Prosecution Seeks To Take Picture of Defendant’s Erect Penis. Judge Says No. Twice.

The prosecution wanted the photograph for comparative purposes. The defense argued that it would unduly embarrass Jackson. Perkins found no compelling reason from the prosecution to seek the photographs. How the operation would have been successfully attained was never discussed.

It might have been funny had the case not entailed a serious accusation of a sexual crime by an adult against a child–the alleged transmission of photographs or video of the then 50-year-old Jackson’s penis to his 15-year-old Palm Coast cousin, and of the girl’s vagina to him over Facebook messenger last year. 

Jackson faces a felony count of transmitting material harmful to minors and a felony count of using a computer to solicit or lure a child. He faces a maximum of five years in prison on each of the counts. He turned down a plea deal that would have spared him prison, placing him on probation, but also branding him a sexual offender for life.  “Mr. Elijah Jackson along with myself maintain his innocence,” Assistant Public Defender Alexander Smith-Johnson said this morning, moments before jury selection began in the trial. “So that wasn’t going to be something he was willing to entertain. That’s where we found ourselves where we are today.” 

The allegation was first reported to the Flagler County Sheriff’s Office last January, when the 15-year-old girl’s sister reported the alleged conversations and exchanges taking place between Jackson and her sister on Facebook, including the exchange of images of each other’s genitals.Child Protection Team investigators interviewed the alleged victim a few days later. The girl told the interviewer that she’d engaged in Facebook conversations with Jackson for two months prior and said the exchange of pictures and video took place. The sheriff’s office then received detailed reports from the CyberTipline about an adult male “enticing an apparent female minor to produce and send child exploitation imagery” through private messaging, according to Jackson’s arrest report. “Conversations indicate that they have expressed interest in engaging in sexual activity and appear to be within close proximity to each other.” 

The CyberTipline identified the girl’s account specifically as well as that of Jackson’s, his email address and his phone number, providing excerpts of their exchanges. Those included advice, allegedly from Jackson, on how to twerk and sexually explicit comments from him about the girl’s vagina, what he would do with it, and what he wanted her to wear the day they would engage in sex.

Detectives retrieved messages between the girl and Jackson from the girl’s cell phone indicating Jackson knew he was in conversation with his cousin, with evidence of the video she’d sent and an image of an erect penis she’d received from him, one “presumed to belong to a black male.”

That presumption became the rationale behind the prosecution’s motion to seek a photograph of Jackson’s penis–ostensibly to remove the presumption and remove reasonable doubt that Jackson’s penis is the one depicted in the image that was on the girl’s cell phone. 

“The State has the burden to prove that the defendant is the person who sent this photograph to the minor victim,” Assistant State Attorney Melissa Clark argued in her original motion. “The State is seeking to take a photograph of the defendant’s unclothed and erect penis in order to prove that the photograph of the penis sent to the minor victim in this case was in fact a photograph of the defendant’s penis.” 

Perkins rejected the motion after hearing Clark’s and Smith-Johnson’s arguments. “The judge wanted more than the fact that he was an uncircumcised black male,” Clark explained, though she said seeking the photographs falls under the rules of discovery. 

“What I understood from Judge Perkins’s ruling was–what was the reason for the picture?” Smith-Johnson said. “What exactly, as far as identification, what are we looking for? Is there some distinct mark, is there some identifiable feature of what is depicted in the picture that’s going to, you know, illuminate for us–hey, this is clearly Mr. Elijah Jackson? The reason in both of the motions being denied that I understood was that there just wasn’t.”

Perkins denied the motion but without prejudice–leaving the door open for the prosecution to refile and re-argue the motion if it could bring forth additional reasons. It did (though the motion was argued this time by Assistant State Attorney Jason Lewis, as Clark was elsewhere). This time the amended motion included two additional paragraphs of arguments and six or seven pages culled from the Internet (HowStuffWorks on “vein geometry” and “Is This Normal? 10 Common Penile ‘Flaws’ You May Have,” from New Jersey Urology) about what may make a penis stand out–individually, that is, not from a physiological, erectile perspective. 

