In State v. Al-Khayyal, the defendant was indicted on 49 counts of sexual exploitation of children in Clayton County Superior Court based on the discovery of computer files containing images of child pornography on his laptop computer. The files had been previously deleted, however, some of them remained stored in the unallocated space of the hard drive. The Georgia Court of Appeals held that the evidence left a question as to whether Al-Khayyal knowingly possessed a portion of the files that still remained in the trash folder and, as a result, the issue of whether he possessed those files could be submitted to a jury.
Al-Khayyal, a professor at Georgia Tech, became the target of a child pornography investigation while he was working abroad in China. Upon his return, immigration officers detained him at the Atlanta airport and seized his laptop computer. A forensic examination of the computer revealed 29 digital files with sexually explicit images of young girls which had been deleted and emptied from the trash folder to the unallocated space of the hard drive, making them inaccessible to the user. The computer also contained 20 files which had been deleted, but still remained in the computer’s trash folder in a compressed format. In this format, the files could not be viewed without a program which was not loaded onto the computer but which a computer expert testified was readily available to the public and could be used without specialized training.
In order to sustain a conviction for possession of child pornography under Georgia law, the State must show that the defendant knowingly possessed not only the computer, but the pornographic images. In order to establish possession, it must be shown that the person had the ability and intent to exercise dominion and control over the images.
The Court agreed that possession could not be established for the 29 files that had been deleted from the trash folder but remained in the unallocated space of the hard drive. The Court, however, held that the facts were sufficient to establish possession of the 20 images that remained in the trash folder. In support of this conclusion, the Court emphasized the fact that the software which made viewing possible was readily available to the public. There was no evidence presented that the files were or could have been saved to the defendant’s computer without his knowledge, so the Court found that the evidence authorizes the inference that they were saved there deliberately. The Court points to the fact that Al-Khayyal deleted the files, thereby showing that he “actively manipulated” them. According to the Court, this supports an inference that he was aware the files were saved to his computer’s hard drive. Further, the Court stated that the fact that some files were deleted from the trash folder and rendered inaccessible indicated that the defendant knew that deleted files were moved and stored in the trash folder. The Court also noted the presence of “uncompressing” software, though not the kind needed to uncompress the files in question, as evidence to support an inference that the defendant knew about the kind of software needed to view the files.
The conclusion to draw from this decision is that in child pornography cases in Georgia, the courts will typically consider the trash folder or recycle bin to be within a person’s dominion and control for purposes of establishing possession. To combat this, defense attorneys will need to focus on the circumstances surrounding the deletion of the files to show that the person lacked the intent to ever retrieve the files in the future.