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Utah Supreme Court: Prisoner had First Amendment Defense for Questionable Jail Correspondence to Minor Daughter

On June 19, 2017, the Supreme Court of Utah reversed a jail prisoner’s convictions for dealing harmful materials to a minor, which consisted of two letters he sent his 5-year-old daughter from jail, holding his attorney had been ineffective for failing to assert a viable First Amendment defense.
While in jail, Eric Leon Butt, Jr. composed two letters to be sent to his daughter, but they were intercepted by jail officials. They were handwritten notes with crude drawings. The first one said, ‘“Well, I know you want me to draw my whole body, but I can’t draw very well so this will have to work.’ The drawing was an unskilled, hand drawn picture portraying [Butt] naked. While the drawing was rough, it depicted [Butt’s] nipples, chest hair, pubic hair, penis, and testicles.”
The second handwritten letter said, “‘Hi beautiful girl. I miss you so much. I can’t wait to bite your butt cheek. This is what it will look like. I love you.’ Below this note, [Butt] had again roughly sketched a picture of himself naked. This picture was even more rudimentary than the initial drawing. But it portrayed [Butt’s] nipples, penis, and testicles. This time, however, he was holding his daughter up with her bottom next to his mouth. A speech bubble from his mouth read: ‘Oh, your butt taste [sic] so good.’  And a second speech bubble from his daughter’s mouth read: ‘Oouch Daddy don’t Bite so hard Giggle, giggle.’”
During the trial, Butt testified that he and his daughter had watched a documentary about cave drawings of naked people and she had asked him to draw a similar picture of himself, which was the first drawing. In justifying the second drawing, he said his daughter liked to be tickled. “So as a part of her bedtime routine he holds his daughter’s hands up in the air and nibbles all over her stomach, while she laughs. To escape the tickling, she rolls over from her back to her stomach. At this point, [Butt] teases her saying, ‘roll back over or I’m going to bite your butt cheek’ to which his daughter responds by rolling over.” He said biting her was an empty threat, and he did not remember ever actually biting her.
Butt was convicted and appealed based solely on the sufficiency of the evidence. His conviction was affirmed and he filed a state petition for post-conviction relief alleging ineffective assistance of counsel. The trial court noted that the State had stipulated to the vacatur of his initial nude drawing, but maintained Butt had suffered no prejudice because there was no viable First Amendment defense for the second drawing. The court agreed, denying post-conviction relief on that count. Butt appealed.
The Utah Supreme Court noted that whether the drawing was pornography hinged on whether it appealed to a prurient interest in sex. The court found it to be a close matter. However, the only evidence providing a context for the drawing was Butt’s testimony as the State had offered no evidence on the matter. In light of the testimony, the court concluded that the drawing was not sexual or sexually suggestive, and accordingly did not appeal to a prurient interest in sex. Thus, defense counsel was ineffective for failing to raise a First Amendment defense that would have been successful. Therefore, the court reversed the trial court’s judgment and vacated the conviction. See: Butt v. State, 2017 UT 33

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Related legal case

Butt v. State