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Defense win! Restitution award vacated for lack of causation evidence

State v. David L. Tarlo, 2016 WI App 81; case activity (including briefs)

When’s the last time you saw a defense win on a restitution issue? This child porn case addresses the vexing problem of circuit courts awarding restitution though the victim failed to prove that her losses were “a result of a crime considered at sentencing” as required by Wis. Stat. §973.20(14)(a)

Tarlo pled guilty to possession of child pornography in relation to 5 images found on his computer. The circuit court ordered the him to pay the mother of the child alleged to be in one of those images $10,000 in restitution for her “lost income.” The mother claimed that she lost income when her husband was convicted and incarcerated for producing child pornography (including the image of their daughter that Tarlo allegedly possessed). His incarceration forced her to quit her job so she could supervise their children and take them to treatment. Thus, she lost his income and her own income.

The court of appeals held that the mother failed to prove that Tarlo’s crime (viewing child pornography) was a “substantial factor” in causing her damages. State v. Johnson, 2002 WI App 166, ¶7, 256 Wis. 2d 871, 649 N.W.2d 284.  “It is a ‘bedrock principle’ that restitution should reflect, and a defendant should be made liable for, ‘the consequences of the defendant’s own conduct,’ ‘not the conduct of others.'” Paroline v. United States, 134 S. Ct. 1710, 1725, 1729 (2014). Slip op ¶7.

¶9 . . .The evidence established that the income was lost due to the husband’s earlier production of child pornography and related arrest and incarceration; no evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter’s image by Tarlo or others caused any of the income loss for which the mother sought restitution. See WIS. STAT. § 973.20(14)(a).

The court of appeals distinguished Paroline (see our post here), which involved a federal statute allowing a victim of child porn to recover restitution from the possessor of a pornographic image as long as the victim’s losses are the result of trafficking in the image. The victim in Paroline sought the cost of treatment and lost income resulting from the trauma of knowing images of her abuse were being viewed over and over. In Tarlo’s case, “there simply was no evidence presented of income lost or treatment costs incurred, or of income that will be lost or costs that will be incurred, as a result of Tarlo or others viewing and possessing the daughter’s image.” ¶15

Note that the court of appeals vacated the restitution award. It did not remand the case for another restitution hearing:

[A] full and fair restitution hearing has already taken place, in which the mother had the unrestricted opportunity to, and in fact did, present evidence of her losses. In addition, she was assisted by the State and court commissioner in the presentation of that testimony. We further note that “[d]ouble jeopardy protection applies to restitution orders,” State v. Greene, 2008 WI App 100, ¶15, 313 Wis. 2d 211, 756 N.W.2d 411, and thus, without deciding the question, we observe that the legal propriety of ordering a “do-over,” as Tarlo calls it, is questionable. ¶19.

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