Attorney Ben Urbelis Law – Wairi not guilty of production or attempted production of child pornography

A federal jury of 10 men and two women returned a verdict of not guilty this morning on three counts of production of child pornography and attempted production of child pornography in the case of Josh Wairi, the Graham & Parks school teacher arrested in April 2014.

The jury found Wairi guilty of possession and transportation of child pornography – charges he admitted to – after deliberating Friday afternoon and a little over an hour this morning. They had Monday and the weekend off and reached a verdict at 10:30 a.m.

The result is the best possible outcome for Wairi and his defense team, J. W. Carney and Benjamin Urbelis. Defense lawyers argued that Wairi’s filming of naked fifth- and sixth-grade students in the shower at a 2011 school class trip to Nature’s Classroom in Yarmouth Port, Mass., did not qualify as child pornography because while the videos were reprehensible and illegal, they were not sexually explicit and therefore did not qualify as child pornography.

The jury also found Wairi not guilty on attempted production of child pornography, because he recorded what he wanted to record – to be found guilty, the jury would have to have found he wanted more than what he got. Wairi also recorded video with a cellphone camera in the locker room of the Kennedy Pool in Somerville. At the time Wairi was a school teacher at the Healey school in Somerville.

Wairi’s videos were focused primarily on the midsection of the boys he recorded. The children were not readily identifiable in the videos that the government showed to the jury, and government witnesses said that the heads of children were cut off in the videos. “You could almost never see the head,” prosecutor Susanne Sullivan Jacobus said in her closing arguments to the jury Friday.

The government presented no evidence that Wairi shared or uploaded he videos he created. The basis of Wairi’s transportation of child pornography conviction was the sharing of images he had obtained from other sources, including a Russian image-trading website.

Judge William G. Young set Wairi’s sentencing hearing for 2 p.m. July 29.

Young will also hold a hearing at 2 p.m. May 15 to consider the government’s request for a harsher sentence because Wairi was a caretaker of children; because the pornography Wairi possessed involved some minors under the age of 12; and because that pornography may have portrayed “sadistic or masochistic conduct or other depictions of violence.”

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