“According to two separate sites on the internet,” the prosecution’s motion now read, referring to veins on a penis, “vein pattern is unique to an individual much like fingerprints. Even identical twins do not have similar vein patterns.” The photograph at the heart of the case, the motion states, “has several distinguishing characteristics unique to its owner to include the lack of circumcision, the vein pattern on the shaft of the penis, and a skin tag/mole located on the shaft of the penis.” 

The argument was not any more convincing to Perkins than the first time. 

“As delicate as I can put it, it was just a picture of what we know it depicts, there was nothing special about it,” Smith-Johnson said of the picture. “If you were to take that picture, there’s nothing truly identifiable that would make you say, OK, this has to be him. I think the state on the second go-around, because they refiled the motion, they had some literature about, you know, identifying veins. But the problem is with that, number one, from the research that I need, you’d need an oncologist who specializes in vein identification to do that. The jurors certainly weren’t going to be adept to do that, so we would basically be putting ourselves in an awkward position. Never mind even how awkward the motion was.”

The state’s rules of criminal procedure allow for discovery of all sorts. But the rules also state: “The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.”

Smith-Johnson seized on the embarrassment clause to press his case. “That was my first argument,” he said. “Judge, if there was any situation that would be unduly embarrassing to a client, certainly this would have to rank up there. So that was one. There were other search and seizure elements that I could have gone into, both on state and federal levels, but for the most part I just kept my argument to the restriction of the discovery that the judge of his own accord can do.” 

Smith-Johnson said colleagues have spoken to him of such precedents, “that this is maybe common practice in other areas, other counties. But I certainly have never come across anything like that. No.”

If there is precedent, it is not common. One notorious case dates back to 2014, when prosecutors in Manassas, Va., sought to photograph the erect penis of a 17-year-old boy facing charges of possession of child pornography and manufacturing child pornography after exchanging explicit images with his 15-year-old girlfriend over phones. They secured a warrant to get the picture. “We just take him down to the hospital, give him a shot, and then take the picture that we need,” Clairborne Richardson, the prosecutor in that case, was quoted as saying in a BUzzFeed report. 

But the case triggered an uproar of protest–the boy’s guardian ad litem called the warrant “effectively child abuse”–and the prosecution abandoned its efforts to seek the picture. 

In the Flagler case, Perkins appears to have staved off what would have revived a similar controversy, though the alleged defendant in this case is not a child. 

“To be charitable, the end of the first hearing took on a very comical, I would say, a comical tone. Even Judge Perkins, he had a little fun with it,” Smith-Johnson said of Perkins, a constitutional scholar of fastidiousness. “I wouldn’t say that he had any qualms, but going in I think there was an atmosphere at that first hearing that, everyone was a little taken aback. Mainly, and I think that you’re correct, not because of the request, but because of how detailed, and the state that they wanted this to be done in, it was definitely hard to keep a straight face at the end of that.” 

The issue did not come up today at trial, a day devoted first to a pair of pre-trial motions to ensure that the defense doesn’t bring out any reference to the alleged victim’s checkered disciplinary history or her behavior online aside from that with Jackson. Clark said she was making the motion to be sure such issues would not come out because, surprisingly, Smith-Jackson had not deposed his client and Clark did not know what the defense might say. The defense agreed to the motion regardless. 

The day then moved on to jury selection, from a pool of 30 jurors, where levity was confined to what some of the jurors considered “hardship” grounds to be excused. One man cited picking up his girlfriend at the airport as a reason. A woman had a pre-scheduled trip to Seaworld with her daughter and four of her daughter’s friends. And, almost in the improbable league of a prosecutor subpoenaing Mapplethorpe’s “Man in Polyester Suit,” there was this exchange between a juror and the judge: 

“I have a hair appointment.”

“Hair is important,” Judge Perkins said, quipping about his own. “But I’m not sure it’s a hardship.”

“It’s a hardship. Trust me.”