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Former editor pleads guilty in porn case

Original post made on Jan 22, 2010

Brian Bothun, a former editor for the Palo Alto Daily News and former reporter for the Daily Post, pleaded guilty to a misdemeanor charge of possession of pornography on Friday, Jan. 22, said San Mateo County Chief Deputy District Attorney Steve Wagstaffe.

Read the full story here Web Link posted Friday, January 22, 2010, 5:50 PM

Comments (21)

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Posted by LOUISE
a resident of Atherton: other
on Jan 22, 2010 at 6:48 pm

Sound familiar anyone??
Resident editor makes police mad for printing things they don't want us to be thinking about
and abra cadabra porn is discovered.
Quick!! Lets distroy this guys credibility.
Somebody give the ex finance director a call

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Posted by Yay
a resident of Menlo Park: other
on Jan 22, 2010 at 7:51 pm

[Portion removed; disrespectful language] I have seen (Bothun) at Barone's near Keplers taunting the cops trying to get them to do something to him. He especially hates the Atherton Police. Shameful. He [portion removed] has thrown stones from his glass house for far too long. Yeah...the cops put porn on his computer and cops in two different counties conspired and arrested him three times for dope. Give me a break. Good riddens to bad rubbish. Throw the book at this guy. Wake up Louise.

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Posted by Michael G. Stogner
a resident of another community
on Jan 22, 2010 at 9:06 pm

Louise, I did find this post from a couple years back.

If my memory serves correctly, I believe this is the same fellow who as a Daily News reporter uncovered all kinds of wrongdoing by Atherton's former police chief and eventually exposed the chief for voter fraud. The chief was forced out and found guilty of some sort fraud. In a small town like Atherton I bet the remaining cops never forgot that...

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Posted by Michael G. Stogner
a resident of another community
on Jan 22, 2010 at 9:36 pm

2 other post from 2008

One wonders how many years the Atherton Police Department waited for a pretext to search Bothun's home. After Bothun took down the Atherton police chief, he should have moved to an undisclosed location. He was a sitting duck in Atherton.

Report Objectionable Content
Posted by c you around, a resident of the Ventura neighborhood, on Oct 8, 2008 at 7:09 am

Brian Bothen was also the reporter who wrote a front page story about the elderly 87 year old Palo Alto man who was defrauded by a younger, "care taker" woman who made hundreds of thousands of dollars of loans out on the man's home without his knowledge. She was arrested and exposed ( she had 17 fake identificaitons) but, sadly, the man still lost his home to the bank...........THAT story made a lot of people think........

1 person likes this
Posted by so sad
a resident of Atherton: West Atherton
on Jan 23, 2010 at 6:16 am

Brian was a great reporter, who defied his superiors at times. this really is a sad event.

1 person likes this
Posted by Michael G. Stogner
a resident of another community
on Jan 23, 2010 at 7:08 am

“The defense had two experts that they were bringing out to talk about computer-created images and how you can fool with the images that are on there,” Wagstaffe said. “We thought it would be better to do a plea bargain in the middle.”

Another way of saying this is, We knew all along that if this ever goes all the way to trial His experts could expose our evidence and potentially explain how it got there.

Because of all the Public knowledge about APD Criminal Computer Abuses in the past and the DA's Office and R.E.A.C.T. This case should be reviewed by the Board of Supervisors to assure the Citizens that the County Officers have faithfully performed there duties. Government Code 25303 the BOS has that DUTY to the citizens.

The majority of the public believes Steve Wagstaffe when he issues a press release about charges. Since 2001 I have notified the BOS it has come to my attention that several times
Steve has knowingly Overcharged people to help him get a conviction.

I think that is a BAD thing.

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Posted by Justice in San Mateo
a resident of another community
on Jan 23, 2010 at 1:30 pm

The timing of this plea deal is troubling as it probably indicates Wagstaffe knew that sooner or later, Bothun's lawyer was going to find out that the Atherton police department recently modified a police report after the fact to contain illegal charges, and a SMC judge expunged that report and really took the entire department to task on that very serious misdeed. Wagstaffe probably offered a better deal to Bothun than he normally would have as had the attorney for Bothun learned about this it could have been used to attach quite a bit of reasonable doubt to the charges against Bothun based on the APD's illegal actions. This all stinks.

