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Tuesday, July 22, 2014

Lost in the System by, The accidental felon (

Lost in the System
by, The accidental felon (
It seems like virtually every week there’s another case of prosecutorial misconduct that gains national attention in the media.”[1]

 - Cardozo Law Professor Ellen Yaroshefsky

Were it simply a matter of law, I believe that I could still be exonerated. The law is very specific: Unintentional, “accidental” contact is, by definition, not illegal. With no sexual interest in children or child pornography and no deliberate activity, I’ve always believed myself morally innocent of the crime. And now that I understand what the law says I know that I am legally innocent as well, an understanding which has given me hope through this horrible time. 

But ironically, this liberating knowledge actually adds to my despair: Innocence means little in today’s legal climate and is no guarantee of vindication and freedom. As an example, consider the recent situation where prisoners were found to be legally innocent of the crime which sent them to prison.[2]The Justice Department refused to even consider their release until the cases were publicized by USA Today and championed by the ACLU. In fact, prosecutors actually argued that the prisoners should be kept locked up, for crimes they had not committed, merely because of “procedural issues,” a stance that says a great deal about the one-way, “conveyor belt to conviction” mentality of the Justice Department—which didn’t even want to tell the prisoners they were innocent.[3]

I suppose it’s a kind of comfort to realize that fate didn’t single me out for abuse; my experience is, sadly, all too common. Being vulnerable to unexpected or even undeserved prosecution is part of the price one pays for living in America today. (See, for example, the stories and facts in “A Sewage Blunder Earns Engineer a Criminal Record” in the Wall Street Journal.[4])

Trivializing the law by turning it into “Aha!” moments against the careless or unwary does nothing about the problems that the statutes were written to solve: the actions of those who “consciously and deliberately” engage in the crime, the “only” ones the law was meant to punish.[5]Harvard Law Professor William Stuntz confirms that “Punishment deters crime only if crime, not innocence, receives punishment.”[6]

Federal prosecutors are supposed to seek justice, not merely score convictions,” say the authors of a USA Today report[7]which uncovered hundreds of examples of malfeasance and abuse of power. Their six-month investigation, which revealed a “pattern of serious, glaring misconduct,” showed that instead “prosecutors have repeatedly violated that duty in courtrooms across the nation.” Some of those abuses put innocent people in jail.

Prosecutors are now “part of a culture in which winning the case [is] the primary operative motive,” according to investigators for the U.S. Senate.[8] The Northern California Innocence Project released its own study documenting hundreds of other instances of judicial misbehavior by state and federal attorneys. “Prosecutorial misconduct is a serious problem,” said project director Kathleen Ridolf. “Prosecutors know...they can commit misconduct with impunity.”[9]

Professor Yaroshefsky, speaking before a national panel specially convened to address such misconduct, stated, “We do know we have a serious problem.”[1] The public, too, is growing increasingly aware of prosecutors’ lack of accountability. The media is full of stories of misbehavior, from the breathtakingly “illegal” actions of Alaska Senator Ted Stevens’ conviction[8]to the clueless DA who can’t understand why a woman who claims to have been falsely convicted of manslaughter won’t stop clamoring for justice, repeatedly suing the courts to have her case reexamined. She’s served her time. When does this end?” complained District Attorney Frank A. Sedita III, apparently forgetting that for a person unjustly convicted of a crime, the answer is “never.”[10]

Let’s be clear—government prosecutors are partisans in the criminal justice system,” says Erik Luna, himself a former state prosecutor. “Although charged to ‘do justice’ they often seem preoccupied in an occupation in which job performance is typically evaluated by conviction rates.”[11] Prosecutors are the A+ students. They’re not used to losing,” says Loyola law professor Laurie Levenson.[7] Joel Rudin, a practicing defense lawyer for nearly twenty-five years, says, “Prosecutors hold all the cards and the opportunities for success are so small. It’s become nearly impossible to fight the system.[12]

Prosecutors not only hold all the cards, they are typically convinced of a moral infallibility which justifies nearly any action. “Prosecutors think they are doing the Lord’s work and that they wear the white hat. When I was a prosecutor I thought everything I did was right,” says Jack Wolfe, a former federal prosecutor in Texas and now a defense lawyer. “So even if you got out of line, you could tell yourself you didn’t do it on purpose or that it was for the greater good.”[7]

All this conviction-driven activity has a predictable result: Arrest and imprisonment have become dominant factors in American life, touching nearly everyone. Three million people—one in every hundred—are now behind bars, and one out of every fifteen Americans will be at some point in their lives. At present one person in every thirty-five is on some form of “supervised release” (probation).[13][14]

We are a nation of inmates compared to the rest of the world. With only five percent of the world’s population we have twenty-five percent of the world’s prisoners, a higher percentage of our citizenry than the “repressive” countries of Russia, Iran, Cuba, or Communist China.[15][16] Prisons are full of people who had no intention of breaking the law,” say Roberts and Stratton, who conclude that “American jails are overflowing because almost everyone indicted is convicted.”[17]

Senator Jim Webb, who has studied the problem extensively, laments, “Either we are the most evil people on earth or we are doing something very wrong.”[14] Just the titles of the books I’ve been quoting are enough to describe the disturbing reality of contemporary judicial process:

