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Wairi

Wairi

Josh Wairi will go to trial the final week in April, and the outline of the trial has started to become clear. Wairi is the former Graham & Parks School teacher arrested in April 2014 and charged with possession, transportation, production and attempted production of child pornography.

At a pretrial hearing last week, defense attorney J.W. Carney said Wairi would not contest the charges of possession and transportation of child pornography.

“The sole issue … is whether the videos produced of naked children taking showers and getting dressed meets the definition of child porn,” Carney told Judge William G. Young on Friday. Carney said that Wairi admitted he had made the recordings. The videos were made with a hidden camera in a school locker room, according to the indictment.

To qualify as child pornography, the law requires that videos contain “sexually explicit conduct.” Because the videos do not include sexual intercourse, the question is whether they constitute “lascivious exhibition of the genitals or pubic area of any person.” Wairi’s lawyers are expected to argue that unposed photographs of naked children in a locker room do not qualify as “lascivious.”

To be lascivious, courts typically employ a six-part test based on United States v. Dost, a 1986 case. The Dost factors include whether genitals are the focal point of the images; whether the setting is generally associated with sexual activity; whether the child is shown in an unnatural pose; whether the images suggest a willingness to engage in sexual activity; and whether the image is intended to elicit a sexual response in the viewer.

For Wairi, the production charge amounts to the difference between a 15-year sentence and a five-year sentence (for possession and transportation).

Jailhouse informant

While jailed in Rhode Island awaiting trial, Wairi allegedly admitted to his cell mate that he shot the videos, and also that he had sexually abused children in the past. That cell mate is a cooperating witness in an unrelated case, and the government intends to call that witness against Wairi, Carney said at the hearing.

Wairi, who was present during the discussion, shook his head no when the allegations of sexual abuse were referred to.

Carney said Wairi would admit he shot the videos, but that he would ask the judge to exclude the witness’ testimony about allegations of past abuse on the grounds it would have undue weight with a jury. That exclusion is permissible under the federal rules of evidence.

The jury will be empaneled April 27 in federal court in Boston, after which the court will rule on the testimony of the informant; the trial is expected to start April 29.

Background

Law enforcement officials arrested Wairi a year ago – April 17, 2014 – forcing their way into his Beacon Street, Somerville, apartment to execute a search warrant. They had been investigating since the previous July, according to an affidavit by Postal Inspector Scott W. Kelley, when AOL and Dropbox reported exchanges of suspected child pornography.

Before working with fifth-graders at Graham & Parks, the suspect taught in Somerville at the Arthur D. Healey School, which is attended by students from kindergarten to the eighth grade.