The Free Press, Mankato, MN

September 14, 2012

Hoffner's attorney wants access to evidence

By Dan Nienaber
Free Press Staff Writer

MANKATO — An attorney representing Minnesota State University head coach Todd Hoffner was in court Friday morning asking a judge to give him more access to videos that resulted in child pornography charges being filed against Hoffner last month.

Jim Fleming has only been allowed to watch the three videos once at the Blue Earth County Sheriff's Department while a deputy was present. Fleming has asked for a copy of the compact disc so he can review the evidence more closely, but Assistant Blue Earth County Attorney Mike Hanson has denied the request.

"I need this information to prepare for hearings and trial for my client," Fleming told District Court Judge Krista Jass. "There's also important sound information, which we may want to dispute, because it's misinformation or inaccurate."

The three videos, which show nude images of Hoffner's three young children, were found on a cellphone that had been provided to him by the university. They were discovered after Hoffner brought the phone to the university's Information Technology Department for repairs. The children are between the ages of 5 and 9.

University officials initially turned the videos over to the Mankato Department of Public Safety and placed Hoffner on administrative leave. The case was later turned over to the Blue Earth County Sheriff's Department because it was determined the videos, one of which allegedly shows Hoffner's son fondling himself and his two daughters spreading their buttocks for the camera, was created at the Hoffners' house in Eagle Lake.

Hoffner was arrested by sheriff's deputies when his house was searched Aug. 21. Two computers and a second cellphone were confiscated during the search.

In response to Fleming's request for video copies, Hanson said state and federal laws, including the federal Adam Walsh Act, make it illegal to reproduce child pornography. Both sides cited challenges to the act, which also requires prosecutors to make the evidence "reasonably available" to defense attorneys.

Hanson said allowing Fleming to view the videos at the Sheriff's Department was enough to make the videos reasonably available. Fleming said having a law enforcement officer in the room with him while he's attempting to prepare a case for his client isn't reasonable. Fleming also said, if more evidence is pulled from the home computers and second cellphone, he will likely need to have it reviewed by an expert witness.

There have been other child pornography cases in Blue Earth County where defense attorneys have received copies of evidence along with a protective order issued by a District Court Judge. Jass asked Hanson specifically about exceptions that have been allowed with protective orders. Then she said she will consider the arguments made by both sides before issuing a written order.

"There have been protective orders before in this county," Fleming said after Friday's hearing. "He (Hanson) is just doing this because he can."

After Hoffner was arrested, his wife, Melodee, made a public statement about the case at the Maschka, Riedy and Ries office where Fleming is employed. During the statement, she and Gerald Maschka, who also attended Friday's hearing with Todd Hoffner, said the videos were depicting innocent family moments and were not child pornography. Maschka said then they were, "normal and typical family videos showing her children having fun and acting silly."

An affidavit, filed earlier this month, requesting a search warrant for a university computer suggests the most graphic video wasn't of children acting spontaneously. The computer, which was turned over to investigators Sept. 5, was used to download files and other information from Hoffner's phone before the videos were found.

Deeann Snaza, MSU assistant director of human resources, had told investigators  there was another video on the telephone that showed the children doing a skit that was similar to one of the other videos, except they were wearing clothing. That affidavit also reveals audio, which Fleming was possibly referring to during Friday's hearing, from one of the girls and an adult male voice in the video where the girls expose their anuses and the boy fondles himself.

"The audio has a portion where one of the juvenile girls says, 'Dad, that's not the show, make him do it right,'" the affidavit says. "The male voice says, 'Do it over.'"

Hanson declined to comment after Hoffner's hearing Friday.