The Collapse of American Criminal Justice[6]
Constitutional Chaos: What Happens When the Government Breaks Its Own Laws[18]
Go Directly to Jail: The Criminalization of Almost Everything[11]
The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice[17]
Three Felonies a Day: How the Feds Target the Innocent[19]

These books weren’t written by cranks, crackpots or “black helicopter” nutjobs but by respected law professors, a former Cabinet official, a judge, the former head of the ACLU and even ex-prosecutors. Despite their substantial political differences, they all agree: the administration of justice has gone seriously awry. Senator Webb says, “America’s criminal justice system has deteriorated to the point that it is a national disgrace.”[14]

Professor Stuntz says plainly, “America’s criminal justice system is badly broken” and explains one reason why:
Guilty pleas and the quick bargains that precede them have become the system’s primary means of judging criminal defendants’ guilt or innocence. Given the quick-and-dirty character of the bargains, the judging is bound to be done badly.” With nearly all federal prosecutions ending in pleas, he writes that the lack of careful investigation “virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit.”[6] A defendant’s ‘guilt’ is, more often than not, preordained by the grand jury’s indictment,” says Federal Judge John L. Kane.[20] Merely being accused of a crime is enough to be convicted and imprisoned.

In theory, our legal system functions on “due process,” rules about the way things are supposed to be done. Defendants have rights, including what the Supreme Court has called “an overriding presumption of innocence,”[21]which touches not just the trial, but all stages of the criminal proceeding—including the decision of whether to prosecute at all.

But in practice, these protections of rights and due process become meaningless if a defendant can be tricked, threatened, or otherwise coerced into pleading guilty to a crime he didn’t commit.
Stuntz notes that “The various trial rights the Constitution guarantees apply only to defendants who take their cases to trial. Guilty pleas waive those rights, and the state is free to use even extortionate threats to induce pleas.”[6]
The parallels to my case are dismayingly exact. I was subjected to apathy, incompetence, lies and threats in order to get me to agree to a plea. The protections of due process and defendant’s rights—including the right to understand the decisions I was compelled to make—were ignored in favor of manipulation and trickery intended to goad me blindly down the path to prison.
In theory I should have been presumed innocent and my explanation accepted as truth until disproved by actual evidence, instead of speculation and wishful thinking. With all the evidence pointing to innocence and no proof of guilt I shouldn’t have been charged with the crime.

But in practice prosecutors didn’t have to bother about the lack of evidence or proof; even without it, they knew they could easily bully me into pleading guilty. The standards of presumption of innocence and properly-handled investigation were discarded as detrimental to the overriding need to get the conviction. Evidence favorable to me was withheld or ignored; my actions misrepresented and inflated to serve the prosecution.

I never meant to acquire child pornography and have always denied any such intention. There is no evidence to show that I deliberately did so. But this lack of intent, specifically addressed by the law, was rendered irrelevant by my coerced plea; the meaning of the law neutered by opportunism and a disregard for the truth. 

The Supreme Court makes it plain: “The purpose and obvious effect of doing away with the requirements of guilty intent is to ease the prosecutor’s path to conviction.”[21] Laws were not written to make “accidental felons.” They were written to protect society and punish the guilty. But “nowadays if you get caught up in the criminal justice system they’re gonna take a piece of your ass—one way or another,” according to former Manhattan prosecutor Hugh H. Mo.[12]

Once a year a neighbor or a friend or someone I know will come up to me and say their son or daughter or their co-worker got arrested,” says defense attorney Diamuid White.[12]“And they will invariably say they can’t believe how they were treated. It’s always someone who’s pro-police and pro-law-and-order—until it comes home and they see how things actually work. They’re always shocked.”

What a nightmare:
  • To be charged with a crime that hadn’t even occurred to you to commit;
  • To have the tools of your life, your memories and career stripped away, making your existence precarious and empty;
  • To be arrested, publicly humiliated, abandoned and immediately presumed guilty by everyone of the worst kinds of crimes;
  • To be tricked by your own attorney into assisting the prosecution;
  • To be given a brutally long sentence after a contradictory and ineffectual pretense of a defense;
  • To be cheated out of your opportunity to appeal;
  • To then finally discover, in prison, that you didn’t actually break the law; that you were merely a powerless, manipulated scapegoat for a conviction-driven system whose own investigator reported evidence that you were innocent of your charge.

How would you feel about it?
What would you do?

