A mother was sentenced to 30 years for producing child pornography and using her own two children as subjects. Worse yet, she sent it to their pedophile father.  

Litzky’s live-in boyfriend, Roberto Oquendo, was a passenger in a car pulled over for a traffic stop in Melbourne, Florida.  The officer conducting the traffic stop learned that he had child pornography on his phone.  He gave an interview and admitted having pictures of the genital areas of his daughters for his sexual gratification.  Law enforcement officers also discovered thousands of lewd images of naked children on his electronic devices.  Oquendo was of course a pedophile.

Among those images were screenshots of video conversations between Oquendo and Litzky over several months where Litzky had posed the two children-victims focusing on their vaginal and buttocks area.  Litzky was interviewed and eventually she confessed to sending approximately 500 hundred nude images and videos of their children to Oquendo. Litzky was charged with violating various federal child-pornography offenses and convicted.

After Litzky’s arrest for a federal crime, her attorney hired Dr. Valerie McClain to conduct a psychological evaluation of Litzky to assess her competency and to address mitigating factors for sentencing.  During the evaluation, Dr. McClain learned that Litzky had a history of physical abuse by her parents and was gang raped at the age of 13.  She also told Dr. McClain that Oquendo was abusive.

Dr. McClain concluded that Litzky’s intellectual disability coupled with her history of victimization placed here in a position of extreme vulnerability without the necessary protective support to protect herself and her children.  Prior to trial, the government moved to prevent Dr. McClain from testifying.  The federal district court agreed and excluded the psychologist’s testimony at trial.

Litzky appealed her conviction claiming the federal judge violated her constitutional right to present a defense by excluding the psychologist’s expert testimony relating to her intellectual disability.  She also appealed her 30-year sentence arguing that it was substantively unreasonable, even though it was 50 years below the federal sentencing guidelines of 80 years.

Litzky argued the trial court’s decision to exclude Dr. McClain’s testimony gutted her theory of defense and prevented her from defending her case.  The appeals court disagreed because it found that the psychologist’s proffered testimony was not tied to any legally acceptable defense theory.  The appeals court acknowledged that psychiatric evidence is still admissible to negate the mens rea of a specific intent crime.  But Litzky’s defense failed to demonstrate how her psychiatric evidence would negate the specific intent.

Instead, the psychologist’s testimony posed a danger of confusing the theory of defense with an excuse and did not advance a legally acceptable theory that Litzky lacked mens rea to commit the crime of producing child pornography.  The psychological evaluation did show she was vulnerable, had a history of victimization, and a desire to please Oquendo.  But this did not negate her specific intent.  While Lutzky’s preferred defense might have been to deflect blame onto Oquendo and play on the jury’s sympathies, the fact that Dr. McClain’s testimony would have been helpful to the defense did not provide a compelling reason for admitting the testimony.

As for the sentence, the court of appeals agreed with the trial court’s finding that Litzky’s conduct was heinous, disturbing, appalling and horrific, so it had no problem upholding the sentence.