Hey, I Like a Challenge

Monday, February 28th, 2011

For my crime column this week, I defend a former cop doing 15 years in federal prison for producing child pornography.

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27 Responses to “Hey, I Like a Challenge”

  1. #1 |  BillC | 

    He was a cop, so he probably did something to deserve it…

  2. #2 |  C. S. P. Schofield | 

    #1; cute, but beside the point. The Child Porn laws were written in a “These have to be so tight that no guilty man can escape” frame of mind. This inevitably results in the conviction of people that it shouldn’t.

    Should the man be fired for having sex with much younger women who are legally able to consent? That can be argued. Should he be jailed, at taxpayer expense, for having sexual images of girls with whom he could legally have sex? I can’t see it.

    Child pornography should be defined as photographic evidence that a crime of sexual abuse of a child has occurred. It should be illegal solely because possession is possession of evidence of a crime that should have been turned over to the police. Laws that make it a crime to possess certain images make me nervous. Any law that censors any category of data will be used by the State to censor data the State does not approve of, by stretching the category to fit.

  3. #3 |  Bob | 

    I couldn’t even finish page 1.

    This is the kind of abomination of justice for which juries, and their potential for jury nullification, exist.

    What the fuck is wrong with Congress? Why can’t the fucking jury be TOLD what the potential penalties are?

    If I am ever on a jury, and am specifically instructed that I cannot be told the possible punishment, I will vote not guilty. I don’t care if it’s fucking Charles Manson on the stand.

  4. #4 |  Deoxy | 

    Heh, nicely done, though the framing of the challenge is really part of what made it so hard (essentially, you committed the logical fallacy of assuming the result, then showed the error).

    Child pornography should be defined as photographic evidence that a crime of sexual abuse of a child has occurred. It should be illegal solely because possession is possession of evidence of a crime that should have been turned over to the police.

    This. I’ve never quite thought of it consciously like that, but it fits perfectly.

    It would also solve the problem with this case: no underlying crime was committed, so the pictures in question wouldn’t be a problem.

  5. #5 |  Mike Leatherwood | 

    But what about the children????

    /vomit

  6. #6 |  Carl Drega | 

    http://weblogs.baltimoresun.com/news/crime/blog/2011/02/judge_upholds_firing_cop_in_ha.html

  7. #7 |  Boyd Durkin | 

    I’m trying to figure out why Koch told you to write about this guy.

    /sarcasm

  8. #8 |  Irving Washington | 

    I’m trying to figure out why Koch told you to write about this guy.

    Obviously, the Koch brothers are pro-child porn.

    I know a computer forensics guy who does a fair amount of expert witnessing for child porn defendants. He’s pretty adamant that its the crime with the most frame jobs. Divorces, partnership disputes, you name it.

  9. #9 |  Dave Krueger | 

    This is the opposite of paying an adult to have sex. If you make a video of it, it’s protected expression (ie: pornography), but if you don’t make a video, you can be charged under prostitution laws.

  10. #10 |  James J.B. | 

    Rage fatigue. I feel nothing. No concern, no sense of injustice. Just don’t care. I read this site, Hit and Run, and a few others. I am a crim defense lawyer and I just feel nothing.

    When one of the cops goes down, I guess I just feel like BillC at 1 above. There is only so much of my time that I can devote to these things, and I guess, like the rest of the US on most other abuses, a ball game is on, a royal wedding, or Oscar results take priority.

  11. #11 |  KBCraig | 

    I recall a similar case, where the “victim” was on the inmate’s visiting list… because she was his wife!

  12. #12 |  Judas Peckerwood | 

    #3: “What the fuck is wrong with Congress?”

    How much time you got?

  13. #13 |  SJE | 

    Perhaps law enforcement should stop being so buddy-buddy with prosecutors.

  14. #14 |  Deoxy | 

    I know a computer forensics guy who does a fair amount of expert witnessing for child porn defendants. He’s pretty adamant that its the crime with the most frame jobs. Divorces, partnership disputes, you name it.

    I would be surprised if that WASN’T true – the bang for the buck (how badly you can hurt them for how much effort it takes) is off the charts compared to everything else I can think of.

    Not only can it put them in prison for a long period of time, but even if they manage to beat that, in the mean time, in anything about kids, it’s an ENORMOUS black mark (even the accusation is harmful), and it can be pretty significant even in a divorce with no kids involved.

    And the effort involved… um, NONE? I mean, really, getting on their machine is easily the hardest part, and that’s painfully easy in most cases (example: a friend of mine was not allowed to change the locks for months, even though his soon-to-be ex was cleaning the place out when he wasn’t around). Getting the criminal stuff on the machine? Yeah, that would take, what, 15 seconds if your internet connection is particularly slow? Then make some anonymous calls to the police…

    What’s the most ridiculous about this is that a spammer can commit this crime for you. Seriously, if you download your mail (how many people use MS Outlook?) and someone sends you a child-porn picture attached to an email, you have COMMITTED the crime before you even know they’ve sent it to you (you have the picture on your hard drive). There is no defense.