1. a b Helen W. Gunnarsson, “Panelists Examine How Prosecutors Can Be Held Accountable for Misconduct,” Bloomberg BNA Criminal Law Reporter (Vol. 91, No. 19, p. 677), 15 August 2012
2. Brad Heath, “Locked Up But Innocent,” USA Today, 14 June 2012
3. See also Beth Schwartzapfel, “No Country for Innocent Men,” Mother Jones Magazine, January/February 2012
4. Gary Fields and John R. Ershwiller, “A Sewage Blunder Earns Engineer a Criminal Record,” The Wall Street Journal, 12 December 2011
5. “Child Pornography, the Internet, and the Challenge of Updating Statutory Terms,” Harvard Law Review, Vol.122:2206, 2208-2211, 2009
6.a b c d William J. Stuntz, The Collapse of American Criminal Justice (Belknap Press/Harvard, 2011)
7.a b c Brad Heath and Kevin McCoy, “Prosecutor’s Conduct Can Tip the Scales,” USA Today, 23 September 2010
8. a bKevin Johnson, “Prosecutor’s Conduct Illegal,” USA Today, 29 March 2012
9. Brad Heath and Kevin McCoy, “Prosecuting Offices Immunity Tested,” USA Today, 6 October 2010
10. Thomas J. Prohaska, “Convicted of Homicide but Convinced of Justice,” Buffalo News, 8 February 2012
11. a b Gene Healy (editor), Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute 2004)
12.a b c Craig Horowitz, “The Defense Rests—Permanently,” New York Magazine, 4 March 2002
13. “Too Many Laws, Too Many Prisoners,” The Economist, 22 July 2010
14.a b c Senator Jim Webb, “What’s Wrong With Our Prisons?” Parade Magazine, 29 March 2009
15. Adam Gopnik, “The Caging of America,” The New Yorker Magazine, 30 January 2012
16. Fareed Zakaria, “Incarceration Nation,” Time Magazine, 22 April 2012
17. a b Paul Craig Roberts and Lawrence M. Stratton, The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice(Random House Inc., Three Rivers Press, 2008)
18. Andrew P. Napolitano, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Thomas Nelson, 2006)
19. Harvey A. Silverglate, Three Felonies A Day: How the Feds Target the Innocent (Encounter Books, 2011)
20. US v. Vanderwerff, US Dist Ct Colorado, 2012 US Dist LEXIS 89812, No. 12-cr-00069 (June 28, 2012)
21.a bUS v. Morrissette, 342 US 246, 96 L Ed 288, 72 S Ct 240

Failure to DEFEND by, The accidental felon (

Failure to DEFEND
by, The accidental felon (
While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.”
US v Twomey; 510 F 2d 634, 640 (2nd Cir., 1975)

The public defender:
  • Neglected to explain the nature of the “knowingly receiving” charge, and ignored the ramification of “intent” contained in the statute, even after my behavior was explained to her;
  • Failed to challenge the Presentence Report despite my objections, instructing me instead to write a legally-useless letter to the Judge, telling “my side of the story;”
  • Insisted on an immediate acceptance of the plea and appearance at a plea hearing despite knowing I was suffering severe prescription antidepressant withdrawal;
  • Failed to correctly describe the plea agreement as a negotiable contract, instead presenting it as an “all or nothing” deal and threatening me with a sentence of 45 years if I refused it as offered;
  • Presented me with a single plea page to sign, rather than going over the agreement point-by-point as she was ethically bound to do. Instead, she assured me, in my depressed withdrawal, that there was “no point” in reading it, thereby concealing the fact that the plea specified an 8-to-10 year sentence instead of the 5-year sentence she’d promised if I signed;
  • Filed a sentencing memorandum that merely described the escalating punishments for child pornography, which not only failed to describe my actions, circumstances or state of mind but didn’t even mention me by name.

The court-appointed attorney:
  • Changed his advice completely, from recommending a withdrawal of the plea at our first meeting to enthusiastically endorsing it at our second. Like the public defender, he threatened me with an increased sentence if I challenged it in any way;
  • Advised me to agree to the charge of receiving as stipulated by the plea, incorrectly assuring me it was possible to get a lower sentence if I did so;
  • Failed to challenge the PSR’s factual errors, including important computer issues, despite being fully aware of their implications;
  • Misrepresented the sentence demanded by the receiving charge, telling me it carried no mandatory minimum, though it does, thereby falsely justifying keeping the plea;
  • Arranged for a psychosexual examination he’d claimed was worthless instead of the supposedly-more relevant one on which we’d agreed;
  • Dismissed the psychologist at a critical moment during sentencing, allowing the prosecution to impugn both the psychologist’s credentials and the report’s favorable findings without any effective rebuttal;
  • Stopped visiting or consulting with me over two months before the sentencing hearing. During that time he set his phone to reject my calls from jail, despite many unresolved issues and questions.
  • Withheld the published article (the original “letter”) from the Judge against my instructions, despite his assurances to me that it would serve to mitigate the errors in the PSR;
  • Neglected to write a personalized, relevant sentencing memorandum to replace the generic one written by the public defender, or in any way address my unique circumstances and behavior as required by 3553(a) law;
  • Failed to get defense material to the Judge within the expected timeframe, forcing the Judge to make a hasty assessment of the material;
  • Advised me, during sentencing, to lie to the Court; 
  • Stopped me from recanting my lie when the Judge offered me an opportunity to do so;Claimed, during sentencing, to have discussed with me a motion to withdraw the guilty plea, when in fact the motion was:
            a) filed by the public defender, not the court-appointed attorney, and not filed until six full days after I’d moved to
fire her, and it was;
            b) immediately rendered null and void by her subsequent dismissal. Not only did the attorney have no control over the motion, he’d never discussed it with me as an option at all;
  • Failed to cite, as required by law, the precedent set by the resentencing of “Mr. E,” even though a comparison of our respective behaviors would have been critically instructive and highly relevant to my case;
  • Refused to visit me after sentencing to explain my options; 
  • Denied me my right to appeal, or respond to the Court through an Anders brief; (My plea contains no waiver of any such rights.)
  • Ignored my repeated registered mail requests for the files which would enable me to pursue my own defense, thereby actively hindering my ability to do so;
  • Misrepresented the law in an attempt to excuse his behavior and prevent me from pursuing further legal action.

