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A Project of The Annenberg Public Policy Center

Mudslinging in Arkansas Judicial Race

An outside group with a history of running dubious ads in judicial races claims Tim Cullen, a candidate for the Arkansas Supreme Court, argued in a legal brief “that child pornography was a ‘victimless crime.’ ” Not exactly. Cullen’s brief does not explicitly say child pornography is a “victimless crime.” That’s how Law Enforcement Alliance of America interprets the brief — which is repeatedly misused in the ad to create a misleading narrative based on a partial set of facts.

The larger point is this: The ad appeals to emotions and undermines respect for the legal system. It attacks Cullen for doing his job. He was appointed by the court — a fact not mentioned in the ad — to represent a convicted sex offender, Leonard D’Andrea, who was exercising his constitutional right to appeal his sentence. D’Andrea’s sentence exceeded federal sentencing guidelines — another fact not mentioned in the ad — and Cullen argued that it should be within the guidelines. The ad leaves the false impression that Cullen was seeking to have D’Andrea avoid jail time altogether when it says “predators belong behind bars.”

“The idea of attacking someone simply for fulfilling the mandate of the United States Constitution to provide every accused person with a defense attorney is inconsistent with the nation’s fundamental values,” Jerry J. Cox, president of the National Association of Criminal Defense Lawyers, said in a statement about the ad.

‘A Victimless Crime’?

Cullen, a Little Rock attorney, and Court of Appeals Judge Robin Wynne are vying for one of two open seats on the Arkansas Supreme Court. The Law Enforcement Alliance of America, a 501(c)(4) nonprofit based in Virginia, has run ads supporting Wynne and opposing Cullen on the issue of sexual predators.

The LEAA is no stranger to controversial attack ads. In 2008, a committee set up by the Mississippi Supreme Court condemned ads the group ran in that state as “violative of the Code of Judicial Conduct,” and urged that they be pulled from the air.

The ad attacking Cullen, which is called “Young Victims,” comes just days before the May 20 nonpartisan judicial elections. It is based on Cullen’s work as a court-appointed attorney to represent D’Andrea’s appeal of his sentence. Cullen did not represent him during the trial. In an email to us, Cullen recalled that D’Andrea’s trial attorney withdrew from the case and the Eighth Circuit Court of Appeals appointed him to represent D’Andrea.

The ad says, “Tim Cullen worked to throw out the sentence of a repeat sexual predator, arguing that child pornography was a ‘victimless crime.’ ” Later in the ad, it says: “Call Tim Cullen. Tell him to stop claiming these are victimless crimes. Predators belong behind bars.”

First, it is important to know that there were two sex crimes committed by D’Andrea — a fact omitted in the TV ad. D’Andrea pleaded guilty in 2005 to one count of possession of child pornography and one count of attempted enticement of a minor stemming from a police sting. Child pornography clearly involves victims, but the sting operation did not. Arkansas state police investigators posed as underage teenage girls online to gather evidence against D’Andrea. They arrested him after he flew from Denver, Colorado, to Little Rock, Arkansas, to meet and have sex with two people he believed to be teenage girls. Child pornography was found on his computer after his arrest.

In a phone interview, Cullen told us he was referring to the conviction for attempted enticement of a minor, not child pornography, when he wrote the phrase “a victimless crime” in his brief. There is some support for that interpretation. In his brief, Cullen twice uses the term “a victimless crime” — the singular noun “crime,” rather than plural “crimes.” A third time he uses the phrase “there was not an ‘actual’ victim.”

The appeals court, in affirming the lower court ruling, believed that Cullen was referring to both sex crimes when using the phrase “a victimless crime” and admonished the defendant for it.

In its Jan. 10, 2007, ruling, the court wrote: “Defendant argues that his crimes were victimless, his family (including two daughters) will suffer if he is not allowed to support them, and his age (fifty-six) and his state of health militate against a long sentence. The claim that his crimes were victimless is specious at best. Although his crimes did not involve an individually identifiable victim, the inability to identify a child shown in pornographic images does not make the possession of child pornography a victimless crime.”

Notice that the court says the “[d]efendant argues that his crimes were victimless.” But, again, Cullen used the singular word “crime.” He told us he was disappointed with the court’s response, because he felt it was obvious that he was referring to the police sting and not the child pornography. “All I can say is that common sense would prevent anyone from saying that child pornography is a victimless crime,” he said.

We don’t know what Cullen meant to say when he wrote his brief. But neither can LEAA. What we can say is that the ad’s words — “child pornography was a ‘victimless crime’ ” — do not appear in the brief. It is an interpretation of what Cullen wrote, and not what he actually wrote. That important distinction is lost on the viewer, who isn’t told that the defendant was indeed charged with a victimless crime and that crime may have been the antecedent.

The ad also says Cullen “worked to throw out” D’Andrea’s sentence and adds, gratuitously, that child predators “belong behind bars.” That’s misleading. D’Andrea was going to serve prison time even if Cullen was successful in his appeal, so any suggestion that Cullen was trying to avoid prison time for D’Andrea is nonsense.

Here are the facts: The trial court departed upward from the federal guidelines in granting the government’s request for a stiffer sentence. As Cullen’s brief explains it, D’Andrea was sentenced to 180 months, or 15 years, in prison for one count of attempted enticement of a minor and 120 months, or 10 years, on one count of possession of child pornography. The sentences run concurrently, so D’Andrea was effectively sentenced to 15 years. Cullen said in his brief that the sentencing guidelines called for a sentence of between 78 months to 97 months. Even if Cullen won his argument, his client would have served at least six and a half years in prison.

We sought to interview someone at LEAA about this and other claims without any luck. Instead, we received a lengthy, unsigned email response from “LEAA staff” that continued to take material from Cullen’s brief out of context. When we asked about the false suggestion that Cullen was seeking to avoid jail time for D’Andrea, LEAA replied: “We reported on facts from the official record. We stand on the words and record and in agreement with the court that ruled against those assertions/arguments in the Cullen appeal seeking to avoid (or reduce) jail time; we are strongly in favor of not letting serial pedophiles out earlier.”

Again, Cullen was not “seeking to avoid” jail time for D’Andrea, who is currently serving his sentence in a federal prison in Littleton, Colorado. He is scheduled to be released in April 2018.

Cullen’s Response: It’s ‘A Lie’

Cullen responded to the attack ad with an ad of his own. It’s a straight-to-camera response ad in which Cullen says, “The attack ad you see against me is a lie and my opponent knows it.”

A “lie” is an intentional deception, and Cullen can’t prove intent. But, as we said, the LEAA ad attacking him is misleading.

As for Cullen’s opponent, there is no evidence that Wynne had anything to do with the ad, so mentioning him leaves the false impression that he or his campaign was involved. In fact, the Wynne campaign distanced itself from the ad one day after it ran. The campaign posted a statement on its Facebook page on May 10 saying it had no “knowledge or involvement with this purchase or the subject matter of the commercials.”

Lastly, Cullen says, “I do not and have never believed that child pornography is a victimless crime.” There is no evidence that we have seen that suggests he believes otherwise.

In the end, the LEAA attack ad is beyond the pale. It comes at the 11th hour and distorts the record in a blatant appeal to fear and emotion. It is funded by special interests, but we don’t know the real intent of those behind the ad, because the group does not have to disclose its donors. This kind of attack has become all too common in races for the legislative and executive branches of government, but it is incompatible with the code of judicial conduct and has no place in judicial races.

— Eugene Kiely