You Know, For Kids!

I'll be the first to admit, this does not sound like a really bright idea:

Mr. Emory, 21, an aspiring singer and songwriter, became a household name here last month when he edited a video to make it appear that elementary school children in a local classroom were listening to him sing a song with graphic sexual lyrics. He then showed the video in a nightclub and posted it on YouTube.

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Mr. Emory, who had gotten permission to sing songs like 'Lunchlady Land' for the first graders, waited until the students left for the day and then recorded new, sexually explicit lyrics, miming gestures to accompany them. He then edited the video to make it seem as if the children were listening to the sexual lyrics and making faces in response.

That may be stupid.  Might be in bad taste.  It seems to be a pretty big breach of trust when it comes to the folks in the school that signed off on Emory's scheme.  It might even be funny.  But is it criminal?  Maybe, in some minor misdemeanor way, in violation of some obscure statute lurking in the Michigan code.  But the prosecutor in the case has gone way off the deep end:

Tony Tague, the Muskegon County prosecutor . . . charged Mr. Emory with manufacturing and distributing child pornography, a crime that carries a penalty of up to 20 years in prison and 25 years on the sex offender registry.

Wait, what?  I've represented people charged with possessing and/or distributing child pornography and, without going all Potter Stewart here, I just don't see it in this case.  Nor does Emory's behavior appear to fall within the Michigan definition of Child porn, as summarized by Jacob Sullum over at Reason:

The statute that Tague accused Emory of violating makes it a felony to produce 'child sexually abusive material,' defined as 'any depiction...which is of a child or appears to include a child engaging in a listed sexual act' (emphasis added). A 'listed sexual act' is defined as 'sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity.'

Emory's video, whatever may be said of it, doesn't show children engaging in any of those activities.  Indeed, as Sullum points out, even if the video is what it makes itself out to be, it wouldn't violate that statute.  In fact, I'm not sure how the prosecutor ever got a warrant to arrest Emory for that offense.  If he had to go through a grand jury (I don't know if Michigan requires a grand jury indictment for a felony charge), it's further proof of the old adage that a prosecutor could indict ham sandwich.

At the very least, the prosecutor appears to be having second thoughts, but can't do the right thing and dismiss the case due to outraged parents (of which he is one, by the way) and is looking for a way to hit Emory with something that doesn't "ruin his life."  Emory's defense attorney is on the same page, which is a little distressing, but I hesitate to second guess him without knowing more.

What this whole mess shows is, once again, the problems with leaving prosecutorial authority with elected officials.  The parents in this case are rightfully pissed off, but that doesn't mean they get to throw Emory in prison for decades. The prosecutor, whose responsibility is to the Constitution and to do justice, should step up and tell them that.  But it doesn't look like he will.