The Aftermath by; The accidental Felon (

The Aftermath

In place of the determination of innocence or guilt criminal justice is a conveyor belt that convicts almost everyone who is charged.”[1] Paul Craig Roberts and Lawrence M. Stratton

It took many months to get past the shock of being sent to prison to serve a sentence of over nine years after my attorney had assured me I’d be soon going home. As I began to recover, I tried to make sense of it all. I began to use the prison’s law library, legal books and other media, and to talk to other inmates, in order to educate myself as to what had happened. The resources available to me finally made it possible to learn the truth for myself. 

What I found was disheartening. I’d been ignored, tricked and manipulated at every stage. From the refusal to challenge the Presentence Report as I’d requested, to getting me to sign and keep a plea I hadn’t read, about a law I didn’t understand, to instructing me to lie in court, I’d been coached to do and say the very things that made my conviction assured.

Worst was the stunning discovery that the law was written to punish deliberate behavior and not my random blundering. I’d been carefully explaining (and publicly writing about) the circumstances of my unintentional actions to investigators and attorneys alike since the very beginning. I’d even described my lack of intent in the letter I’d sent introducing my article to the Judge. But my words, like the evidence, were ignored, since they interfered with an easy conviction.

I learned through books and the media that my case was not unique; pleas are used to secure convictions in over 97% of all federal cases[2] regardless of guilt or innocence.[3]From my transcripts and documents I learned how deeply the truth had been obscured from the Court. From independent legal publications such as the Harvard Law Review I learned how the intent of child pornography laws had been eclipsed by prosecutorial opportunism. And from another inmate I learned that my attorney was not allowed to simply walk away from my case after sentencing; on a first conviction an appeal or an “Anders brief”[4] must be filed.

Armed with my new knowledge, I wrote to the court-appointed attorney asking his help in getting my requested, legally-mandated appeal. He replied with a letter that claimed I’d agreed to not file one. Not only was this untrue, it is irrelevant: either an appeal or a brief must be filed, and he had done neither.

His letter further stated that, since I had received a within-guidelines sentence, it was “presumed reasonable.” He either didn’t know, or hoped I didn’t know, that the Supreme Court had declared “The Guidelines are not only not mandatory on sentencing courts, they are not to be presumed reasonable.”[5] Was he ignorant and incompetent, or was he complicit in my conviction? It matters little, now.

Realizing I was on my own, I wrote back to him requesting my legal files and other materials so I could begin to prepare my own defense, but my return-receipt mail request, though accepted, was ignored. I then sent registered mail to him which he refused to pick up from the post office. He had, apparently, decided to hinder my efforts as much as he could.

If that’s true, understanding why he’d do so is easy; what’s hard is imagining a worse defense. There were no positive arguments or evidence entered on my behalf. 

Exculpatory evidence was withheld. Misrepresentations and factual errors went unchallenged, and even basic, required defense procedures were left undone. Some of the statements he made at sentencing contradicted facts and evidence he’d known beforehand; sometimes he even contradicted himself.

In comparison, my public defender merely did a disinterested, acquiescent job, apparently intent on processing my case with as little proactive involvement as possible. Though she knew of my lack of intent (the “Apology” article, which explained it in some detail, was written and published during her tenure) she never acknowledged its importance to my case, or modified her approach in any way.

Despite her passivity, the court-appointed attorney was much worse. Individually, each one of their ineffectual or harmful actions could be considered simple error or oversight, but together they showed what should be considered a disturbing pattern; abdication of the defense attorney’s responsibility to provide a meaningful defense.

1. Paul Craig Roberts and Lawrence M. Stratton, The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice (Random House Inc., Three Rivers Press, 2008)
2. Richard A. Oppel Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” New York Times, 25 September 2011
3. William J. Stuntz, The Collapse of American Criminal Justice (Belknap Press/Harvard, 2011)
4. Anders v. California, 386 US 738, 18 L Ed 2d 493, 87 S Ct 1396
5. Nelson v. US, 555 US _, 129 S CT _, 172 L Ed 2d 719

“ Court of Confusion” by the accidental felon (

“ Court of Confusion” by the accidental felon (

The Attorneys; by the accidental felon (

The Attorneys;
by the accidental felon (

The sledgehammer of draconian punishment is most disturbing when it is used to coax pleas out of individuals with valid claims of mitigation or even innocence, an unsettling situation that has proven to be all too common.”[1] 

Erik Luna

If you’ve never been arrested, you really can’t fully comprehend how much humiliation, stress and fear accompanies being “taken downtown” for the first time. When a public defender arrives to represent you, the relief and gratitude you feel makes you want to embrace them as savior and friend. But attorneys are only human. The amount of hope and trust that you, as a defendant, direct toward them in no way reflects the competence, energy and loyalty that they are able—or willing—to expend on your behalf.

According to the National Legal Aid and Defender Association (NLADA)[2]public defender caseloads frequently exceed the national caseload standard of 150 cases annually by staggering amounts; 800 cases per year were found to be common. A New York Times investigation found some public defenders responsible for over 1,600 cases every yearmore than six new cases every working day! Unmanageable caseloads mean that many public defenders simply don’t have the time to do the most basic tasks, such as investigation or negotiation. Many defendants get nothing more than a few minutes with the attorney, ending in a hurried guilty plea. The result: miscarriages of justice and convictions of the innocent.

