NY court objects to judge's child-porn gene theory

NEW YORK – A federal appeals court removed an Albany judge from the resentencing of a man in a child pornography case Friday, saying he was wrong to let his theory that a gene causes child porn consumption to affect his sentencing decisions.

The 2nd U.S. Circuit Court of Appeals in Manhattan said U.S. District Judge Gary Sharpe erred in citing his theory as he sentenced Gary Cossey to 6 1/2 years in prison. It also took the rare step of ordering a resentencing by another judge.

The appeals court said Sharpe had rejected two separate psychological evaluations that had found Cossey was at a low-to-moderate risk to re-offend, saying the evaluations of psychologists and psychiatrists about the potential threat Cossey poses are "virtually worthless here."

The judge predicted Cossey's conduct a half century from now would likely be discovered to be caused by "a gene you were born with." The appeals court said Sharpe added: "And it's not a gene you can get rid of."

A three-judge appeals panel said Sharpe said he believed that therapy for Cossey "can only lead, in my view, to a sincere effort on your part to control, but you can't get rid of it. You are what you're born with. And that's the only explanation for what I see here."

Lawyers for the government and for Cossey did not immediately return phone messages for comment Friday.

Sharpe, reached by phone in his chambers, said he could not comment because the case was still before him until the appeals court formally issues a mandate. That process usually takes a few days.

The appeals court said it was all right for the judge to consider the likelihood that Cossey would commit a similar crime again but not to base his decision on his "unsupported belief that Cossey was prevented from controlling his behavior due to a genetic inability to do so."

In a plea deal, Cossey had pleaded guilty to possessing child pornography after it was found on his computer between Sept. 13, 2003, and Oct. 14, 2005. The plea deal gave him the right to appeal any sentence greater than four years and nine months in prison. Sharpe issued the 6 1/2-year sentence on Dec. 3, 2009, and imposed a life term of supervised release once the prison term was over.

The appeals court said it must order a resentencing because the judge relied on his own scientific theories to sentence Cossey.

"The court's belief that Cossey was genetically incapable of controlling his urges affected the court's decision to sentence him to imprisonment, to impose a prison term that is lengthy, and to order him to submit to supervised release for life, all of which affect Cossey's substantial rights," the appeals court wrote.

The appeals court said it also must order that a different judge handle the resentencing because the extent of the discussion concerning Cossey's genetic predisposition to re-offend "has raised serious concerns over the objectivity of the judge in resentencing Cossey."