Friday, August 1, 2008

To plea or not to plea? That is the question.

I do a lot of criminal defense work, especially in the areas of sex crimes. As I follow cases, work with attorneys and talk to attorneys about these types of cases, I am wondering just how many of them get pled out without the benefit of a balanced perspective on the technical evidence.

Let me present a hypothetical scenario:

Joe Coach is accused of possession of child pornography. It makes all the local papers and is picked up up by the bigger newspapers so that it is broadcast via television, newspapers and web sites statewide.

What typically happens in these cases? Let's be honest. Most people who read about these types of charges assume guilt, not innocence. It is such a heinous thing to want to look at sexual pictures of children, that this attitude is understandable, even though it goes against our system of "innocent until proven guilty."

So Joe Coach makes the papers because of allegations of child pornography. He may not be charged at this juncture, however his computer gets taken by law enforcement and analysed. The law enforcement agency's forensic person issues a report back to the investigating officer who then presents it to the DA to determine if there are chargable pictures.

The forensics report looks something like this:

48 images of interest were located in the internet cache and are included in the report for review by the DA.
9 images of interest were recovered from unallocated space and are included in the report for review by the DA.

Upon review of the images, the DA decides to charge Joe Coach with 57 counts of possession of child pornography.

Joe Coach gets arrested, is taken to jail to await a bail hearing. Joe Coach makes the papers again.

Joe's defense attorney files a motion for discovery to get a copy of the forensics report and the charges, search warrants, inter alia.

By this time of course, Joe has either resigned his position or been fired. He is the subject of public disgust. His friends abandon him in disbelief. Maybe his wife leaves him and takes the kids. At this point, no one believes he is innocent, even though we are "supposed" to believe exactly that, until his case is heard and decided.

Joe's attorney reviews the forensics report from the prosecution and then goes and views the chargable pictures. They are all very graphic and disturbing.

Joe maintains that he has no interest in child porn and does not look for it or view it on the web. Joe admits to his attorney that he likes to surf porn sites and prefers the teen porn sites. He remembers that sometimes, the web sites he visits will open other web sites in windows that he has to close. He also remembers that some of the web sites he visits have galleries showing web sites with other types of porn, some of which could be child porn sites, but he never clicks on any of the links.

Joe's attorney explains to him that he is facing a possible sentence of at least 25 years in prison for possessing these pictures, maybe more depending on the judge, if he is convicted.

Let's review the facts in this case at this point:

  • Joe's computer was siezed via a legal search warrant based on good probable cause.
  • Forensic analysis of Joe's computer did in fact reveal 57 pictures of child pornography located on his hard drive.
  • Joe admits to surfing porn and searching for teen porn on the computer.
  • Forensic analysis of the computer showed searches for terms such as "barely legal", "teen hardcore", cheerleader porn", and so forth.
  • In addition to the chargable pictures, there were hundreds of other porn images on the computer, many of which would appear to be "on the line" between of-age and under-age models.
  • Joe's maintains that he never searched for or looked at child porn.
  • The prosecution's computer forensics expert will testfiy to the facts of locating the chargable images on Joe's computer.
  • No one else uses Joe's computer and it is password protected.
  • No one is willing to testify as a character witness for Joe at this point. Everyone he knows is too horrified at these charges and doesn't want their name associated with an alleged "pedophile." (Even though Joe has not been charged with anything involving contact with a child.)
At this point a couple of things can happen:


Knowing that all the State has to do is prove possession, that there is clearly evidence of possession, and that the pictures are disturbing, going to court at this point to present a defense in front of a jury is not a good scenario for Joe Coach.

Basically you have three options at this point:

1. Go to court with what you have.
2. Try to negotiate a favorable plea bargain for Joe.
3. Hire a defense expert to help you. Preferably one experienced in this type of crime.

The problem is that many attorneys, at least in my state, are not even aware that such defense experts exist, what they can bring to the case and how to find the right expert.

Many experts in my field will not take these cases for various reasons. Additionally, even if you find one who will take the case, do they have the experience and technical qualifications to bring to the table?

This is why I believe that the present situation is causing am imbalance of justice. The State will always have an expert on their side. Like it or not, people are predjudiced against people who are arrested for these crimes.

Is there a history of many of the people accused of these crimes being guilty. Yes. Are all of them guilty? No.

Is it not in the best interest of the client and the justice system to present the best defense possible? Of course it is.

Are the scales of justice really balanced based on the resources available to the State and to the defense? I will leave that for you to decide.

...

2 comments:

  1. While attending various training classes, the instructors, often ex-law enforcement, look upon the defense expert with disdain.

    Reading your hypothetical is interesting, but would the prosecution forensic expert really present the evidence that way? Would he not realize that they were the result of drive-by website browsing and not active searching?

    In other words, does the forensic expert for the prosecution have ethics?

    ReplyDelete
  2. It is not a question of ethics, but a question of process. In many cases, the law enforcement examiner is not part of the local team, but is a shared resource such as a state, multi-county or federal lab.

    The examiner does not have discretion regarding contraband material as it is not the role of the examiner or even the lead investigator to decide what will be charged and subsequently prosecuted.

    Prosecutors make those decisions as well as what will be presented and how it will be presented according to the theory they develop for the trial.

    If they decide to prosecute, conviction is the goal, not exoneration of the accused.

    The examiner as expert witness can only provide answers to the questions asked.

    ReplyDelete

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