Judge William G. Young

Judge William G. Young is hearing the case against Josh Wairi, the Graham & Parks School teacher arrested on charges of possession, transportation and production of child pornography in April 2014. (Photo: uscourts.gov)

A federal jury is expected to return a verdict Tuesday in the trial of Josh Wairi, the Graham & Parks School teacher arrested on charges of possession, transportation and production of child pornography in April 2014. The trial began Wednesday, and the jury began deliberating Friday morning; they have the weekend and today off and resume Tuesday.

Wairi, who had previously taught at Somerville’s Healey school, has admitted to possessing more than 25,000 images of child pornography on a flash drive. He has also admitted to transportation, by trading child pornography over the Internet; and he admitted to hiding a camera and secretly filming videos of Somerville fifth- and sixth-grade students in the showers during a 2011 environmental education overnight trip, as well as during a class trip to the swimming pool at the John F. Kennedy school in Somerville.

The only substantial questions for the jury to decide are whether Wairi “produced” child pornography within the meaning of the law, and whether he attempted such production. He is charged with three counts of production and attempted production, one for each of three students. Wairi is not accused of having transported or shared the videos he shot.

“The first thing you have to keep in mind,” Judge William G. Young charged the jury on Friday, “is this statute requires more than mere nudity. The nakedness of a minor, standing alone, is not enough to render a photo lascivious.”

Based on questions from the jury to the judge, it appears the jury is struggling to decide whether Wairi is guilty of the attempted production of child pornography. Their question suggests they are prepared to find Wairi not guilty of production of child pornography.

Government witnesses

The government prosecution was led by assistant U.S. attorneys Suzanne Sullivan Jacobus and Seth Orkand. Orkand told jury members that they would be shown that Wairi hid a camera under a towel facing boys’ showers during an October 2011 trip to Nature’s Classroom in Yarmouth Port, Mass., on Cape Cod. Orkand also said he would show that Wairi took his fifth-grade class to swim at the Kennedy Pool and filmed students in the locker room.

“On one occasion, the defendant entered the boys’ locker room. He set up his iPhone to capture video, pressed record, slipped the iPhone into the pocket of his pants, with only the lens sticking out. You’ll see filmed again a naked boy, this time changing out of his clothes and into a bathing suit. Once again I suggest you’ll conclude the defendant attempted to produce and did produce child pornography,” Orkand said during his opening Wednesday.

Orkand and Jacobus began with Scott Kelley, a U.S. postal inspector for the Boston region. Kelley testified that the National Center for Missing and Exploited Children had received a tip from Dropbox that eight videos of suspected child pornography had been uploaded to the online file-sharing service. Kelley got several search warrants, confirmed the videos were child pornography, obtained the location of the originating computer and executed a search warrant at 6:55 a.m. April 17, 2014, at Wairi’s apartment on Beacon Street in Somerville.

Josh Wairy

Josh Wairi

Kelley seized two laptops and a 32-gigabyte thumb drive, he testified. He then talked to Wairi, who cooperated and agreed to waive his Miranda rights and be interviewed.

“You may not believe me, but I would never hurt any of these kids,” Kelley testified that Wairi told him. “I know it’s not right; looking at pictures are one thing, but I would never hurt a kid.”

When Kelley told Wairi that his computer equipment was being analyzed in a van outside, Wairi confessed that he had shot videos at the Kennedy Pool and at Nature’s Classroom, according to Kelley’s testimony.

At the end of Kelley’s interview with Wairi, Kelley placed Wairi under arrest. According to Kelley, Wairi called his mother, Vicki Wairi, from the back of the police car and told her he had some “bad news” – words to the effect of, “I’m in the back of a police car and headed to see a judge for possession of bad pictures of kids. I’m not sure I did the right thing; I did what you taught me to do and told the truth.”

The second witness was Mark Scichilone, a forensic analyst for the Postal Inspection Service. Scichilone (pronounced SHICK-ill-oh-nee) was in the forensic van inspecting Wairi’s computers and the thumb drive while Kelley interviewed Wairi. Scichilone testified about the child pornography he found on the thumb drive: more than 25,000 images and 400 videos, he said.

Scichilone testified that one of the folders on the thumb drive contained folders named “G&P,” “Healey,” “Kennedy,” “My Pictures” and “Preview.” While the prosecution presented evidence that Wairi’s own videos from Nature’s Classroom and the Kennedy Pool appeared in the Healey and Kennedy folders, it did not explain or further refer to the G&P folder. The government did not offer evidence that Wairi had photographed children from the Graham & Parks School.

