MANKATO — Minnesota State University football coach Todd Hoffner’s defense attorney will be allowed to have his own copy of videos used to justify child pornography charges as long as the attorney agrees to keep the videos in a secure location.
District Court Judge Krista Jass issued the order this week after the attorney, Jim Fleming, challenged Assistant County Attorney Mike Hanson during a motion hearing last week. Hanson had denied Fleming’s request for a copy of the videos, saying it would be against state and federal law to make copies of child pornography.
Fleming was allowed to see the videos after Hoffner, 46, was arrested in August at his home in Eagle Lake and charged with one felony count of using minors in a sexual performance and one felony count of possessing child pornography. Fleming and Hoffner’s wife have both said the videos are not child pornography, but silly and innocent family moments.
One of the videos allegedly shows the Hoffners’ two daughters and one son, ranging in age from 5 to 9, doing a performance where towels are dropped before they touch themselves while dancing naked. Another video allegedly shows the two girls dancing naked as the boy enters wearing only a football helmet. The third video shows one of the girls being woken to use the bathroom, then focusing on the back of the child’s underwear.
In a memorandum explaining her order, Jass said Hanson’s arguments that the videos shouldn’t be turned over because they were contraband and because they would cause the children further embarrassment weren’t valid. The videos wouldn’t be considered contraband in Fleming’s possession anymore than they would be in Hanson’s possession, she said. And it’s unlikely the Hoffners’ children would be embarrassed any further by having their father watch the videos with his attorney.
“The alleged victims have presumably been viewed in a state of undress by their father numerous times,” Jass said. “It is doubtful they will experience any additional embarrassment or exploitation if copies of the videos are produced to their father and his defense team.”
Jass also noted this case is different from many child pornography cases where large numbers of pictures and videos are gathered over the Internet. In this case a judge or a jury, if the case goes to a jury trial, will have to decide if the videos are pornography at all.
“Lastly, the unique facts of this case require that the defense receive unfettered access to the videos,” Jass said. “The defense contends that the videos are not pornography. Accordingly, the central contested issue for trial will concern whether or not the videos constitute “pornographic works” as the term is defined under Minnesota law.
“The state has unfettered access to study the videos in preparation for trial. Fundamental fairness dictates that the defense receive the same.”
Fleming also will be required to sign a protection order saying he won’t distribute the videos. If Fleming asks Hoffner or an expert witness to watch the videos with him, they will be required to sign the same agreement.
All of the videos were discovered on a Minnesota State University cellphone that had been issued to Hoffner, the university’s head football coach. Hoffner had brought the cellphone to the university’s Information and Technology Services Department for repairs.
Another phone and two computers were confiscated from Hoffner’s house when he was arrested Aug. 21. Investigators said last week that those devices were searched and no other evidence of child pornography was found.