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Friday, January 16, 2015

Head Versus Heart Applying Empirical Evidence About the Connect.pdf; Emily Weissler

How Much Evidence Is Enough For a Child Porn Conviction? - U.S. Fifth Circuit; by Brett Snider, Esq. on January 16, 2014

How Much Evidence Is Enough For a Child Porn Conviction?
 By Brett Snider, Esq. on January 16, 2014 

It's a classic defense: The child porn on the computer wasn't mine, it belongs to my roommate ... or, or my girlfriend!

A jury didn't buy this line when James William Smith's counsel sold it in his criminal trial, but his conviction was overturned for lack of evidence. Then the Fifth Circuit overturned the lower court, affirming the jury's conviction.

How much is enough evidence to sustain child porn charges?
Child Porn Possession Charges

Smith was charged and convicted under 18 U.S.C. § 2252A(a)(5)(B) -- knowing possession of child pornography. After his conviction, Smith sought a new trial in 2012, according to The Associated Press, but may have been delighted to have the federal district court throw out his conviction.

This acquittal was accomplished on the strength of the district court's granting Smith's Rule 29 motion for acquittal, citing a lack of evidence necessary to prove Smith knowingly possessed the alleged child pornography.

In order to satisfy the elements of his child porn charge, a rational juror must have been able to find beyond a reasonable doubt that:

- Smith knew the files on the computer were child porn and

- That Smith possessed the child porn.

Smith maintains that the trial jury did not have sufficient evidence for either of these elements, but the Fifth Circuit disagreed.
Possession is Nine-Tenths of the Law

Possession in child porn cases need not be actual possession of the computer that contains the files. The court recognized that in other Circuits, it was enough to simply have willfully downloaded the child porn files to establish possession.

In Smith's case there were three possible suspects: his roommate, his girlfriend, and himself, all of which had access to the computer. Smith did not testify, but his girlfriend provided him an alibi for the time in which the files were downloaded. His roommate denied having downloaded the files but had no alibi for the dates of the downloads.

So a jury just needed to believe the prosecution and not Smith's alibi, which seems possible. Courts are mindful to give deference to jury verdicts because the jury is in a rare position to judge credibility.

Remember, the courts don't want to retry the case from the bench, it's just enough to know that a reasonable jury could have reached the guilty verdict. And while it's possible that the jury could have believed that Smith's roommate was actually the child porn culprit, it was not unreasonable that they did not.

The Fifth Circuit came to the same conclusion in a related case, U.S. v. Woerner in 2013.

Bottom Line
The evidence was sufficient for a jury to find that Smith was guilty, despite some other possible theories which they ignored. Juries are allowed to pick and choose which evidence they credit in making their determination of guilt, and the courts are fairly deferential to their choices.



milan-v-city of Evansville.pdf

milan-v-city of Evansville.pdf

How Florida Police Falsely Arrest & Shame Men As Child Sexual Predators, Steal Their Cars... Then Try To Hide The Records; by Mike Masnick

