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February 20, 2005

Appellate court overturns child porn criminal's term

EASTON -- The Pennsylvania Superior Court has thrown out a 33 to 67 year sentence for Palmer Township sex offender James Charles Klueber.

Two of the three judges who reviewed the case said Northampton County Judge Stephen G. Baratta abused his sentencing authority.

In its Jan. 19 decision, the appellate court ordered Klueber to be re-sentenced by a different Northampton County judge.

Klueber, 44, of the 2700 block of Crestmont Avenue, sent 134 images of child pornography over the Internet to an undercover police officer on Dec. 21, 2001.

Baratta ruled a long sentence is necessary to ensure Klueber would not harm a child.

Judges Richard B. Klein and Stephen J. McEwen Jr. say evidence indicates Klueber is fascinated with child pornography but very little indicates he would harm a child.

"The evidence only points out that he may be a threat to repeat his crime, which primarily was looking at child pornography that others took," the judges wrote.

Klueber's neighbors, who argued for a stiff sentence, said they are afraid for their children if he is released.

"If he gets out in a few years, I would be very concerned," said Logan Drive resident Ed Zabel. "Seeing him next door, leering at the kids, you never know what's going to happen next."

"I've very concerned about him getting out," agreed neighbor Paul Lorigan. "People in the neighborhood, they're very concerned. They would be frustrated if we couldn't keep our children safe. We want the system to work to protect the kids."

Assistant District Attorney Pat Broscius has appealed the decision to the state Supreme Court. The Pennsylvania Supreme Court has yet to decide whether to hear the case.

Baratta said Friday it was inappropriate for him to comment at this time.

Prosecutors say Klueber had hundreds of images of child pornography on his computer and in his possession. Officials dropped 400 counts of sexual abuse of children against him in exchange for his plea to 134 counts.

Court records say Klueber fondled himself at a urinal in the Easton Area High School locker room in December 1999 as he watched 20 to 30 boys shower after a wrestling match. He pleaded guilty to open lewdness and was sentenced to three months to a year in prison, records say.

Authorities documented multiple complaints about Klueber staring at children in his neighborhood.

Judges Klein and McEwen point out that while Klueber's behavior is wrong, it does not indicate Klueber will harm a child.

Klein and McEwen noted that Baratta called Klueber a "sponge" and a "parasite" for relying on his then-83-year-old mother for support even though he is college educated. Baratta said he could put Klueber away "long past his natural life" by running sentences within the state guidelines consecutive to each other. He sentenced Klueber to 134 consecutive three- to six-month sentences.

"These comments, viewed in the context of the trial court's willingness to equate looking at photographs with actual physical abuse, create enough of a question to be of concern to us," Klein and McEwen wrote.

Superior Court Judge Correale F. Stevens disagreed with Klein and McEwen.

"The majority implies that the sentencing judge was biased against (Klueber) but point to nothing in the record to justify that conclusion," Stevens wrote. "Appropriate, albeit negative, comments by the sentencing judge about the defendant's crimes do not by themselves rise to bias."

Stevens noted that Klueber downloaded child pornography while attending sex offender treatment for his 1999 offense. Klueber admitted he viewed child pornography on his computer four to five hours a day. Mental health professionals noted their concern with Klueber's case; psychiatrist Robert Gill said he is a high risk to re-offend.

Klein and McEwen said the Static 99 test used by Gill to make that judgment is unreliable. Eighty percent of offenders classified as "high risk re-offenders" by that test in 1994-95 did not commit another sex offense.

"Almost total reliance on such a predictor borders on folly," the judges wrote.

At his sentencing hearing, Klueber blamed a head injury suffered in a car wreck for some of his poor decisions. He admitted he owns considerable amounts of pornography but appreciates it as an "art form" and collects it out of "curiosity."

"With God as my witness, I would never hurt a child," Klueber said at the sentencing hearing.

If the Superior Court judges believe him, they should invite him to be their neighbor, said Ed Zabel's wife, Eileen Zabel.

"They don't have to live next to him," Eileen Zabel said. "I do. I've got a 15-year-old son who has friends over every day. How do I feel safe with that?"

Posted by Nealus at February 20, 2005 11:10 AM

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