Judge expected to be witness after search warrant in Portsmouth child pornography case can't be found
Jerome Steffan, 49, who is facing more than 80 charges related to possessing child pornography, objected to prosecutors calling 10th Circuit Judge Sharon N. DeVries, saying that evidence in his case should be thrown out due to the missing warrant.
Steffan also argued that the search warrant was invalid because police waited nearly two years before conducting a forensic search of his computer.
Judge N. William Delker said he will make a decision about Steffan's claims once he hears testimony from DeVries. A hearing date has not been set. Steffan is scheduled for trial the week of April 15 in Rockingham County Superior Court.
Delker heard some testimony at a hearing in January related to the search of Steffan's computer. But the matter was put off when defense lawyer Howard Gross complained that he was never given a copy of an affidavit related to a search warrant filed in February 2009.
DeVries granted a request by police for a search warrant on Feb. 24, 2009, for Steffan's current and former home in Portsmouth, authorities said. A day later, the judge expanded the warrant - at the request of police - to include Steffan's car.
The application for the warrant, an appendix, an addendum and a return were all filed at the Portsmouth courthouse, according to Delker. But no affidavit to accompany the search warrant could be found afterwards.
At a hearing in January, Portsmouth police Detective Timothy Cashman testified about presenting his warrant to the judge for approval but "he did not know what Judge DeVries did with that paperwork or why it was not filed with Portsmouth District Court," Delker said in a court order.
Delker refused to let prosecutors offer statements about what DeVries considered when granting the search warrant or what she might have done with the paperwork. But he allowed prosecutors to call the judge as a witness at a later hearing. Prosecutors sent DeVries paperwork related to the case in hopes of refreshing her memory prior to her testimony.
That drew an argument by Gross contending that DeVries should not be allowed to testify. He said in court papers that county prosecutors should have had no direct contact with the judge, suggesting it was a violation of the Code of Judicial Conduct.
Delker described that claim as "absurd," saying DeVries was simply another witness and no longer had any role in the case since the matter was transferred to superior court. Prosecutors are allowed to use witness testimony when court paperwork gets lost or is missing, Delker said.