June 17, 2020 446 PM
TERLINGUA — Tom Arthur’s trial has been pushed back to October as federal authorities, for at least the second time, have said they need more time to prepare their case.
Arthur, a resident of the Terlingua area, was arrested last year after the FBI in November conducted a raid on his Brewster County compound. Authorities later charged Arthur with three offenses: importation or transportation of obscene matters, engaging in the business of selling or transferring obscene matters, and obscene visual representations of the sexual abuse of children. Arthur has been awaiting trial in detention ever since.
In court filings and hearings, authorities offered more context for the arrest. They accuse Arthur of running a subscription-based website focused on text-based child abuse erotica, which they say was netting him between $10,000 and $14,000 per month along with another adult erotica website.
The case has proved complicated for a few reasons. While federal law clearly bars child pornography or visual depictions of it, the laws around similar text-based content are more convoluted.
In 2002, the U.S. Supreme Court ruled that “virtual child pornography is not ‘intrinsically related’ to the sexual abuse of children.” Congress responded the next year by restricting drawings, cartoons, sculptures and paintings that depict “a minor engaging in sexually explicit conduct.”
While most of the federal case against Arthur focuses on text-based content, authorities have also said there was at least one obscene drawing on Arthur’s site. But that drawing was reportedly done by a website user, not Arthur — and while Arthur admitted to running the website, he insisted that any such drawings were “art,” according to court filings.
Arthur’s lawyer, Mark Bennett, has dug into these complex and shifting rules on obscene content to argue that the case against Arthur is baseless.
“Federal law does not even purport to forbid the mere possession of text obscenity, whether in the home or out,” he argued in a filing from April. He also made a number of similar arguments, including arguing that rules on visual representations of child sex abuse are “void under the First Amendment.” He also argues that, since Arthur’s website contained content that was “allegedly obscene, but not child pornography,” it is “Congress’s job” to impose rules on it, not prosecutors.
The case isn’t just complex for legal reasons, though. Authorities have also run into logistical challenges as they comb through evidence seized from Arthur’s property and attempt to further investigate his website.
Arthur’s trial was initially set for January. But in court filings late last year, prosecutors said their case was “so unusual or so complex” that it was “unreasonable to expect adequate preparation” by that time. Instead, they requested the trial be reset for June.
Authorities said they’d seized large amounts of evidence from Arthur’s Terlingua-area compound, including 95 boxes of “sexually-oriented books” that needed to be “inventoried, catalogued and photographed/scanned” and 25 media devices ranging from VHS tapes and flash drives to cell phones. All of it would take a “considerable amount of time” to analyze.
Bennett, Arthur’s lawyer, previously told The Big Bend Sentinel that while he preferred if the case weren’t delayed, “his chances of getting out are better if all the I’s are dotted and all the T’s are crossed.”
“We had no objections that would make any difference,” he said of the delay. The case got rescheduled for June.
Then, on Friday, prosecutors filed another motion asking for the case to be moved back to October. It was an unopposed motion, meaning Arthur’s lawyers agreed to the delay.
In the filing, prosecutors cited the impact of the COVID-19 pandemic on the court system, along with additional legal complexities in the case.
The United States government, they said, had made a request for “mutual legal assistance” from the Netherlands, where Arthur was allegedly storing contents of his website on a private server. Such requests are common when U.S. prosecutors want to interview a suspect in a foreign country — or in this case, gather digital evidence from abroad.
While the Netherlands made evidence seizures based on that request, U.S. authorities say it will nonetheless lead to more delays. In court filings, federal authorities said they heard from counterparts in the Netherlands that it could be at least two months before evidence from Arthur’s website is “turned over to U.S. law enforcement officers.” And after they get the data, the U.S. government will need to “make such material available for review by defense counsel and their experts,” which could take “additional time.”
In an interview Monday, Bennett confirmed that Arthur is still in prison awaiting trial. A federal judge in November denied Arthur bonded release after hearing — among other things — that Arthur was advertising and selling “armor-piercing” ammunition online.
Bennett said it is “unfortunate” that Arthur is awaiting trial in prison but said it is not unusual, given the circumstances of cases like these.
It could be months or years before Big Bend residents see an outcome from the case. And a number of questions remain unanswered, including whether authorities will pursue further charges against other users of the site. The U.S. attorney’s office for the Western District of Texas did not respond by press time to a request for comment on this question.
After all, at least one of the allegedly obscene images on the website was reportedly posted not by Arthur, but by someone else. And authorities in their initial court filings declined to name the website, noting that “some of the users of the website are still under investigation.”