Dec. 11, 2007 -- A well-known San Francisco talk radio host who says he e-mailed child porn as part of research for a book has been indicted on federal pornography charges.
Bernie Ward, 56, a former priest and popular host of two local talk radio programs, was charged, in an indictment unsealed late last week, with two counts of distributing child pornography and one count of receiving the material. If convicted, he faces a minimum of five years in prison for each charge.
Ward's lawyer told ABC News that Ward e-mailed the illicit images, but only as part of his research into a book about what he believed to be the hypocrisy of the religious right. Though it is illegal even for journalists to trade or possess child pornography as part of their work, Ward's attorneys argue that there should be some leeway for legitimate research into the subject.
Jeanette Boudreau, Ward's business attorney, said Ward — described on his Web site as "unabashedly liberal" — told her he wanted to show that some Republicans and members of the religious right are public moralists who don't practice what they preach in the privacy of their homes. Ward and prosecutors from the Department of Justice declined to comment on the case.
"He tried to have a dialogue with people and see what he could talk them into saying and agreeing to," she said. "He lost track of himself and didn't stop and think about what he was doing."
If Ward's version of events is true, his case touches on a problem facing some journalists and attorneys who deal with child pornography.
Though journalists tackle touchy issues like child pornography, it is generally illegal to possess child pornography for any reason and federal law does not provide an exception for reporters or academic research. Reporters usually consult with or work with law enforcement to access the material, said Gregg Leslie, legal defense director at the Reporter's Committee for Freedom of the Press. Though it is illegal to possess the images by saving, printing or e-mailing them, it is not illegal to merely view the images, said Parry Aftab, a cybercrime expert.
Even when the images are evidence in a criminal case, defense attorneys are often required to view them only in a government facility, instead of getting copies of the pictures.
"Congress has developed a more or less zero tolerance policy for this and I think the American public can understand that," said Andrew Oosterbaan, chief of the Department of Justice's Child Exploitation and Obscenity section.
"The purpose of the law is to protect the images by the most careful and deliberate means."
In the few cases where journalists have been charged with trading in child pornography, the courts have treated them like any other defendant, Leslie said. In 2000, for example, a federal appellate court rejected a freelance reporter's claim that the First Amendment protected his right to trade pornographic pictures, which he claimed were part of his research.
"It's no different than trying to get involved in drugs," Leslie said. "If you tried to buy or sell cocaine, no one cares if you're just doing it for a story. If you want to get involved to that level, you almost have to do it through working with law enforcement."
Federal law provides a defense if a person accidentally possesses three or fewer child porn images and they are immediately destroyed and reported to police. But, Ward's attorneys said there should be a further exceptions.
"There has to be some way in which journalists and academics can access these materials when it's not for a prurient purpose," said Doron Weinberg, Ward's criminal attorney.
Ward's indictment focuses on his actions in December 2004 and January 2005. Weinberg said investigators searched Ward's house and computer in early 2005.
He said that he and other attorneys have been in discussions with prosecutors, trying to persuade them not to file charges. Federal prosecutors declined to say why they waited until recently to seek an indictment and Weinberg said he did not know why the indictment took so long.
The U.S. attorney in San Francisco recused himself from the case, after which it was transferred to federal prosecutors in Washington, D.C. Benjamin Vernia, a former federal prosecutor who handled child exploitation cases, but who was not familiar with Ward's case, said the transfer to Washington could account for the delay. He added that prosecutors typically handle child pornography cases more quickly.
"They tend view them as a threat to the community," he said of the alleged pornographers.
Boudreau said Ward, a married father of four, e-mailed the images, but did not store them on his hard drive or collect them. She said she was told that the case originated when a person with whom Ward had been e-mailing about child pornography called the police.
"Obviously this is devastating," Weinberg said. "It's ruined his career."
Jack Swanson, operations director of KGO Radio, said in a written statement that Ward was a "valued, longtime employee."
"We were just recently made aware of these serious charges and are surprised and concerned by their nature," the statement said. He said the station would have a substitute host for Ward's time slot.
Vernia said journalists could ask law enforcement officials to allow to them to view the images as part of their research.
Though he was not familiar with details of Ward's case, Vernia said that defendants frequently defended themselves by saying they were only doing research, but, "these kinds of defenses are almost always spurious. Once you start looking into the details, it's usually easy to tell."
Ward, who sometimes appears on national television, has worked as both a talk show host and as a journalist. He won a national journalism award for a series on allegations of sexual abuse and financial corruption in the San Francisco Archdiocese.
He is known for his charitable work, and his annual Thanksgiving charity drive has reportedly raised millions of dollars. Poncho Guevara, director of Sacred Heart Community Service in San Jose, said Ward raised about $100,000 for his organization last year.
"Bernie is deeply committed to trying to make things happen," Guevara said. "He doesn't just talk a good game, but says I need to put my weight behind this in a big way. He is a source of inspiration for the work we're trying to do."
Ward, who has pleaded not guilty, is due in court early next year. Oosterbaan would not comment on the case, but said that he has never heard a journalist describe a scenario in which the journalist needed to view child pornography.
"The images are pretty horrific stuff," he said. "Every one of these victims says that the worst part is that the images will never go away. They are distributed so widely, and it's hard to imagine how terrible it would be to know that your image is out there and being traded."
Boudreau said that Ward should not be prosecuted. "These laws are designed to catch predators and pedophiles and that's not who Bernie is and not why he did it," she said. "He got ensnared in his own obsessive personality."