How Florida Police Falsely Arrest & Shame Men As Child Sexual Predators, Steal Their Cars... Then Try To Hide The Records by Mike Masnick
Eric Goldman calls our attention to a rather astounding story out of Florida, involving how various Florida police departments are engaging in what appears to be basically sham "sting" operations online to arrest and shame men as child sexual predators, then steal their cars (sometimes offering to sell them back), and then doing everything possible to hide the records. The whole thing is quite crazy, and I recommend reading the entire thing. It also comes as little surprise that one of the sheriffs deeply involved in this is Polk County Sheriff Grady Judd -- who we've written about a few times before. Back in 2009 we wrote about Judd using Craigslist to find and arrest prostitutes... and then blaming Craigslist, the very tool he used to track down the lawbreakers. A year ago, Judd got a lot more attention for his plan to arrest parents of some girls who were accused of bullying another girl into committing suicide (though, eventually charges were dropped and almost no evidence of any bullying was found).
Those past stories fit with the same pattern that WTSP's "10 Investigates" reporter Noah Pransky found in researching these stings. You know the basics of how these stings work, because they appear to be police-led versions of the famed "To Catch A Predator" TV show. But, quite frequently, the actual cases seem to involve the police going after men who were seeking adult companions, and then doing everything possible to try to convince them that they're interested in minors:
In the case of a 27-year-old Cape Coral man, arrested during the Lee County Sheriff's Office (LCSO) sting this past May, deputies arrested him even though he didn't even travel to meet a child for sex. Law enforcement officers responded to the man's legal "casual encounters" Craigslist ad, pretending to be a 14-year-old girl, even though the ad said, "age for all women must be 18+ no one under email me plz."
The man repeatedly told the undercover detectives that he was "not OK" with meeting up with an underage girl, but because he didn't immediately end the conversation, he was arrested for utilizing his phone to solicit a sexual act from a child. Detectives went to his house and arrested him as a sexual predator of children.
Prosecutors decided there was insufficient evidence to prosecute on either of the accused charges, yet the accusations and man's name remain on LCSO's online press releases and other media outlets' news stories.
Even in some cases where this cajoling and pushing by the police led someone to say OK, the details seem fairly questionable:
A 19-year-old man in Orange Co. was accused of soliciting the guardian of a 13-year-old decoy to arrange sex with her. But the evidence proved differently, as the man was merely responding to an innocuous ad from a 26-year-old woman, which was posted by law enforcement. The detective later tried to convince the man to have sex with the woman's "younger sister," even though he showed little interest.
According to notes from the prosecutor, "this is a tough case" because of "entrapment issues." The man chatted with what he believed to be a 26-year-old woman for five days and the "Law Enforcement Officer suggest(ed) sex first on 2nd day." The defendant said several times he wasn't interested in the 13-year-old, even suggesting he bring a younger teenager boy for the girl when the detective kept bringing the teenager into the discussion. The prosecutor also noted the "law enforcement officer again suggests illegal sex 2 more times" but the defendant was non-committal."
Ultimately, after hundreds of text messages, the man agreed to sex with both females, and was arrested upon arrival. The state declined to prosecute, but the accusations and man's name remain public record.
As the report notes, many of these men are cleared or no charges are ever actually brought against them, but they're still publicly shamed in press releases, declaring them child predators. To add insult to injury, the police often steal their cars, using questionable asset seizure laws:
Sex stings have become especially rich sources for seizures, since almost every man arrested is accused of traveling to seduce, solicit, or entice a child to commit a sexual act…even though no real children are ever involved in the stings. However, the accusations are felonies, meaning law enforcement can seize suspect's vehicles, making it extremely difficult for them to ever get them back without paying thousands of dollars – or more - in cash to the arresting agency.
For example, in one January 2014 sting where the Clearwater Police Department (CPD) and Pinellas County Sheriff's Office (PCSO) arrested 35 men in a single weekend, CPD seized 19 cars as their own under Florida's Contraband Forfeiture Act.
And even when the people are cleared or charges are dropped, they often have to pay up to get their own cars back, if they can get them back at all:
One 24-year-old man, arrested in the January sting in Clearwater, had to pay $10,000 cash to get his 2014 Lexus returned. And even though all felony charges were later dropped in his case, he will not get the money back for either the negotiated settlement or the fees he paid an attorney to handle the vehicle case.
Grady Judd's Polk County is also noted as seizing $15,900 from someone and then "negotiating" to give him back half of it and keeping the other half.
And, of course, the police who are engaged in all of this are also lying about the seriousness of "the problem" while doing everything they can to hide the real details from public view. The article quotes Judd again, insisting that men seeking children was a major problem in South Florida, but the actual evidence -- obtained by WTSP -- shows otherwise, with prosecutors quietly admitting that they have zero cases actually showing that happening.
In 2013, a prosecutor declined to pursue "traveler" charges against a man caught in an Osceola Co. sting because the "state tried to find evidence that the crime of solicitation of minor via computer (parent) was taking place…there are no known cases."
The prosecutor notes the detective "asked ICAC affiliate + the FBI and was able to come up with about 5 examples Nationwide. None in Central FL."
Another Osceola Co. prosecutor in the case of a 21-year-old defendant wrote, "biggest concern was entrapment argument b/c the LE Operation was not really addressing on-going criminal activity…There have been NO documented cases in this area of parents being solicited on-line for sex w/their minor children."
But WTSP was only able to find this out via accessing court records -- and not via public information requests.
10 Investigates has pushed to see other records from law enforcement officers responding to legal dating ads on legal dating sites, but almost every request has been refused. Often, public record exemptions are cited, ranging from "active investigation" to "confidential surveillance techniques," but a Lee County Sheriff's Office spokesperson said records from their June sting had already been destroyed by July.
Similarly, in a related report, WTSP quoted Judd blocking access to such records:
Judd says the records are exempt from state records laws because all of those men are still "under investigation," for they may surface in future stings. However, that indicates Judd - and other law enforcement leaders around Tampa Bay and Sarasota who have now used the same exemption to withhold records - have active investigations open on hundreds, if not thousands, of men who did nothing more than legally communicate with adults on legal websites.
That same article notes that of the 1,200 men arrested as "sexual predators," 97% have zero history of sexual crimes -- and further notes how the police have no problem continuing to shame even men who are cleared:
The state's best-known lawman also showed little concern for due process during a Tuesday press conference to tout arrests since March in predator-style stings. He pointed to 132 mugshots on a giant posterboard and called the men "sexual predators."
But when 10 Investigates pointed out some of the men had already been cleared of charges, he said they were still fair game because "we have a very liberal - a very forgiving - criminal justice system."
That system may give defendants the benefit of doubt and assume "innocent until proven guilty;" but Judd makes sure the mugshots and stigma of being arrested for a sex crime haunts the men for the rest of their lives.
That statement is fairly incredible, but it gives you some insight into the mindset of Judd and some others involved in these efforts. These people are guilty no matter what -- and they will do anything to get them arrested, and then even once they are cleared of any charges, the police will continue to treat them as guilty.
None of this is to diminish the very horrific and tragic reality of situations that do involve actual sexual predators. Those people should be investigated and caught if possible. But what's happening in Florida doesn't seem to have anything to do with legitimately going after predators. Instead, it seems like a combination of entrapment, bogus online stings, high profile shaming of innocent people, stealing their property through asset seizure laws and then abusing public records laws to cover up the details.