A State College man had 836 felony counts of possessing child pornography dismissed Thursday because of misconduct by former District Attorney Stacy Parks Miller.
“The current DA’s office has no choice,” said Roy Lisko, defense attorney for Adam Zydney.
“I am in an impossible position here,” Deputy District Attorney Sean McGraw said. “We have evidence of a very serious crime. That evidence, in my estimation as an experienced litigator, would be more than adequate. That evidence has been suppressed because of misconduct by a prior district attorney.”
The Centre Daily Times previously reported Ferguson Township detective Joshua Martin testified there were 19 videos depicting children engaged in sexual acts with adults, 63 videos with nude or partially nude children in provocative sexual poses, 175 images of children engaged in sexual contact with adults or other children and 579 images of children with exposed genitalia posed in sexually provocative positions on Zydney’s computer.
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The affidavit of probable cause filed by Martin said Zydney cooperated with the investigation, including providing police the encryption passcodes for his computer and the passcodes for the file encryption on the pornographic images and videos.
Detective Martin made a quid pro quo agreement with Zydney to file a single charge against Zydney if he fully confessed and explained the circumstances to police, according to a pre-trial motion filed by Lisko on March 2, 2016.
The images and videos were sent to the District Attorney’s office on Sept. 29, 2015. Martin was advised to file additional charges on Oct. 15, 2017, based on a more extensive review of the images by the district attorney’s office.
Martin reluctantly filed additional charges at the direction of Parks Miller, according to McGraw.
“There was one count filed, and then I got a look at how extensive this pornography collection was and how shocking it was and we requested the officer to have the entire drive analyzed and the whole thing be charged appropriately,” Parks Miller said at Zydney’s preliminary hearing on Nov. 18, 2015. “It came to our office and we were like, ‘Oh no. This guy needs the appropriate set of charges like everybody gets.’”
In his pre-trial motion, Lisko said, “In reliance of the detective’s offer, Zydney gave a comprehensive and candid statement to detective Martin that ultimately served to implicate Zydney in the alleged activity for which he is currently facing the instant criminal charges.”
McGraw shared a similar perspective with Lisko.
“Had detective Martin said to him, ‘Well, I may bring one count, but there is a possibility that more counts will be brought,’ there is a very good likelihood that Mr. Zydney would not have agreed to that information, nor would he have made incriminating statements,” McGraw said.
Insufficiency of the search warrant and a coerced confession were the reasons listed by Lisko in the pre-trial motion to suppress all statements and evidence illegally obtained by the Commonwealth.
“Although detective Martin cannot bind the Centre County District Attorney’s office with promises as to charging decisions, the prosecution cannot then use evidence obtained as a direct result of those promises against the defendant. Therefore, the court finds that the defendant’s statements were not voluntary and must be suppressed,” former President Judge Thomas Kistler said in a notice of appeal ruling on May 4, 2016. “By ordering suppression of this evidence, the court has put defendant back in the same position as he would have been had he not spoken to detective Martin.
Lisko filed a motion to dismiss the charges on March 19 due to a lack of evidence. Parks Miller filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on Jan. 3.
“I have no evidence to proceed in this criminal case,” McGraw said.
Court of Common Pleas Judge Brian Marshall attempted to clarifying the situation after McGraw’s statement.
“You’re saying you have no useable evidence in either case?” Marshall asked.
McGraw again said he has no statements and no evidence to proceed.
“It does not appear that the court is left with any option other than to grant the motion in both cases,” Marshall said.
Zydney is the son of State College Area School District board member Laurel Zydney.