The strange saga of the child pornography case against Roger Roybal took another turn Tuesday when his expected sentencing was postponed until Nov. 2 so two independent polygraph experts can testify.

In postponing the sentencing, U.S. District Court Senior Judge Charles Lovell noted that a “problem” came up when he met with the prosecution and defense attorneys in his chambers midway through the morning’s hearing. He said that both sides want their own “polygrapher” to testify as a witness, but that only one was present at that time.

“As to polygraph evidence, it normally isn’t admissible in the courts of Montana, at least for the purpose of demonstrating and proving guilt or innocence,” Lovell said. “However, in a case such as this where the question before the court is sentencing, I think that the court should at least listen to the evidence before making a determination in the case.”

His ruling came after the 13-year-old victim, identified in court documents only by initials and as a Missoula resident, took to the stand behind closed courtroom doors to testify.

Two years ago, the girl’s grandmother in Missoula County told police she’d discovered pornography was being emailed to the girl. The girl then told authorities that Roybal, who was a family friend, molested her from August to December 2010 at her mother’s home, at a Missoula hotel and on hikes. She also said that Roybal gave her alcohol and had her watch pornography with him at his Helena home, and he gave her a briefcase of pornographic magazines and a video.

Agents seized his computer, and initially said they found 1,600 images and movies of child pornography that Roybal had received via the Internet between 2008 and when his equipment was seized in December 2010. The images and movies showed clearly prepubescent youth and children engaged in sadistic or masochistic abuse or other depictions of violence.

Roybal disputed that number, however, at a change of plea hearing in January, arguing that there weren’t that many images. After further reconsideration of the evidence, prosecutors lowered the number of images to 600, and in June he entered a guilty plea to receipt of child pornography.

The disputes in the case continued in court Tuesday. Roybal’s attorney, John Rhodes with the U.S. Federal Defender’s office, objected to a presentence report in which Roybal was penalized for distributing the child pornography. Rhodes argued that “on a simple and succinct level,” an analogy could be drawn to distribution of drugs.

“You have to give the drugs to somebody instead of just showing them the drugs to distribute them,” Rhodes said. “Or if you go to a museum; you walk in and the museum permitted you to view something but it doesn’t mean the museum distributed that art piece.”

Prosecutor Marcia Hurd with the U.S. Attorney’s office turned the argument around, also using the museum analogy.

“The point is you go in and look; they have distributed that art for you to look at,” Hurd said. “Child pornography is extremely disturbing, disgusting thing that many people collect and it fits the guideline of the defendant’s actions toward a child.”

Hurd and Rhodes also butted heads when she requested the courtroom be closed for the girl’s testimony. Hurd said that with Roybal’s family members in the room, it would make it more difficult for her to fully disclose what Roybal did to her; she added that the girl is getting counseling.

Rhodes countered that removing spectators from the courtroom would violate Roybal’s right to due process for confronting his accuser for what Rhodes said was criminal conduct he hadn’t been charged with in federal court, which had to do with the alleged molestation.

“Closing the courtroom violates those same rights if Mr. Roybal ends up being punished for this uncharged conduct,” Rhodes said.

Missoula County has said charges are still pending in connection with the alleged sexual assault of the girl.

When the sentencing hearing resumes, Roybal expects to request leniency due to his being a veteran of the first Gulf War in 1991. In court documents, Rhodes said Roybal is being treated for post-traumatic stress disorder, which is a result of “witnessing the death and carnage of the ‘Highway of Death’ and of Kuwaiti civilians at the hands of Iraqi soldiers.

“Mr. Roybal encountered bodies of children in a garage,” Rhodes wrote. “Those children had been raped, tortured and killed by Iraqi soldiers.”

He said the brutality and trauma changed Roybal forever, and that he’s now ashamed before his family and friends of his post-war activities.

Rhodes is requesting that Lovell incarcerate Roybal in a facility run by the Veterans Administration rather than the Bureau of Prisons, because he’ll receiving counsel-ing more closely aligned with that of other war veterans.

Roybal faces a mandatory minimum of five years for the charge of receipt of child pornography, and up to 20 years in prison.

Reporter Eve Byron: 447-4076 or eve.byron@helenair.com

Follow Eve on Twitter@IR_EveByron

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