How Should a Teacher Charged With Child Porn Be Punished?

This is a partial transcript from "The O'Reilly Factor," September 19, 2006, that has been edited for clarity.

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BILL O'REILLY, HOST: In "The Factor Follow-up" segment today, Massachusetts high school science teacher, 42-year-old David Berglund, was arrested on September 1 by the FBI and charged with — are you ready — possessing 10,000 pictures of young boys ages 16 to 14 in sexual displays.

If convicted, Berglund could get 10 years in prison. But some believe the possession of child pornography doesn't warrant that kind of punishment.

With us now is former sex crimes prosecutor, Massachusetts child advocate Wendy Murphy, and attorney Jeffrey Nathan, who is representing David Berglund.

All right. You're going to know tomorrow — you'll probably plead this case out. Can't take it in. They got him. Unless you can get a procedural error or a warrant error. You don't have that right now, do you?

JEFFREY NATHAN, ATTORNEY: No.

O'REILLY: OK. See, the guy is guilty. He had this stuff. The judge is going to have to decide what to give him, because you're going to plead it out. So you're the judge, counselor. Now come on. You're the judge. What do you give the guy?

NATHAN: All right. I'm going to give him 90 days in jail, 90 days to six months committed, to be followed by 10 years of supervised release. That's what they call it in the federal system.

And I'm going to make sure that he passes a polygraph every three to six months, that he stays away from children and high schools and playgrounds and parks. I'm going to polygraph him before I take a plea to determine whether or not he passes, whether or not he ever touched, in a sexual manner, a child. I'm going to give him that brief sentence.

O'REILLY: You're going to require him, as a federal judge, to take a polygraph before you sentence him to see if he's acted out on his voyeurism. Is that correct?

NATHAN: Yes, I'm going to offer a defense polygraph. I'm going to take that risk for him.

O'REILLY: That sounds logical, 90 days. It sounds that you're going to supervise this guy. This is the Vermont argument, that society gains nothing by keeping him incarcerated.

But here is the flaw of your thinking, counselor, with all due respect. I think punishment should be a deterrent for having child pornography, that you should send a message to people who have it because kids have been abused to make it. That if you even have it, you're going to go to jail for five years.

That way these guys who traffic and buy it — because if nobody bought it, it wouldn't exist, OK? They say is it worth me going to jail for five years?

See, I would have it mandatory. You've got to go for five as a deterrent. Where am I wrong?

NATHAN: Deterrent sounds nice, Bill, but the issue is the fact is that the lure, when someone has this illness, and it could be mental illness, and the lure is so strong.

O'REILLY: They can't stop it. They can't...

NATHAN: They can't help it unless they are on probation. Jail is not the answer. Give them a taste of jail.

O'REILLY: Now if that's true, if they can't help themselves, they have to. Then when this guy gets out in 90 days, and then do it again. Is he not?

NATHAN: I would suggest not, because he's going to be on, as I said, supervised release.

O'REILLY: But he has to...

(CROSSTALK)

O'REILLY: So now he's going to jump out the window and just grab some kid.

NATHAN: We had him reviewed medically to determine whether or not, you know, he's really that dangerous. Most of the times your sort of soft pedophile is really not a dangerous person. They just think wacky.

O'REILLY: All right. Wendy doesn't like that. What say you?

WENDY MURPHY, CHILD ADVOCATE: You think? It's very disturbing to hear anyone suggest that this isn't a serious crime, that, you know, a few months in prison...

O'REILLY: The counselor didn't say it wasn't a serious crime. He just doesn't think in Vermont people don't think that it serves society to have this guy in prison.

MURPHY: Yes, but if you think 90 days is enough then you don't think it's a serious crime. And not only is it certain that children be raped and abused and in this case we're talking about whips and torture.

And that's the kind of photography we're talking about. This isn't some sort of, you know, little boy on the beach without clothes on. Whips, S & M stuff with very little boys.

And real kids suffer terribly when they are used to make this. As you pointed out, if there were no buyers, there wouldn't be any makers. And then the thing people really don't understand is, despite what Jeffrey just said, there are studies that say that 75 percent of people in prison for kiddy porn admit raping children, dozens of them.

O'REILLY: He's giving the guy a polygraph if he's the federal judge. Can a federal judge do that, by the way? Can they order the guy to take it? I guess they can't order him, but if he doesn't take it, then they can up the sentence. Right?

NATHAN: I'm going to offer this. As a defense lawyer, I'm going to say, "Judge, look, I brought a polygraph."

O'REILLY: Are you are going to do that?

NATHAN: Absolutely.

O'REILLY: Are you going to do it tomorrow to try to convince a judge this guy has never acted on it?

NATHAN: Absolutely.

O'REILLY: If he flunks you're in deep you know what.

NATHAN: Well, we take risks in this business every day.

O'REILLY: All right. Well, you're on "The Factor".

NATHAN: That's a risk.

