A tentative trial date for former TV-33 owner Peter Mallory, accused of possessing of more than 46,000 files of suspected child pornography, was set at a hearing Tuesday.
Mallory, 64, was charged with multiple counts of child pornography and tampering with evidence after a search of the television station at 211 Fort Drive on April 27, 2011.
Judge Dennis Blackmon ruled the second half of audio recorded during the search was inadmissible. Blackmon granted a motion to continue and set a tentative trial date for Nov. 26.
The prosecution, led by attorney Kevin McMurry, presented two audiotapes taken from a recording device worn by detective Wayne Cato during a search for suspected child pornography in the studio. Cato testified that he witnessed Mallory remove the hard drive from a computer, despite detectives on the audio tape telling him not to touch any computers.
“He said he needed that computer to do a newscast that he was very concerned about,” Cato said.
According to Cato, who remained with Mallory throughout most of the search, Mallory was sweating profusely while sitting at a desk. Cato agreed to turn on a fan, after he refused when Mallory asked the first time. Cato said he walked over to where Mallory said wires for the fan were located, and Mallory was under the desk, on his knees, when he returned moments later.
“I stepped to the back of the desk to see what he was doing and saw Mr. Mallory pull the hard drive out of the tower and put it in a box,” Cato said.
Cato, along with other detectives from the criminal investigations section of the LaGrange Police Department, handcuffed Mallory and walked him outside. Cato and Sgt. Marshall McCoy both said Mallory was not a suspect prior to the alleged removal of the hard drive.
Peter Mallory’s brother, Ned Mallory, was with him at the studio at the time of the search. Investigators were unaware that Ned Mallory was also his attorney at the time of the search, McCoy said.
“He said he wasn’t a criminal attorney and that he wasn’t representing his brother,” McCoy said. “It was my understanding that he was just there to support his brother.”
McCoy testified that there was no mention, by either of the brothers, that Ned Mallory was Peter Mallory’s attorney.
Defense attorney John Garland argued that if, in fact, detectives thought Mallory was without an attorney, they should have secured Mallory’s Miranda rights at the time of his arrest.
“The police should have known that the questions they were asking were likely to elicit incriminating responses,” Garland said. “It doesn’t have to be in the form of a question. Anytime a statement is made to elicit a response, it’s an interrogation.”
Detectives said Mallory responded, “I did,” after Cato informed McCoy that he removed the hard drive. Garland said these types of statements between detectives were intended to elicit responses.
According to McMurry, the statements were not part of an interrogation technique, but reactions to the incident that had just occurred.
“It was an attempt to get help, because he thought he had just seen him remove the hard drive,” Blackmon said.
Blackmon granted a motion to continue, after the defense said they would need at least six months to review the 46,690 suspected child pornography picture and video files.
“It’s not a question of who was in possession of it or if it is child pornography,” Garland said. “It is a question of knowledge and who opened it.”
Garland said an expert has been hired to review computer files and look for patterns in activity. Otherwise, he said, the defense would have to address each image individually.
“It’s a breathtaking undertaking,” he said. “There is no lack of evidence here.”