Scichilone testified that the thumb drive contained videos named with the first names of boys in Wairi’s Somerville class – videos of naked boys taking showers at Nature’s Classroom.

Three of those videos are the source of the three counts of production and attempted production. The videos were shown to the jury and provided to them as exhibits for them to review, as were four samples of the child pornography Wairi had downloaded, but did not make.

The government’s third and final witness was Anthony Pierantozzi, the Somerville superintendent of schools. Pierantozzi testified about Wairi’s employment at the Healey School and approving the overnight field trip to Nature’s Classroom, which the school has done every two years.

The defense

Wairi, represented by defense attorneys J.W. Carney and Benjamin Urbelis, mounted a minimal defense. Carney chose not to cross-examine any of the government’s witnesses. He called none of his own. And, as he told the jury in his closing statement, “I only made a single objection, when a witness seemed to be repetitive.”

Carney told the jury, “there is only one question that each of you has to decide. Is Mr. Wairi filming, in that locker room or shower: Was that sexually explicit content?

“If what Minor A, Minor B and Minor C was doing in that shower was sexually explicit conduct, then Mr. Wairi is guilty. If it wasn’t, then he’s not guilty,” Carney said. “You have to be able to say, beyond a reasonable doubt, that those boy were engaging in sexually explicit activity in the shower in order to find the defendant guilty of the production counts. That’s what the law requires.”

Throughout the trial, Wairi was supported by his mother, who attended jury selection as well as the trial proper, accompanied by Wairi’s brother and a handful of friends.

A former teaching colleague of Wairi’s and her husband also attended, sitting far from Wairi’s family and friends. The couple said Wairi had babysat for them, and they did not support the defense.

Questions from jury

An example of a jury question sent during deliberations on the charges against Wairy.

An example of a jury question sent during deliberations on the charges against Wairi.

The judge encouraged the jury, made up of 10 men and two women, to ask written questions during the trial and their deliberations.

Just before closing arguments on Friday morning, and after Young had instructed the jury on the precise definition of sexually explicit conduct for purposes of production of child pornography, the jury acknowledged they were instructed to not consider Wairi’s intent in photographing Minor A, because the definition of child pornography is objective, not subjective, but went on to ask whether that applied to attempted production as well. Young replied by offering the example of a Sears’ catalog, and how some people might be aroused by the depictions within. But that subjective arousal doesn’t make the catalog pornographic, Young said: “Some people have quirks … that doesn’t make it lascivious.”

Young told the jury that the definitions in the law – the statute – are the same for attempted production as well as production, and the jury should apply the same standard to both.

The jury went out to deliberate at 11:51 a.m. Their next set of questions was marked 12:15 p.m. Those questions were requests for copies of the flip charts the defense used during its closing arguments, which quoted from the child pornography production statute. They also asked for written copies of the guidance Young had given on the definitions of child pornography.

The final question on Friday came at 4:10 p.m.: “For attempted production, would you define child pornography from Wairi’s or from [the] general public’s perspective?”

Young’s answer was long. He began by repeating what he said earlier to the third question: “The words of the statute are exactly the same. And mean the same things.” Young further echoed the words of Carney’s closing statement: If Wairi’s videos depicted what he wanted them to depict – “that he got what he wanted” – then if the result was not child pornography, the attempt was not an attempt at producing child pornography.

Forty minutes later, the jury left for the weekend.

Jury may not be the final word

If the jury does find Wairi guilty of production or attempted production of child pornography, it is unlikely to be the final word on the subject.

Throughout the trial, out of the presence of the jury, the government and defense lawyers have hotly debated exactly how the jury should be instructed on the production counts. The words around the definition of “sexually explicit conduct,” which can include “the lascivious exhibition of the genitals or pubic area,” has been central.

At 7:10 a.m. Friday, the defense filed a so-called Rule 29 motion. Rule 29(a) of the Federal Rules of Criminal Procedure requires the judge must grant “acquittal of any offense for which the evidence is insufficient to sustain a conviction.”

After the jury returns its verdict, Young will consider the motion. Young, who is 75 years old with 30 years on the federal bench, told the attorneys that he found the case interesting, and that “one of the fascinating aspects is the line between judge and jury.”

The jury resumes deliberation at 9 a.m. Tuesday.

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