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Posted by Thelma
a resident of Atherton: other
on Jan 23, 2010 at 2:22 pm

Mr. Stogner--Have you ever spent a moment to consider how upset the fox Is going to be when he finally Does figure out that his hen house has been playing him for a fool?? The feathers Will begin to fly. He is a really really busy guy. Like anyone else, he has to rely on people. While better judgement would have been nice, No one knows better than you, how sneaky those chickens are or how intoxicating a rotten egg can be. Did he ever really stand a chance of compreHENtion?
It's got to be excruciating for him to face----not to even mention, the worst timing imaginable.
As disappointed as I am in the DA I try to remember how painful it would be, to have to realize I been so manipulated and betrayed by the very officers he trusts and protects.
If he survives all of this, maybe he will have learned the hardest lesson of all of us out of this. The DA does not get to have friends, it's just too dangerous. He is alone with only Right and Wrong.

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Posted by Michael G. Stogner
a resident of another community
on Jan 23, 2010 at 2:59 pm

Thelma, If you are referring to James P. Fox our District Attorney as being played for a fool. I can assure he knows exactly what has been going on. He might be very busy, but its not with running our DA's office. I know for a fact because I was with a woman who reported the Deep Level of Corruption in the District Attorney's Office. So it's not like he wasn't warned.

July 2009 I posted a thread Steve Wagstaffe should resign, If Fox doesn't fire him, the Supervisors should investigate and take the correct action.

Web Link

I'm including 2 e-mails from Jim and Steve to Greg and Carlos 3 days after they were caught/detained and identified as Customers of Underaged Sex Alaves.

James P. Fox and Steve Wagstaffe
e-mail sent 4/25/07 10:47AM
Greg and Carlos
"I just want to let you both know how sorry I am for what you are going through with the media frenzy. It isn't easy getting beaten up in the media, but hopefully it will all be yesterday's news by tomorrow, If there is anything I can do to help or provide support, please know I am more than willing."
Hang in there.

e-mail sent 4/25/07 10:20 AM
Greg and Carlos
Just a quick word of support from me as you go through a difficult time. To those who matter, your decades of outstanding work in law enforcement are all that count and your integrity is not the slightest marked by the modern media's efforts to make a story out of a non-story. Hard as it is to think it now, remember it will be yesterday's news and irrelevant by tomorrow.

My positive thoughts are out there for both of you.

Again I say James P. Fox has not been manipulated by anyone

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Posted by and justice for all
a resident of Atherton: other
on Jan 23, 2010 at 3:54 pm

Wagstaffe knew he had a loser of a case. That\'s why he accepted a plea of a misdemeanor.

Bothun probably did the wise thing. Better to have a misdemeanor on his record than to have a felony conviction, go to prison and become somebody\'s \"girlfriend\".

The book is closed on this case. However the jury is still out on the Atherton Police Department.

Those who value our freedom owe a debt of gratitude to one of our own who has chosen to stand and fight.

He recently brought to light the the falsification of official police records.

His case will be one to watch.

If I was anybody who had rank in the Atherton PD, in the recent past, I\'d be polishing up my resume.

Better yet, I\'d be looking for a good criminal defense attorney.

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Posted by Wagstaffe = Problem
a resident of Menlo Park: Fair Oaks
on Jan 23, 2010 at 8:26 pm

Michael Stogner, that e-mail from Steve Wagstaffe to "Greg and Carlos" is incredible hypocrisy. He prosecutes Bothun for allegedly looking at pictures, but when his cop buddies actually try to partake in underage sex, he calls it a "non-story". Unbelievable. He also has no trouble prosecuting a coach who yelled at a couple of punks who were harassing him. Has this been brought to the attention to the Board of Supervisors?