My first attorney, a public defender, appeared willing to let the prosecutor have whatever he wanted in my case. She seemed anxious to get a guilty plea and move on, without investigating my claims or educating me on the implications of the decisions she wanted me to quickly make. She never proposed a defensive stance, or explained the meaning of the “receiving” charge, which I had to learn later from another source. When I tried to explain the unintentional way in which I’d obtained the files, she snapped, “Ignorance of the law is no excuse, you know.”

Well, even that is not always true, (e.g., the right to “fair notice”). But what I was trying to explore is the legal concept actus non facit reum, nisi mens rea, Latin for “an act does not make a man guilty, unless he be so in intention.”. I didn’t understand then why the public defender was so uninterested in developing a defense after I’d explained what had happened. I was willing to accept that I’d accidentally broken the law, but I figured if the Court knew I hadn’t done it on purpose they’d go easier on me (mitigation). But now I know that since the use of the word “knowingly” makes intent an integral part of the crime, telling the Court I hadn’t done it on purpose was the same as claiming “not guilty:” It precluded the possibility of accepting a plea. And a plea was predetermined to be my fate, innocent or not.

I was originally charged with nine counts of receiving. This, she told me, carried a five-year sentence for each charge. If I didn’t accept the offered plea agreement I would be sentenced to 45 years in prison. But if I agreed to plead guilty to a single count, I could look forward to serving a sentence of “only” 5 years. She explained that accepting a plea was just a way of avoiding a lengthy legal procedure; and by accepting responsibility I could work with the Judge in what she called the equivalent of a “bench trial” (the first time I’d ever heard that term). Both sides would present evidence to determine my level of guilt or innocence, she said, and my cooperation would make a big difference in the outcome.

This was, I would later discover, almost entirely false. Defendants are almost never given separate sentences for separate charges of the same crime; to do so is a kind of “double jeopardy” that can be overturned on appeal[3]. Presenting it in this fashion was just a way to threaten me into compliance. Accepting a plea is “more than an admission of conduct, it is a conviction”[4] that has nothing to do with any sort of trial. And my cooperation made no difference whatsoever in the length of sentence the prosecution recommended that I receive. She also neglected to tell me that a plea agreement is a contract that can be modified. You can negotiate any item in a plea, from level of guilt, to sentence, right of appeal, and terms of supervised release. Your attorney is supposed to explain it all, and help you negotiate the best possible agreement. But I wasn’t given the opportunity to explore the plea with knowledge or consider any options. I was handed a single page and told, “Sign here or do forty-five years.”

To make matters worse, at this time I was experiencing a painful, cold-turkey withdrawal from my prescription antidepressant Neurontin (generic gabapentin). The facility where I was locked up didn’t have it among the other antidepressants they regularly handed out, nor would they allow me to be supplied from outside. Though the public defender knew of this crippling debilitation, she refused to help me get a medical exemption for the drug, or wait for a decision on the plea until my thinking was unimpaired; she insisted on an immediate response.  I was in no condition to ask any questions. I’d already been an emotional wreck before this had happened. Now I was deeply in trouble over something I hadn’t deliberately done, which was emotionally overwhelming. I signed the plea, and later appeared before the Judge, in a haze of confusion and physical pain.

At our next meeting the public defender gave me the Pre-Sentence Investigative report (PSR). This is an investigation into a defendant’s history, behavior, and the nature of the offense, intended to assist the Judge in making an informed decision. But the document presented to me was so one-sided and devoid of information favorable to me I assumed it had been prepared by the prosecution to enhance their case. It omitted any genuinely relevant, factual data favorable to me while presenting a list of items, no matter how irrelevant, that seemed intended to paint me in the worst possible light. MISSING from the PSR is any mention of the extremely relevant FBI affidavit and investigative report, which explained my lack of interest and intent, as well as the explanation of the random method I’d used to download files. Astoundingly, this information was omitted entirely—though you can’t understand my case without it. BUT INCLUDED is a lengthy description of my lousy high-school grades from over twenty-five years before.

MISSING are the results of the FBI’s forensic examination of the drives I’d used for downloading, showing the state of their contents and the tiny fraction of illegal files (0.3%) out of the tens of thousands of files I’d downloaded, which supports my explanation and claims. BUT INCLUDED is a discussion of the two traffic tickets I’d received in the previous twenty years, neither of which, incidentally, was a DWI or other serious complaint. MISSING is any mention of the positive aspects of my life and work in the community. BUT INCLUDED is an enumeration of my total financial debts of less than $5,000.00

Another disturbing item in the PSR was an assertion that I had been obtaining files for much longer than I actually had. This claim was based on the “file created” dates of the files, stating that those dates showed when the files were “created” onto the hard disk as they downloaded. While this is an accurate description of the behavior of some disk operating systems, including most versions of Windows, it is not true for the Macintosh.

A Mac technical article makes it plain: “The Finder has always displayed the creation date in the File Info box, and also preserved the creation date when copying files.”[5] On a Macintosh, with nearly every version of the operating system including 10.3, the one I used, you simply cannot tell when a file was downloaded—which is just a form of copying—based on its creation date. The operating system merely copies the date that already exists regardless of where it came from.