    So, somebody could send an offending picture to every member of congress, every police chief and officer, and the President, and they would all be guilty. It’s really quite insane.

    (Of course, they would never be prosecuted. Laws are for the little people, you know.)

  15. #15 |  BamBam | 

    No one has commented on the fact that the former cop was banging the daughter of another cop. Maybe this other cop didn’t like this fact and whispered in the FBI ear, and suggested a way to charge him with something, because cops seem to have quite an imagination and ability to twist statute words to fit the crime. The conclusion has been reached, so let’s discard things that don’t fit the conclusion.

  16. #16 |  TC | 

    Sucks that the man is doing big time for what does not even seem to be a crime.

    But come on, 34 banging 16 and 17!!!!

    If I was the father of either of these girls I’d desire to see his ass kicked too!

  17. #17 |  C. S. P. Schofield | 

    Re; all comments about the age of the man and the ages of the girls (not women; women don’t let themselves in for this kind of nonsense). Can’t we agree that writing laws such that it is possible to convict every jerk of SOMETHING serious enough to lock him up is a lousy idea?

  18. #18 |  Mattocracy | 

    I don’t understand why the age of 18 is the magic age for adulthood. People lose their innocence long before this age and people sure as hell aren’t grown by then either. If we’re really worried about people being taken advantage of, why don’t we punish based on that and not on arbitrary things like age.

  19. #19 |  SJE | 

    I can understand wanting to kick the ass of this guy, but its not illegal to be a creepy douchebag.

  20. #20 |  C.E. | 

    In sort of related news, the Fifth Circuit recently overturned one of these 15-year convictions where a voyeur surreptitiously filmed customers at a tanning salon, one of whom happened to be a 16-year old girl. In an opinion that I never would have expected to come from the Fifth Circuit, they reasoned that, however despicable his conduct, what he filmed did not count as pornography (I’m paraphrasing, of course), and so he couldn’t be convicted of producing child pornography. It probably helped that he wasn’t targeting any particular person, adult or minor; he just was filming whoever used the booth. When you read the opinion, though, you really have to wonder how (a) some prosecutor thought the child pornography law would apply and (b) some trial judge did, too and (c) 12 jurors all thought the same thing. The way the statute was drafted and the way the terms were defined, no one in his right mind would have concluded this was child pornography. Luckily the Fifth Circuit stepped in at the end.

    http://www.ca5.uscourts.gov/opinions%5Cpub%5C10/10-50114-CR0.wpd.pdf

  21. #21 |  croaker | 

    So, a cop is in prison on a bogus charge.

    Attempting to give a shit…

    Attempt failed.

  22. #22 |  Judas Peckerwood | 

    #21 croaker: “So, a cop is in prison on a bogus charge.

    Attempting to give a shit…

    Attempt failed.”

    Yes, and anyone who isn’t a CHILD knows that the defense of civil liberties isn’t based on protecting the freedoms of the cool kids, it’s built on defending the freedoms of those who the idiot masses would just as soon turn into soap and lampshades without due process.

    Grow up, asshole.

  23. #23 |  albatross | 

    Judas #12: +1

  24. #24 |  MPH | 

    A few responses/additions to previous comments, then a new one.

    Dave @ #9. Check out The Honest Courtesan (http://maggiemcneill.wordpress.com/). She’s a former prostitute, very much up on the law and culture with respect to prostitution. And she has a few things to say about how effective “making a pornographic video” is when it comes to avoiding prosecution for prostitution (short version: it isn’t).

    KBCraig @ #11. About 10 years ago, here in FL, the state legislature was considering a bill about making it a felony to get a woman under 18 pregnant. The older the man involved, the older the woman (ie she’s 14, he’s 18+ – it’s goodbye to him; but if she’s 17 he has to be 21+ to send him away). The asinine thing was that the law had no provision for a man getting their wife pregnant (and of course, a woman can marry as young as 14, or younger, – although it might involve parental permission). Don’t know if the bill was made into a law (I hope not – stupidity shouldn’t be made into law).

    Deoxy @ #14. You don’t even need a spammer to send mail to your computer. Some years ago (10+ I think) I read of a case in which the particulars were as follows: FBI decides to frame a person for child porn (I don’t recall his name, so I’ll call him Joe). They kept sending Joe a flier for a non-existent business that was advertising it’s “adult entertainment” products. The flier offered to send a free sample. Nothing in the flier even hinted at the product being illegal in any way. Joe threw the flier out for months (the FBI kept resending it). Finally, desperate to get them to quit sending the flier, Joe sent back the “send me your sample” reply card in the hopes that no resulting purchase would discourage them from sending additional fliers. The FBI then sent, via Fed Ex, child pornography to Joe (nothing in the flier would have led anybody to expect to be sent child porn). Once they knew the package was inside the home, they raided it (Joe hadn’t even opened the package). Joe was arrested for receiving child porn that he didn’t ask for. Apparently, there isn’t enough actual crime for the FBI to keep busy, so they have to manufacture some.