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Posted by Michael G. Stogner
a resident of another community
on Jan 24, 2010 at 6:58 am

Wagstaffe = Problem, You asked.

"Has this been brought to the attention to the Board of Supervisors?"

Yes, July 22, 2008 I personally delivered the two emails to the Board of Supervisors
They were the last page of 6 page document. Copy to each member during a public meeting. The first 3 pages copy of my letter dated March 14, 2007 to Sheriff Greg Munks and UnderSheriff Carlos Bolanos, "I am formally requesting both of you to resign or retire from your positions as San Mateo County Sheriff Officers today." Page 4 was photo of the house in Las Vegas. Page 5 Letter from County Counsel Michael Murphy to me re: FOI request for e-mails. Page 6 the emails

I asked the Supervisor to join me as Citizens "please sign my letter and put in Munks's mailbox". I also stated for the record that I am against Human Trafficking of Under Aged Sex Slaves and my 4 highest ranking Law Enforcement Officials support it.

Sorry for the long answer.

Short answer Yes, July 22, 2008 Hand Delivered and discussed in Public Meeting.

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Posted by Doesn't add up
a resident of Menlo Park: Felton Gables
on Jan 25, 2010 at 1:42 pm

A plea bargain for a misdemeanor charge of possession of pornography? This can't be right. Supreme Court Justice Clarence Thomas wouldn't have made it through his senate hearings if this were correct. Each time he and his wife rented a porn movie, he was in possession.

We are a country of prigs. P-R-I-G-S, not pigs.

Can the Almanac clear this up. Possession of porn cannot be a crime, even a misdemeanor.

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Posted by Andrea Gemmet
Almanac staff writer
on Jan 25, 2010 at 3:20 pm

Andrea Gemmet is a registered user.

The section of the California Penal Code is PC 311.2(a) Sale or Distribution of Obscene Material.

This section includes production or possession of obscene materials with the intent to "distribute or exhibit to others." A first offense is a misdemeanor, and according to the DA's office, Mr. Bothun entered a no contest plea to PC 311.2(a).

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Posted by Just some info
a resident of Menlo Park: other
on Jan 25, 2010 at 6:13 pm

Pornography is not illegal. Certain types of pornography are illegal.

CA Penal Code(PC) 311.2: Sending or bringing into the state for sale or distribution; printing, exhibiting, exchanging or possessing within the state; matter depicting sexual conduct by minor; transaction with minor; exemptions.

"This section includes production or possession of obscene materials with the intent to "distribute or exhibit to others." A first offense is a misdemeanor, and according to the DA's office, Mr. Bothun entered a no contest plea to PC 311.2(a)." - Andrea Gammet

The key words are "obscene materials". Pornography, i.e. nude or sexual photographs or video, do not meet the CA Penal Code's definition of "obscene matter". It is more specific in it's defining criteria, as defined in CA Penal Code 311.

PC 311. Definitions
PC 311(a)"Obscene matter" means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes secual conduct in a patently offensive way, and that taken as a whole, lacks serious literary, artistic, political, or scientific value.
PC 311(a)(3)In determining whether the matter taken as a whole lacks serious literary, artistic, political or scientific value in description or representation of those matters, the fact that the defendent knew that the matter depicts persons under the age of of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.

PC 311.2(c) goes on to talk about matter which depicts the images of a person, under 18 years of age, engaging in or personally simulating sexual conduct. The Penal Code appears to have been over simplified in this comment stream, and is still much more complex than I have described.

I am confident that the Atherton police officers, who took this report, did not wait years for an opportunity to conspire with Brian Bothun's partner to plant child porn on his computer. If it was not his illegal material on the computer, a digital trail showing when and how the material made its way onto his computer could easily prove this conspiracy theory and a plea agreement would not be needed. Nor would the DA ever take it to trial, let alone file charges, if that type of evidence was ever presented. Despite any good qualities of his personality, character, or journalism, the guy was guilty.

