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Mistrial denied in child sex abuse case

MAYVILLE — The mention of possessing child pornography in a recorded interview shown to jurors in the case of Dustin Post led to disagreement Friday morning in Chautauqua County Court.

Ned Barone, Chautauqua County public defender, officially requested a mistrial about an hour into the second day of testimony. His issue centered on a six-hour recorded interview Post consented to Nov. 21, 2019, at the New York State Police barracks in Fredonia as part of a child sex abuse investigation. During that lengthy interview, only a portion of which was shown Friday to jurors on a large television screen, Post alludes to possessing child pornography.

Barone took issue with the video in which Post talks to an investigator about possessing child porn as well as information in the interview that did not relate to the seven victims taking part in the trial.

Post is facing charges of predatory sexual assault against a child, first-degree criminal sexual act and first-degree rape. He is not facing local child porn possession charges.

The recorded interview, which was part of a polygraph test Post consented to days earlier during a previous interview with police, was shown to jurors for much of the morning. However, at least three times Barone, Post’s attorney, objected to information that could be heard in the recording.

Chautauqua County Court Judge David Foley appeared frustrated at the proceedings, noting to the prosecutors that information in the video about possessing child porn and other uncharged crimes could have easily been redacted. He also said the defense team had the video in question and should have raised concerns earlier.

“Everyone is pointing fingers at everyone else,” Foley said after jurors were removed from the courtroom. “This gamesmanship that’s going on that shouldn’t be in court.”

Foley asked Barone if he was indeed applying for a mistrial.

Barone said yes, later stating, “This entire matter has been tainted.”

Tracy Brunecz, first assistant district attorney, argued the information was all interwoven into the narrative of their case.

After briefly retiring to his chambers, Foley returned and denied Barone’s request for a mistrial. He noted that a portion of the video already had been redacted based on a prior ruling.

Paul Landwehr, a retired investigator with the State Police who briefly testified Thursday, remained on the stand Friday and discussed the six-hour police interview. He answered questions from District Attorney Jason Schmidt and Barone.

Landwehr was followed by Justin Burnham, a special agent with Homeland Security Investigations, which is an investigative arm of the U.S. Department of Homeland Security.

Burnham said he was contacted in 2019 by the New York State Police regarding allegations of child sex abuse made against Post. After an interview, he collected four thumb drives, a cell phone and laptop computer from Post. The electronic items were taken for an analysis.

Burnham testified that Post had admitted to having two videos that depicted sexual abuse of a child on a thumb drive. Those videos were later recovered and uploaded to a special server and provided to the DA’s office.

Barone questioned Burnham on his interactions with Post and the delivery of evidence for analysis.

Taking the stand after Burnham was Henry Cameron, a computer analyst for Homeland Security Investigations. He discussed receiving the electronic items retrieved by the special agent and recovering the two videos that Post had described.

Post was sentenced in February 2022 to 50 years in prison after being convicted on federal charges of production and possession of child pornography. He has remained in Chautauqua County Jail awaiting trial on the local charges for crimes alleged to have been committed on numerous children between September 2015 and August 2019.

The trial began Thursday before Foley. It will resume Monday at 10 a.m.

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