It was clear that whoever wrote that section of the PSR either had no knowledge of the relevant Macintosh file system, or worse, wanted to make my behavior look more culpable than it actually was. While this date issue didn’t seem all that important at the time (though it would later prove to be), it was part of the unsettling tendency of the PSR to be factually inaccurate. When I objected to the errors, omissions and misrepresentations of this supposedly-unbiased report, the public defender just shrugged. She didn’t tell me I had a right to challenge inaccuracies, or that I could submit my own information to be put into the PSR. In fact, she downplayed its importance altogether, despite the fact that the PSR is a document that follows you throughout your legal travails, continually referred to by the Court, the Bureau of Prisons, and ultimately, your Probation Officer.

In fact, if you agree to a plea, for all intents and purposes the PSR is the trial—you will be sentenced according to the information it contains. (Or, possibly worse, on what has been left out.) Instead of taking the time and effort to help me challenge the PSR, she told me that I could write a letter to the Judge, telling “my side” of the story. She implied that the Judge would give my letter consideration and weight equal to the information presented in the PSR.

So I began a letter that would not only address the PSR’s deficiencies, but also present a more balanced picture of my circumstances and behavior. As I wrote, it occurred to me that this explanation would be useful on a broader scale, as well. There were lots of people who were shocked by my arrest; I wanted to explain to them what had happened. Since I didn’t seek out those files or participate in any illegal activity I saw no reason to avoid the topic; rather, I was anxious to talk about what really happened. Eventually my letter to the Judge became a 5,000-word article that was published in the paper where I’d been writing my weekly column. It largely succeeded in showing my family and friends that I’d only been depressed and careless. Unfortunately, the Judge, for whom it was originally intended, never read it.

The worst news in the PSR was the result of my plea agreement. It calculated my sentence, not for the five years to which I’d verbally agreed, but for one of eight to ten years, reading, “the defendant is being held accountable for all provable conduct known to the government prior to the plea.”. I’d actually agreed to plead guilty to a sentence I might have gotten had I gone to trial on my original charges and lost. I’d signed away my rights for nothing. I had a hard time understanding how the prosecution could rescind what I’d been told was a specific offer, but the public defender offered no suggestions and no support. I started agitating for a more proactive defense, or even a withdrawal of the plea. In subsequent meetings, she grew increasingly irritated with me, never informing me that I had certain rights of discovery or acknowledging that a public defender is obligated to prepare a reasonable defense.

She also refused to acknowledge that my case was substantially different from other child pornography prosecutions, though the law in 18 USC 3553(a) actually requires that all cases be evaluated on an individual basis. These “3553(a) factors” include such things as the circumstances of the offense, the history and characteristics of the defendant, the kinds of sentence and sentence range necessary to accomplish certain goals, and the need to eliminate sentencing disparities between defendants with similar records and conduct. This individual consideration may be included as information in the PSR, or as part of a negotiated plea, but it is most often part of what’s called a “sentencing memorandum.” This is a document prepared by the defense attorney to acquaint the court with the 3553(a) factors listed above, to personalize the case and put a human face on it. Instead, the public defender filed, as a sentencing memorandum, a generic essay on the history of the child pornography laws. This document, which should have been an examination of my circumstances and behavior, doesn’t even mention me by name, (except in the title and conclusion) much less discuss anything that I’d been through. As a personalization of the case it is a complete and utter failure; a sad commentary on the lack of effort expended on my behalf.

I learned it is possible to fire your public defender by filing a motion requesting a “Marsden Hearing.” Although I could not choose my next assigned attorney, I was desperate to get an adequate defense. In an odd postscript, I later discovered that the public defender had made a motion to withdraw the plea, but only a full six days after I’d filed to dismiss her. This timing meant that her motion had no practical significance whatsoever; it was immediately rendered moot by her departure only two days later; a period in which she didn’t bother to contact me to tell me she’d made the motion. It was a purely symbolic gesture, later presented to the Court as an example of “the effort made” on my behalf.

My new attorney was young and confidence-inspiring, though he’d never before worked in federal court. Unlike the public defender, he appeared to understand the concepts of anonymous file sharing. After reading through my documents, he felt we might be able to successfully challenge the charge if we did withdraw the plea, since there wasn’t any evidence of deliberate activity; which was the mitigating defense I’d been pushing for all along. But what he didn’t explain to me then was that intent is an “essential element” of the statute—without it there is no crime—and as you’ll see by his behavior in court I’m pretty sure he didn’t understand that himself. 

Too, like the public defender, he assured me there was no need to challenge the problems and deficiencies of the PSR (which at that point would have been a tremendous amount of extra work for him). He also told me that after looking over the reports, he’d discovered that although I was described as having 36 video files, there were actually only eighteen unique files in two duplicate folders. But prosecutors don’t count unique files, they just count the total—as though there’s something you can do with two copies of the same file, on the same computer, that you cannot do with one. It’s a meaningless difference, anyway. There is no legal difference between 18 and 36 video clips because of the way they’re counted. The legal system counts only[6]to seven. Eight videos or more are, from a punishment perspective, the same as a hundred: the maximum. As a result, nearly every defendant (96% of all child pornography cases) is given the highest punishment possible. (Each video is also legally the same as 75 still images. So you’ll frequently see 9 or more video clips described instead as “more than 600 images”—a much more dramatic-sounding number.)