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Posted by Candle Lighter
a resident of Atherton: West Atherton
on Jan 25, 2010 at 10:56 pm

Child porn only gets prosecuted at the state level when the charges are very weak and the federal government declines to prosecute. Possessing child pornography will get you five years in a federal prison, minimum, believe it or not. This laws were passed during the Bush administration and many judges have spoken out that the feel the punishment is totally out of bounds with the crime, but they have no choice but to impose it. I learned about this when I had a personal trainer who went to the federal pen for five years. I showed up for training one day and was told he was gone, and was flabbergasted to learn what for and how many years he would be spending in jail for just looking at pictures.

There was a press release in which Mr. Wagstaffe was quoted as saying that the pictures may not look like children to an ordinary individual, but he would produce experts who would testify (presumably based on public development, etc.) that they were indeed children. But PC 311 quoted above states that an "average person", not an expert, needs to be able to discern whether the material rises to the level of "obscene material". Not much of a case, in my view.

This is why the U.S. Attorney did not prosecute Mr. Bothun. If he had, the penalties (given a conviction) would have been MUCH more severe than the 204 day maximum jail sentence.

This may also cause people to wonder if this case ever should have been prosecuted in the first place, and if the prosecution motives were political.

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Posted by Michael G. Stogner
a resident of another community
on Jan 26, 2010 at 6:20 am

The District Attorney's Office is the most powerful office in San Mateo County. Steve Wagstaffe controls what charges are filed, who will be the DDA on the case. What gets investigated and what doesn't get investigated. He controls the media press releases with a per day e-mail to certain reporters, only cases he determines to be Newsworthy.

"To those who matter"
"modern media's efforts to make a story out of a non-story. Hard as it is to think it now, remember it will be yesterday's news and irrelevant by tomorrow."

[Portion deleted.]

The Brian Bothun case should at least be reviewed to assure the Citizens that Wagstaffe is doing the business of the DA's Office properly. Mr. Bothum was not your ordinary citizen, he could even qualify for Whistleblower status.

Don't forget it was Wagstaffe who wanted to settle this case. He made the offer, WHY?

Lets get these questions answered.

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Posted by Justice in San Mateo
a resident of another community
on Jan 26, 2010 at 11:47 am

Michael, the answer is above. Wagstaffe settled this case because it was going to come out that the Atherton police had been reprimanded by a judge several weeks ago for doctoring a police report in another case. The judge gave the most savage remedy (if you're law enforcement) imaginable: factual innocence (i.e., ruled the police did not have probable cause to even arrest in the first place). I'm guessing there was some overlap of police officers in the two cases since the APD is so small, so Bothun's lawyer could have used that doctoring issue in Bothun's case and most likely achieve an acquittal on that issue alone.

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Posted by What???
a resident of another community
on Jan 29, 2010 at 8:49 am

Wagstaffe does not control all the press releases, I don't know where you heard that. You should know that from the press releases issued by your local police department, just google them. Nor does he assign weak misdemeanor cases to particular Deputy DA's, tha is done by the head misdemeanor DA. And the Feds do not take all child porn cases, and none that have no felony charges. The Feds do not charge a sole misdemeanor charge. The fact that our DA's office filed the charges or plead him out, has nothing necessarily to do with the strength of the case. Small-time cases like this are pled to on a daily basis, even with substantial amounts of evidence, like naked kids in sexual positions on his computer.

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Posted by Gunslinger
a resident of another community
on Jan 31, 2010 at 9:01 am

I don't know enough about the background politics of this case to chime in on the defendant or police. However, I do know that the title and general writing of this article was misleading. It was not just porn. It was CHILD PORN!

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Posted by butch cassidy
a resident of Atherton: other
on Jan 31, 2010 at 10:22 am

What happened to Bothun is standard operating procedure for the Atherton PD.

Charge someone with a crime so vile that no one willquestion the origin of the evidence put forth by the arresting officers in support of the criminal charges filed, (be it manufactured by the Police or acquired in violation of one's constitutional rights).

I see clouds gathering on the horizon. This storm will clear the air, it will expose the Atherton Police Department for what it is.

Sorry, but further commenting on this topic has been closed.

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