News Photo by Julie Riddle Bradley Avery listens via videoconference as his attorney argues that charges of possession child pornography, levied against Avery, are not substantiated.

ALPENA — A judge needs more time to consider whether a lower court judge erred in permitting Bradley Avery to proceed toward trial on a charge of possession of child pornography.

In the 26th Circuit Court on Monday, defense attorney Dan White argued that photographs found on Avery’s cell phone during a police investigation could not be proven to have been knowingly downloaded by Avery.

A search of Avery’s electronic devices earlier this year found that Avery — accused of secretly videotaping girls changing clothes in the Alpena County Fair office in 2017 — also had eight unrelated photographs classified as child porn on his phone.

At least two of those photos were identified in a report by a U.S. Secret Service agent as images on banners from legal pornography sites, downloaded to Avery’s phone without his knowledge, White said.

At a hearing in July, the prosecution didn’t prove that the other six photos were linked to a specific search for child porn, White told Judge Benjamin Bolser.

Without that proof, White said, Judge Thomas LaCross of the 88th District Court let the prosecution off the hook by ignoring a requirement that someone has to know they are in possession of child sexually abusive material for a child porn charge to stick.

The Secret Service agent’s report was hearsay and shouldn’t have been admitted in court to begin with, contended Alpena County Prosecutor Cynthia Myszynski. Even with its admission, the remaining six photos were adequate to substantiate the charge of possession of child porn, she told the court.

Bolser will issue a written opinion on whether LaCross was mistaken in allowing the charge against Avery to stand.