GPSolo Magazine - January/February 2006
Defending Virtual Crimes
A true story. Defense counsel stood before the court and argued for almost an hour and a half providing reason, legal theory, and precedent supporting his request to inspect the computer and files seized pursuant to a search warrant in a computer child pornography prosecution. When he sat, he looked at his co-counsel. Each could tell what the other was thinking. The judge had to release the evidence. Fundamental fairness—the very foundation of the criminal justice system—dictated that the defense must have the opportunity to possess the evidence. Without it, an expert could not determine when the images were downloaded, whether they were actually downloaded from that computer, and whether any intrusions on the computer had compromised the investigation. These are but a few of the many facts that must be determined in child pornography cases. Even the defendant in his orange prison jumpsuit seemed to show some optimism for the first time in months.
The prosecutor stood and slowly walked to the podium. Her file was a fraction of the size of defense counsel’s. With conviction she exclaimed, “But, Your Honor, this is child pornography.” She took a deep breath and moved her way back to her seat. Everyone in the courtroom looked at each other. This must have been a joke.
But it was not a joke. In fact, it took the judge only about one minute to state his reasons for denying the defendant’s motion, and they didn’t stray far from the argument made by the prosecutor.
Computer child pornography cases are some of the, if not the, most difficult cases to defend today. Alleged offenders are vilified constantly in the media. Politicians call for stiffer penalties, and communities vote to exclude offenders from their neighborhood. A jury trial seems entirely unrealistic, and elect-ed judges find it unthinkable to release a defendant accused of such a crime; judges know full well that local newspapers and broadcast news stations would never recognize that the law might dictate a decision to release such a suspect. The media would simply characterize the judge as unfit to protect the citizenry.
To successfully defend these cases, counsel has to depart from the routine steps. The defense lawyer must first analyze the audience, whether it is the prosecutor during plea negotiations, the judge during evidentiary hearings, or the jury. The lawyer must understand the psychological aspect of the offense as he or she will be required to teach the audience; the need to humanize the offender is crucial. Throughout, counsel must question every aspect of the case, from the forensics to the integrity of the investigation. Realizing that a court may deviate from the strict application of the rules of evidence, counsel must be relentless in keeping the court on track.
Prosecutions involving computer pornography are in their infancy. The case law is just starting to evolve. It will do so rapidly as the number of cases have steadily climbed recently, owing to the federal government’s recognition of growing computer use and consequent increased funding of prosecutions.
Today’s successful defense practitioners know that to properly represent a client charged with some form of computer sex crime, they must dedicate themselves fully. A prolonged and dynamic effort is mandatory as the risk of unfavorable precedent looms ahead at every juncture.
Ian N. Friedman practices in Cleveland, Ohio. He can be reached at email@example.com.