Why a retired Tucson judge wants man he sent to prison for child porn set free

An effort to reduce the life sentence for an Oro Valley man convicted of possessing child pornography includes the former judge who handed down the 290-year term.

“The injustice of this sentence has haunted me for the 17 years since it was imposed. It is an embarrassment to our criminal justice system,” said Leonardo, a 44-year prosecutor and judge, in an opinion piece for the Arizona Daily Star that also appeared in the Arizona Republic.

“By far, the most egregious example of an excessive mandated sentence that I was ever required to impose,” wrote Leonardo. “A sentence of 290 years in prison (a life sentence in effect) for this conduct is not only disproportionate, it’s unconscionable.”

Carl Ray Buske, whose criminal record at the time was a 15-year-old conviction for drug possession, was working as an aviation mechanic in 2007. He was convicted in Pima County Superior Court of possessing 29 images of child pornography — but did not create, distribute or sell them.

In April of 2007, Leonardo sentenced Buske to the only term allowed by state law — 10 years in prison for each image. The total: 290 years behind bars.

Today, 17 years later, the former judge has filed a petition with the Arizona Board of Executive Clemency to reduce Buske’s sentence to “time served” to get him released from prison.

“Like most people, I abhor child pornography. The possession of such images should be illegal and severely punished,” said Leonardo, . “However, one of the guiding principles of our criminal justice system is that the punishment should be proportionate to and commensurate with the crime.”

Arizona state law mandates a sentence of between 10 and 24 years for each image of child pornography possessed by the individual. Moreover, the sentences for each of the images must run consecutively to one another.“

The usual discretion judges have when delivering a sentence was unavailable for Buske’s case, requiring Leonardo to issue the 290-year term.

The case

The case began when the Oro Valley Police Department received reports by two women regarding Buske’s roommate, whom they said had computer disks containing child porn.

The roommate told detectives the child porn belonged to Buske.

Investigators found more child pornography, featuring girls between 11 and 12 years old, along with sexually explicit stories in a search of Buske’s apartment.

The sentencing

A jury found Buske guilty on all 29 counts he faced, leaving Leonardo to sentence him to 290 years in prison, even though he called the sentence “extraordinarily excessive,” and immediately gave Buske’s attorney the permission to ask for the sentence to be commuted.

“It is astounding to realize that Carl’s sentence far exceeds the minimum sentence provided in Arizona law for many crimes involving serious violence and physical injury to the victim, such as second-degree murder (10 years), rape (7 years) and sexual assault of a child under 12 (13 years),” Leonardo wrote in his opinion piece.

“Arizona’s harsh sentencing scheme is out of step with all other state jurisdictions. In no other state would Carl have been exposed to as severe a sentence as he received here.”

Buske was willing to sign a plea agreement admitting to two counts of child pornography, which would have resulted in a 20-year prison term, said Andrew Silverman, a retired professor at the University of Arizona Law School and longtime advocate for various justice projects.

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However, the charging attorney with the Pima County Attorney’s Office at the time wrote “do not offer a plea” on Buske’s court documents.

Among the reasons why no plea agreement was available to Buske: investigators had found a pair of what they thought to be a child’s panties in Buske’s apartment; and they believed he rented an apartment across a preschool to be able to look at the children, Silverman said.

However, "a subsequent investigation by the county attorney’s office found both of these factors to be inaccurate," said Leonardo.

“Arizona’s criminal justice system fails at times at providing just and fair sentences proportionate with the crimes,” says Vanessa Buch, the current director of the University of Arizona Innocence Project. “There’s (no) justification for Mr. Buske’s sentence being what it is,” said Buch, whose group is working with Leonardo.

“The uniqueness of Arizona’s sentencing scheme here is the combination of three things – the mandatory 10-year-minimum sentence, the fact that it’s per image and that it’s required that all of them be served consecutively,” said Buch. “The combination of those three dynamics makes it an outlier when viewed against every other state and the federal government.”

Certain states might have a 10-year-mandatory-minimum for similar offenses, but don’t require the sentences to be consecutive or have provisions that would allow for all the images to be “consolidated into a single count,” said Buch. Similarly, certain states might mandate consecutive sentences but won’t have a mandatory minimum term.

Leonardo, in his opinion piece, noted that a 2022 Federal Sentencing Commission report stated the average prison sentence for 1,435 people convicted in child pornography cases with profiles similar to Buske was five years.

The report also states the overall sexual recidivism rate, which refers to the possibility of the person committing crimes again, was found to be 4.3%. It further states the possibility of people convicted of going on to commit offenses that involve sexual contact to be 1.3%.

“This is miniscule compared to the overall recidivism rate of 43% for all released federal prisoners and approximately 40% for all Arizona released state prisoners,” wrote Leonardo, who also served as the U.S. Attorney for the District of Arizona from 2012-17.

The petition

After retiring from his post as head of the state’s U.S. Attorney’s Office for the District of Arizona, Leonardo reached out to Silverman to see if he and the University of Arizona law school would be interested in getting involved with the Buske case. The two met with Buske at the state prison in Florence to speak to him about filing a petition.

Silverman then took the case to Buch, who was already with the University of Arizona Innocence Project and law students were assigned to work on the case. They also reached out to the Pima County Attorney's Office and got them involved as well.

Silverman, who had started out by working with the Arizona Justice Project in Phoenix, had begun his justice work at a time when he, volunteer attorneys and law students volunteered their time to work on compelling cases, he said.

“When I arrived (in 2013), we were able to formalize the student involvement through the creation of what we initially called the ‘Wrongful Conviction Clinic,’ (which) enables law students to earn credit working on cases under the supervision of clinical faculty,” said Buch.

Officially beginning in 2013, the clinic was awarded membership in the Innocence Network, a coalition of over about 75 justice projects worldwide, and the clinic was renamed the University of Arizona Innocence Project.

The University of Arizona Innocence Project’s goal is also not to just focus on innocence cases, but also cases like Buske’s where the length of prison terms also are addressed.

Buske, who is in custody at the state prison in Buckeye, could have the phase two of his petition hearing by the Arizona Board of Executive Clemency sometime in the fall.

“We have a lot of mandatory sentencing in Arizona, not just for this offense, so it’s not unusual. Most judges don’t like it because it takes away their discretion,” said Silverman.

“Really what needs to be done is the legislature and the governor need to do something about this. I mean, someone else should not face what he has faced.”