Contrast my numbers with a genuine collector, who was found with “up to a million still images and over 300 movie files,”[7]or the man in Kansas found with what’s described as over three million illegal images.[8]When 8 fifteen-second video clips carry the same legal weight as 100 full-length videos, it’s easy to see that the measuring system is lopsided and disproportionate. A true sliding scale of relative guilt would have most defendants in the middle of the range in a bell curve distribution. Instead, nearly all defendants are crowded into the highest end of the range.

We also discussed a child porn resentencing that had just occurred. The same Judge who was scheduled to hear my case had reduced a defendant’s sentence from eleven years to six-and-a-half, publicly commenting that the goals of child pornography sentences with respect to individuals had been lost. This was good news for me, since the law[9]requires that similar crimes get similar sentences, and even a casual comparison of the two cases reveals that the other defendant’s behavior (let’s call him “Mr. E”) was far worse than my own. 

  • Mr. E had supported the child pornography industry by purchasing pictures and videos. In contrast, I’ve never even visited or browsed a site where child pornography is available, much less bought any.
  • He traded illegal material with at least one other collector, which means he’d taken the time and effort to locate others with the same interest and begin a dialog with them; deliberate behavior completely foreign to me.
  • He was found with more stills and videos than I’d had.
  • After he’d been caught, Mr. E’s computer had been confiscated, but he bought another and immediately purchased more child pornography. By comparison, I’d stopped even random downloading about six months before I was raided and by the time of my arrest I’d had no contact with child pornography in over a year.
  • Mr. E had hidden evidence from the police and asked others to help him do so; I’d cooperated fully with law enforcement.
  • He’d been initially charged with more counts than I had: 44 to my 9.
  • Most tellingly, his initial psychosexual examination revealed that he was at “moderate to high” risk to reoffend; my only such exam showed I have the lowest potential to do so.

So the fact that I was to appear before this same Judge was encouraging. If Mr. E deserved such a sweeping reassessment, then surely I deserved an even greater consideration. I was relieved; believing I finally had an attorney on my side, who said he was looking forward to a fight to clear things up and make them right. I felt confident in putting my trust in him.

Astute observers of the federal criminal justice system have long

since given up believing that the guilty plea reveals true culpability. It’s all too

common for such pleas to be the product of risk avoidance at the expense of truth.”[10]

Harvey Silverglate

A few days later, my attorney was back. “You cannot win,” he said. Reversing what he’d said at our first meeting, he now poured all his effort into convincing me to let the plea stand, without mentioning the possibility of renegotiation or making modifications. He told me that it didn’t matter if I were guilty of the charges or not; simply having the files on my drive was enough to get me convicted. He said that if I went to trial, the prosecutor would insist on a jury trial, pack the jury with elderly retirees who’d never seen any adult material, then horrify them by showing the files in court. Then, the government would add additional charges, including perjury, since I claimed to be innocent, and obstruction of justice, for forcing the government to go to trial instead of “admitting my guilt.”. This kind of threat, intended to force defendants to accept a plea they might otherwise resist, is called “charge stacking,” and is explained by the late Harvard law professor William Stuntz, author of the book, The Collapse of American Criminal Justice.[11] Charging a series of overlapping crimes raises the odds that a defendant will be convicted of something and often allows a prosecutor to threaten a harsher sentence than would attach to any single offense.”. Even if I were able to beat a receiving charge, I could still be found guilty of one or more of the added-on charges. Plus, juries are much more likely to rule against a defendant charged with multiple offenses.

In a New York Times article by Richard A. Oppel, Jr.[12], you can read the specifics of how one prosecutor stacked charges that increased the sentence from an initially-refused plea deal of only two years to charges that meant if the defendant were found guilty, he would face a mandatory life sentence. The net effect, Professor Stuntz says, is to “raise defendants’ incentive to plead guilty.”[13]

My attorney suggested a different approach; we would “attack” the plea at sentencing, challenging the idea of deliberate acquisition. This sounded reasonable, since at this time I believed that a lack of intent could only be used to lessen my sentence. I didn’t understand that since intent was a necessary element of the crime I wasn’t actually guilty, and my attorney did nothing to change that faulty understanding all the way through sentencing. He said that he would ask for what’s called a “downward departure” from the sentence called for in the plea, advising me that it wasn’t necessary to withdraw the plea in order to get a sentence appropriate to my behavior.

He told me I was lucky the government had only charged me with receiving, since, he assured me, receiving carries no minimum sentence. This isn’t true; receiving carries a five-year mandatory minimum. It is the charge of possession that has no minimum, though it’s worth noting that even the crime of possession requires intent. He also said he thought I might even be able to get off with “time served”just over a year at that pointif I just played along.

I thought keeping the plea, with its declaration of deliberate activity, was a terrible idea, if only from a personal perspective. Since I’m not a pedophile I hated the idea of being labeled as someone who had intentionally been involved with child pornography. It meant renouncing what I’d publicly stated about my actions and state of mind. But as Roberts and Stratton point out in the book, The Tyranny of Good Intentions “Truth is the plea bargain’s greatest casualty.” Going to trial was presented as the only option to the plea. And a trial was guaranteed by both attorneys to be a brutally punishing failure. By this time I was desperately weary; emotionally exhausted after staring at the walls of a twelve-by-seven foot cell twenty-three hours a day for over a year. If I could get a reduced sentence by having my attorney show there was no intent, then I was willing to cooperate by not repudiating the plea.