    — New comment —

    Age of consent laws (and the resulting “don’t photograph ‘em” laws) have an interesting genesis (Playboy had an interesting article on this some time back). Back before the country industrialized, most people were involved in “cottage industry” (ie – their business place was also their home – lived above their shop, or worked a farm). This meant that husbands and wives were essentially being supervised all day long by their spouses. Then the nation started to industrialize. Men stopped farming, or stopped running their little shop, and started traveling to the factory to work (usually for higher pay or more reliable pay). On the way home, some men would stop off for a “good time” with a young prostitute (13 and 14 year old prostitutes were rare, but they did exist). A few of these men would leave their wife and kids for their favorite young prostitute. Women painted this behavior as if it were an epidemic and got their state’s to pass age of consent laws (gotta have enough hysteria behind a problem to get a law passed). So age of consent laws were created because 30+ year old women didn’t want to have to try to keep their husbands sufficiently satisfied sexually to keep them from running off with that 14 year old prostitute (or, the neighbor’s daughter, etc.). It wasn’t done to protect “the children”, it apparently was done to protect “the frigid”. At least, it was a contributing factor.

    It wasn’t all that long ago that the idea that 14 year old females were women, who would want to have sex, was acceptable. The idea of a 14 year old woman being pregnant was only unusual if she wasn’t married. Paul Revere’s second wife had her first child (by her first husband, who was killed in the revolutionary war) when she was 16. This means she was pregnant no later than 16 years 3 months, and could have been pregnant as young as 15 years 3 months (and was probably married and having sex for a year before that). Paul, being a respected silversmith in 18 century Boston (17th century Boston is where the book “The Scarlet Letter” is set; and their attitudes about extra-marital sex hadn’t changed much) was unlikely to risk damage to his reputation by marrying someone who Boston society would have considered to have behaved badly. So this was normal.

    In the 1930s, the first woman doctor in West Virginia tells in her autobiography of a case in which a 13 year old woman marries a man whose wife had recently died and whose oldest child was 11 (her autobiography was made into a made for TV miniseries). The doctor was concerned about the age disparity, but the movie made it clear that both the local culture and the 13 year old thought this was normal, acceptable, and even a good thing (the 13 year old was pleased that she was marrying a man that all knew was “kind”).

    Now in both of these cases the men needed a woman to take care of their kids from their first wife so that they could continue to work, and the woman needed a man to provide a home for them. I’m not going to state an opinion as to whether things are better now, or better then. But I do wonder how we got from a culture that thought of 14 year old women marrying (both men about their age, and quite a bit older), wanting to have sex, and having kids, as being normal, to where we are now where we all “pretend” that women under 18 (or as mentioned here, 16) are not subject to the drive to procreate.

    While I’m not stating which situation is “better”, I think the current situation is divorced from reality. We need to reeducate our society to accept that once kids are through puberty, they’re adults, and will be driven to have sex. And we need to realize that this happens quite young (my stepdaughter started menstruating at 9, and was essentially done growing before 12 – except for that final 10 years of slow growth where humans typically add about 1 inch to their height; I do know that what fit her when she was 12 still fit fine at 13, 14, etc.). Entering puberty is a function of nutrition and our kids usually are very well fed. Until we can get the masses to understand this (and they used to, so it is possible), we’ll have a hard time getting the laws changed.

    Today, we treat teen-aged sex, particularly for pre-high-school graduation teens, as if it is something that is deviant. It isn’t. It’s normal, and has been for longer than written history. We will first need to accept it as normal, so we can start a dialog about how to deal with it, and it’s tertiary effects (like young women sending sexy photos to their lovers), that might actually work.

    Sorry about the length.

  25. #25 |  fwb | 

    Once more:

    Why do Article I, Section 8, Paragraphs 6 and 10 and Article III, Section 3, Paragraph 2 exist in the Constitution?

    Why are there not equivalent police power grants related to the other powers?

    If the other powers do not need specific police power grants, why did the above enumerated specific grants require inclusion in the Constitution?

    Are the above enumerated powers unnecessary? If so, why did the Framers include them? Ignorant?

    Or is it that the feds do not have the authority to exercise police powers other than those delegated?

  26. #26 |  supercat | 

    #3 | Bob | “What the fuck is wrong with Congress? Why can’t the fucking jury be TOLD what the potential penalties are?”

    Because judges want to pretend that Amendment VIII doesn’t forbid punishments which the jury would deem excessive given the particular facts of a case.

  27. #27 |  supercat | 

    # #21 | croaker | “Attempt failed.”

    Even though, as the saying goes, a few bad cops give the other 5% a bad name, there are some cops who do their best to do right by the citizenry. Do you have any a priori knowledge that the defendant in this story was one of the bad cops, or do you want all cops to suffer for the sins of the bad ones?

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