MURPHY: The polygraph is not the issue. It's not scientifically valid enough. He'll bring some hired gun he's going to pay a boatload to to say "X" is "Y" and up is down and black is white. It's not going to matter. It shouldn't matter. It shouldn't be at the bargaining table.

We need to talk about the fact that people who use kiddy porn almost always rape children, and people who rape children almost always use kiddy porn. It's part of the process.

O'REILLY: But our system says that you're arrested for a certain offense. And even though you have stats to say that certain offense may have led to something else, you can't convict a guy on a may. You've got to have the evidence.

So the evidence is that this guy is a hard-core pedophile with this material in his possession. Do we know where it came from, by the way?

NATHAN: From search engines they search, and they lawfully buy it. They plunk down their credit card and they really don't think...

O'REILLY: But we don't know where it came from, Denmark or Thailand?

MURPHY: It really doesn't much matter, because you know it is a $40 billion a year industry.

O'REILLY: Well, it would matter to me, because if I could find out where it came from and you could tell me, then I'd got get this guy.

MURPHY: I would give this guy a discount if he would rat out the big guy. I might give your guy something...

NATHAN: The feds go after the little guy because they're a lay down. They come into their house. They give them everything they want, and then the producers and manufacturers, they've got a wall. They're insulated. They don't go after them.

O'REILLY: Well, they're overseas. They're overseas.

MURPHY: That's not true. There's a lot going on in this country.

O'REILLY: But she's right. But she's right. If the guy knew who was making and manufacturing this, then as a judge I would give the guy a break and say, "Give me this guy."

But don't say the feds kick the guy's door — if he's got 10,000 pictures, he not only deserves to have his door kicked in — he deserves to have his house burnt down. I'm not feeling sorry for this guy.

NATHAN: I do.

O'REILLY: You do?

NATHAN: Yes. I do.

O'REILLY: Wait, wait. You feel sorry for this guy?

NATHAN: I do. You know why? As the chief of police said to me, he gave me a letter saying there's no evidence that he ever touched anyone.

O'REILLY: It doesn't matter. He had 10,000 pictures of kids being abused.

NATHAN: So what? He's looking at them in his house and enjoying them in his house. Why is that a big deal? He's alone in his home. He said to the FBI agent when they came in, "I watch them. I'm alone. I don't do anything."

O'REILLY: It doesn't matter. The kids were abused for his enjoyment. Don't you get that?

NATHAN: That's in another country.

O'REILLY: It doesn't matter. If he didn't do it, there wouldn't be another country manufacturing it.

NATHAN: One guy, you're going to put one guy in jail?

O'REILLY: Yes, I am.

NATHAN: To protect the children?

O'REILLY: I'm going to put all the guys I find in jail. And the women, too.

NATHAN: Where are you going to house them?

O'REILLY: You know, you started off reasonable, but you collapsed.

All right. Now you're the judge. Oh my God, see this woman's picture should be on every billboard saying if you have child porn or do anything she's going to give you the sentence. What do you give them?

MURPHY: Yes. Look, the maximum and then some. I'd give him a certain sentence times 10,000.

O'REILLY: Really?

MURPHY: I absolutely would whack him, because this is hard stuff to get. You know?

O'REILLY: You'd give this guy 10 years?

MURPHY: I would give him 10 years. And you know why? Because I think it matters that we find this stuff so infrequently. When you finally catch a guy — and it's a big one — 10,000 pictures is a lot. And they are kids with whips and being brutalized.

O'REILLY: Yes.

MURPHY: Well, we have to talk about how ugly it is. I would make a big show about it. I would send a message. And I'd say this is how we're going to treat you and we're going to hunt you down.

But you go soft on this guy, you just sent a message to that $40 billion industry that it's OK.

O'REILLY: OK. How did they get this guy?

NATHAN: Well, there's an FBI team, the national team staffed in different areas in the United States that is tracking for individuals who are purchasing child pornography from the vendors.

O'REILLY: Did they sting him?

NATHAN: No they just came and knocked on his door.

O'REILLY: So they knew by his credit card or whatever he was using he was buying?

NATHAN: There was a false allegation against my client down the town that he lives in, and then they passed it off to the feds. The feds come and knock on the door, and he coughs up everything that he has.

MURPHY: That's not fair. You should not misstate what — you're talking — look, the guy was taking pictures of kids, video and photographs.

O'REILLY: Yes, but he denies that happened.

MURPHY: But then he was touching their backs and touching their legs. That's part of the grooming process. There doesn't matter if it was sexual. That's dangerous stuff.

O'REILLY: So Wendy Murphy says 10 years, and the counselor says 90 days. And I want to know what you think. All right. So e-mail me tomorrow and tell me what you'd give this guy. And then when this is adjudicated let us know, and we'll tell everybody what the guy gets from the system.

NATHAN: We will.

O'REILLY: All right. Thanks very much for being here. We appreciate it. Very interesting segment.

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