one thing we wanted to avoid was reading 30 repetitive application paragraphs, which we thought would lose the jury. Fortunately, an unpublished opinion from the Fourth Court of Appeals helped us. Solis v. State[2] addressed a jury charge that submitted multiple counts in an indictment in an “and/or” fashion, but it instructed the jury that they had to consider “separately and distinctly each count as presented … individually before proceeding to the next count …” and provided separate verdict forms for each count. We gave the judge and defense a draft charge in that format along with the Solis opinion. When the defense announced they had no objection to the charge, the judge approved the disjunctive application paragraph and printed the charge.
Closing arguments were straightforward. In the first part of closing, we discussed a few of the definitions and reserved the bulk of our time for rebuttal. The defense, no longer able to effectively contest the allegations after Evans volunteered that he was, in fact, downloading tons of child porn, instead addressed the State’s burden of proof. Our rebuttal walked through the evidence and pointed out that whether or not jurors believed his justification, Evans had confessed to the crimes on the witness stand. Twenty minutes later, the jury returned verdicts of guilty on every count.
Punishment
We had no additional evidence for punishment other than an old probation judgment for injury to a child. However, knowing the general mindset of our citizens, I thought they would place significant weight on the evidence from guilt–innocence when setting punishment. We offered the judgment, re-urged the evidence from earlier, including the 300-plus files that had not been published, and rested. Evans thought better of testifying this time around and the defense rested, too. The punishment charge was again in the disjunctive with 30 separate verdict forms.
The defense’s closing asked for the jury to set something reasonable and consider Evans’s age and health; Evans was 70 at the time of trial, but no evidence had been presented of any major health issues. We took the jury back to McMillian’s testimony earlier that day, when he had described the numerical classifications for child porn as a 1–9 scale, with 8 and 9 being violent abuse, including mutilation or torture. Evans had drawn McMillian’s attention for downloading and sharing nothing but 8s and 9s. I reminded the jury of what they had heard from that video and asked if they were willing to do everything in their power to combat child pornography.
After 15 minutes, the jury returned maximum verdicts of 20 years on the two possession with intent to promote counts and 10 years on the 28 possession counts. To underscore their condemnation, they fined him $10,000 on all 30 counts. However, there was one last shoe to drop for Sammy Evans. After receiving the punishment verdicts, the judge ordered them all stacked: 320 years in the Texas Department of Criminal Justice and $300,000 in fines.
Aftermath
The judge released the jurors before he pronounced sentence, but three of them remained to watch from the balcony. Afterward, the investigators and I thanked each one as they came back downstairs. When the foreperson remarked that she didn’t know how we could stand that part of our jobs, McMillian told her that protecting children from abuse made the work worth it, unknowingly echoing one of my therapy strategies.
I was done with the imagery, but it wasn’t quite done with me. A couple of days after the trial, I was driving to work and out of nowhere found myself seeing and hearing the video again. That wasn’t the only time I would hear the girl’s pleas of “take it out, it hurts!” playing on a loop in my head. When discussing that in therapy, I realized I had treated playing the video at trial as a one-time event and thought I wouldn’t have to employ my coping strategies once it was over. Instead, I learned that processing and dealing with it would be an ongoing task, though one that has become easier with time and happier activities. Baking bread with my daughter, trying out new varenyky[3] fillings, and visiting family for the holidays all helped re-establish a sense of normalcy and gave me something to look forward to each time I found myself recalling the case.
Final thoughts
In some ways, this was a strange case. Even without the defendant’s bizarre story, the State’s case was extremely strong—yet it was far more stressful than any other major case I’ve tried. Our jurors can feel proud of their work, though; Evans’s conviction won’t singlehandedly end child exploitation, but every time we remove someone from that marketplace, we shrink it a little bit. One fewer Sammy Evans on the internet makes Lamar County and all of Texas a better place.
Endnotes
[1] Easily the best Star Wars show to hit television—10/10, would recommend.
[2] 2012 Tex. App. LEXIS 7512.
[3] Ukrainian dumplings similar to pierogies.