Lawyer lauds appeal ruling
The lawyer for a former high school coach accused of possessing child pornography said his client is ecstatic that an appeals court overturned his federal court conviction and saved him from 18 months in prison.
Robert Mielnicki, attorney for David Zimmerman, a former Vincentian Academy-Duquesne University boys basketball coach, said both he and his client were pleased with the decision of the Third Circuit Court of Appeals, which voted 2-1 Friday to overturn Zimmerman’s federal conviction for possession of child pornography because the search warrant was invalid.
Paul Brysh, assistant U.S. attorney for the Pittsburgh district, said his office is examining the ruling. Normally, each side has 14 days to appeal a decision, but Brysh said he will file for an extension of that time limit.
Zimmerman 35, now living in Harrisburg, left his job at the school in December 1998 after allegations of inappropriate sexual conduct with members of the boys basketball team.
The allegations included one boy claiming Zimmerman showed sexually explicit photos to him and another youth, according to court documents.
Based on this accusation, McCandless police in March 1999 obtained a warrant to search Zimmerman’s house for adult and child pornography. Authorities said several images of child pornography were found in the home, and Zimmerman was charged with possession of child pornography.
Zimmerman pleaded guilty in October 2000 to the charge of possession of child pornography but reserved his right to appeal the validity of the search warrant. He was sentenced to 18 months in federal prison but did not have to serve any time pending the appeal.
Mielnicki argued Oct. 17 before three appellate judges that the allegation of Zimmerman possessing adult pornography was not enough evidence to warrant a search of his North Side home.
McCandless police officers searched Zimmerman’s home after a former Vincentian Academy student identified as John Doe No. 12 told police that Zimmerman had shown a sexually explicit video clip to him and another student, identified as John Doe No. 13, according to court documents.
However, John Doe No.13, told police he did not remember being shown pornography at Zimmerman’s home. But when McCandless police talked with the mother of John Doe No. 12, she said her son viewed the video on one occasion and that boys known as John Doe No. 1, No. 4 and No. 8 viewed it on a separate occasion at Zimmerman’s house.
“They based the affidavit (for the search warrant) on three sources or hearsay, and probable cause cannot be substantiated with hearsay,” Mielnicki said.
McCandless police Chief Gary Anderson declined to comment and deferred any questions about the judgment to the U.S. attorney’s office.
The judges also ruled that the there was no evidence that Zimmerman possessed child pornography based on the showing of the video clip to the students.
While Mielnicki challenged the validity of the search warrant, he acknowledged Zimmerman did have child pornography in his house.
“My client had no use for the pornography and is disgusted of it just as much as you or me,” Mielnicki said. “He did not bring it into the house.”
Mielnicki said Zimmerman allowed many students to visit his house and one of them could have downloaded the child pornography as a joke.
During the investigation, Zimmerman also was charged with two state counts of corruption of minors, two of simple assault and one of corrupting the morals of a youth. The Allegheny County District Attorney’s Office later dropped most of the charges as part of an agreement in which Zimmerman pleaded no contest to corrupting the morals of a youth. He was sentenced on Jan. 15, 2001, to one year of probation.
Zimmerman now works as an events coordinator for a private company in Harrisburg. He could not be reached for comment yesterday, and Mielnicki said Zimmerman would not comment while federal prosecutors are considering whether to appeal the federal court ruling.
Parents of students involved in the case are suing Zimmerman, Vincentian Academy-Duquesne University and Duquesne University. No trial date has been set for that civil suit.
Officials with Vincentian Academy-Duquesne did not respond to telephone messages Monday seeking comment.
Mielnicki said Zimmerman is filing a countersuit against the parents for malicious prosecution because of their communication with investigators that led to the search. Zimmerman is not suing the McCandless Police Department, Mielnicki said.
” He is trying to get back on his feet. He has gone through several lawyers, and at one time, he was broke” Mielnicki said. “No matter what, he will never work as a teacher or coach again.”