Charges in Portsmouth child porn case thrown out due to lost search warrantBy JAMES A. KIMBLE
Union Leader Correspondent
June 13. 2013 1:42PM
BRENTWOOD – A judge has thrown out evidence in a child pornography case against a Portsmouth man because the search warrant used to search the man's home and computer was lost.
All charges against Jerome Steffen, 49, were dropped by the Rockingham County Attorney's Office Wednesday morning as a result of the decision, according to County Attorney James Reams.
Steffen, who has been free on bail, faced more than 80 charges in Rockingham County Superior Court related to possession of child sexual abuse images.
Judge N. William Delker made his decision after two hearings, one on Jan. 11 and the other on March 15, which included testimony from Portsmouth police detective Timothy Cashman and Circuit Court Judge Sharon DeVries.
"To be clear, the court does not find that the police did anything wrong in this case or that Judge DeVries, in fact, issued a search warrant without probable cause," Delker said in a 15-page order.
Delker concluded that without the warrant, the defense would not be able to challenge how Portsmouth police collected evidence against Steffen – a violation of his due process rights.
Defense lawyer Howard Gross first raised the issue of the missing warrant on Dec. 12.
Delker had allowed prosecutors to call on Cashman and DeVries as witnesses during the two hearings in an effort to substitute the testimony for the missing affidavit that went with the warrant.
Gross argued that evidence in the case should be thrown out because a copy of the affidavit used to apply for a search warrant was not included with investigatory materials provided to him by the state.
The missing affidavit for the search warrant set off a search by county prosecutors, police and staff at Portsmouth Circuit Court, according to prosecutors.
But the affidavit could not be found.
The state has not been able to produce a copy of the affidavit – even an earlier unsigned draft of the affidavit which would reflect the precise wording,? Delker said.
Prosecutors tried to re-create the content of that affidavit, with the sworn testimony and a police report written by Cashman.
"There are several problems with that approach in the context of this case,"? Delker said. ?"More specifically, the importance of the need for the precise contents of the affidavit is illustrated by the cross examination of Det. Cashman."?
Cashman acknowledged during his testimony that he was aware that another detective had spoken to Steffen's wife, who accused her husband ?"of being a child molester to be spiteful,"? according to the court order.
"She also told this other detective that the pornography she saw on the computer was not child oriented,"? Delker said.
Cashman admitted he did not include these facts in the affidavit he presented to Judge DeVries.
Delker said Cashman's police report was not an adequate substitute for the affidavit, even though the detective testified that the report had essentially the same content as the affidavit.
Under cross examination, Gross elicited testimony from Cashman that the original police report had been created on Feb. 19, 2009, and the version submitted into evidence was modified Feb. 25, 2011 – more than two years after the original report was written.
Cashman testified he did not make any changes to the report and explained that after he submitted the report to a supervisor for approval, only a supervisor could modify the report, the order said.
He acknowledged that he did not know who may have modified the report in 2011, or what the change was, Delker said.
While the change could have been a simple grammatical correction, there was ?no way to review the original report,? which was the basis for the search warrant, according to Delker.
Police started their investigation into Steffen in 2009 after an attempted suicide by his then-wife.