Matthew Taby’s attorney, Richard Kibbey, argued for dismissal on the grounds that the law, which attaches a minimum of 10 years of jail time per count, was unconstitutional.
“If the statute was blatantly unconstitutional, I would have the authority and, maybe, obligation to find it to be unconstitutional,” said Martin Circuit Judge William Roby at Wednesday’s hearing. “But I do not find the statute to be unconstitutional.”
Taby, a 50-year-old who worked in engineering at Pratt & Whitney, was arrested in May after investigators reported finding more than 1,000 images and videos of children engaged in sexual activities on an external hard drive attached to his laptop computer, according to an affidavit.
Kibbey argued that the law charging Taby with multiple second-degree felonies was “overkill” and meant to punish those who victimized children, not the “passive collectors” of images and videos involving children.
“How does that reconcile itself in an argument, that (a) person could be facing death in prison for merely looking at dirty pictures?” Kibbey said. “There’s nowhere, there’s not a hint that, that was the legislators’ (intent).”
But assistant state attorney Vicki Nichols said each image and video was a separate crime and should be punished as such.
“We’re allowed to overkill because (Taby) committed a thousand crimes,” Nichols said. “He’s the reason he’s facing thousands of years (in jail).”
Roby, whose decision pushes Taby’s case to its first trial hearing March 19, said he thought whether or not the statute was unconstitutional would be a decision for the court of appeals, not a trial judge.
Kibbey said if he appeals the decision, the three-judge panel in appellate court would be more likely to make a decision about the constitutionality of the law which has incarcerated Taby for nine months.
“It’s not over yet by a long shot,” Kibbey said.