It wasn’t until much later that I learned I’d been misled about the possibility of a reduced sentence. And only court procedure finally exposed the fundamental errors in his proposed plan, stripping away any chance to mount the defense I’d been promised. We discussed the idea of presenting a psychological defense. My attorney believed that even a positive psychosexual examination would have no value in court. But he agreed with my suggestion that another kind of test might be helpful to explain my actions. It’s common knowledge that people react to emotional trauma with unusual behavior. Stress and depression had reduced my rational decision-making to the point of numbness. Any individual one of the things I’d been through is considered to have a major effect on a person’s mental health, the cumulative effect even more so. My attorney said he would petition the court to provide a “forensic” psychological examination to determine what level of responsibility I’d incurred for my careless behavior.

I was disappointed by the way my defense was going, since my attorney had changed his attitude so drastically, but I had no choice other than to trust him. He came by for a brief visit to tell me that his petition for a psychological exam had been granted; there was no more discussion of legal issues. A week or so later, two psychologists came to the jail. As they began unpacking a rather large case of books and test materials I asked, “Why all the books for a forensic exam?”
We’re not here for a forensic examination,” I was told. “We’re here to give you a psychosexual test.”

I was confused. Just a few days before, my attorney had assured me that a psychosexual exam would be of no use to my defense, and now here were people he’d sent to give me one. I wasn’t concerned about what the test would show. What concerned me was that I wouldn’t be able to explain the circumstances that had resulted in my carelessness. I hoped he’d also scheduled a forensic examination for another time. I was told the results of the test would be available in less than a week, and that my attorney would bring them by for discussion.

(The test did ultimately show that I have a non-violent sexual attraction limited to adult females, and am at the very lowest risk to be involved with child pornography in the future. Built-in safeguards in the tests showed that I had responded honestly and accurately. It’s worth noting that these were the same psychologists who administered the test to “Mr. E.”)
The psychosexual exam took place in mid-August of that year. I was scheduled for sentencing on October 15, which left plenty of time for my attorney and I to review the results, discuss his strategy, and acquaint me with what I could expect when I went to court.

After about ten days without hearing from him I began to worry. I tried calling him, only to discover that he’d set his office phone to reject all calls from the jail where I was being held. Nor was he responsive to calls from anyone else on my behalf. He apparently felt no responsibility to communicate any further with me. I tried not to panic. I’d already given him what information I’d been able to assemble from inside jail, such as the article I’d written for the Judge and letters of recommendation from people who knew me. (It is usually the defense attorney who assembles such material, not the person stuck in jail with limited communication ability. But neither one of my attorneys made any such efforts.) This kind of material is usually presented to the Judge far in advance of any hearings in order to allow for a thoughtful and reasoned consideration. I believed progress was being made on my behalf even if the attorney was unavailable.

September passed and I still had not seen or heard from my attorney since before my psychosexual exam. I was definitely alarmed. Finally, just a week before my scheduled sentencing, a friend got through to the attorney. Incredibly, he had not yet contacted the psychologist to get the results of the test I’d taken, nor had he scheduled the promised forensic examination, offering no explanation for his behavior. He did admit that he should get the sentencing pushed back a week. But both weeks passed without a visit. I was deeply concerned over my attorney’s remarkable change in attitude and lack of interest in my defense. He seemed to have abandoned any pretense of looking out for my best interests; indeed, when you see what happened later, you might even think he’d been working for the prosecution.

1.Gene Healy (editor), Go Directly to Jail: The Criminalization of Almost Everything (Cato Institute 2004)
2. “Five Problems Facing Public Defense on the 40th Anniversary of Gideon v. Wainwright,” National Legal Aid and Defender Association (NLADA),
(accessed 11 June 2012)
3. US v. Chiaradio, 1st Cir., No. 11-1290 (July 11, 2012)
4. Boykin v. Alabama, 395 US 238, 23 L Ed 2d 274, 89 S Ct 1709
5. “File Creation Dates on Mac OS X: Clash of the Cultures,” blog, 27 June 2006, (accessed 11 June 2012)
6. “The History of the Child Pornography Guidelines,” (United States Sentencing Committee), October 2009,
(accessed 11 June 2012)
7. US v. Fabian, US Dist. Court E.D. Michigan S.D.; 2010 US Dist LEXIS 103100; case no: 10-200207
8. “Elderly Man Found in Possession of 3M Child Porn Images,”, 16 November 2010,
(accessed 22 September 2012)
9. 18 USC 3553(a)
10. Harvey A. Silverglate, Three Felonies A Day: How the Feds Target the Innocent (Encounter Books, 2011)
11. William J. Stuntz, The Collapse of American Criminal Justice (Belknap Press/Harvard, 2011)
12. Richard A. Oppel Jr., “Sentencing Shift Gives New Leverage to Prosecutors,” New York Times, 25 September 2011
13. See also Jacob Sullum, “Plead Guilty or Head to Prison for Life,” New York Post, 2 January 2013