Hot For Teacher No More

An AP report Friday showed that ten states have taken action in the past few months to crack down on sexually abusive teachers in our nation's schools. This comes on the heels of a previous AP study that found 2570 educators had lost their teaching credentials or otherwise been sanctioned from 2001-05 because of sexual allegations involving students. The report goes on to state:

While the vast majority of America's roughly 3 million public school teachers are committed professionals, a disturbing number have engaged in sexual misconduct. When faced with evidence of abuse, administrators sometimes fail to let others know about it, and legal loopholes let some offenders stay in the classroom. Experts who track sexual abuse say the problem is even bigger than those numbers suggest. Underreporting is common, they say, because victims often are ostracized and accusations are difficult to prove. Governors, state education officials and lawmakers have led the push for new measures, which include tougher penalties for teachers who abuse students, punishment for administrators who fail to properly oversee their faculty, and an effort to train an entire state's corps of teachers to recognize potential abusers in their midst.

These measures include Maine legislation that will require school districts to share information on a teacher disciplined for any reason, including sexual abuse, as well as a Utah law that will permanently revoke the license from any educator guilty of sexual abuse. Several other loopholes have also been closed off or severely curtailed in various states:

• Backroom deals. Florida's new ethics law for teachers bars school districts from entering into confidential agreements with teachers who get in trouble. Such deals crop up around the country, allowing schools to remove a problem teacher but letting that educator quietly move on to another district or state.

• Failing to report. Kentucky's law raised the stakes for officials who fail to report allegations of abuse, bringing 90 days in jail for a first offense and up to five years in prison for repeat violations.

• Problem teachers returning to the classroom. Colorado would require any teacher who lost a license for sexual misconduct to promise never to teach again. The measure awaits Gov. Bill Ritter's signature. Virginia closed a gap that made it possible for teachers who abuse students to be hired by another school district in the time between when they are fired and when the state Education Department is notified.

• South Carolina looked beyond punishment, instead creating a statewide training program that aims to instruct 10,000 teachers, administrators, guidance counselors, coaches and school nurses on how to prevent, identify and report cases of abuse.

Now, don't get us wrong, we are 100% behind the notion that sexually abusive educators have absolutely no business working in our childrens' schools. If a teacher thinks that he/she should be dating (or worse) someone in their teens (or worse), then he/she should face the appropriate consequences, including job-related sanctions as well as possible criminal charges. These people do not belong in the educational system, no matter how well they can explain Chaucer or teach derivatives. But what bothers us is the last paragraph of the report:

The training will focus not only on stopping sexual predators but on preventing simply inappropriate relationships, said schools Superintendent Jim Rex. Sometimes young, naive teachers do improper things, with no ill will toward the student, and get into trouble, such as texting students' cell phones or giving them a ride home. "So much of what schools do is based on trust. Not only must kids trust their teachers, but parents have to trust those teachers too," Rex said. "And schools have to earn that trust each and every day."

We've all heard of doctors practicing defensive medicine - ordering up myriad tests to cover every base in an effort to avoid liability - but we're afraid that the educational climate is getting to a tipping point where teachers are practicing defensive mentoring. As we think back to our nascent years, we recall that our very best teachers were those who were indeed willing to cross an invisible barrier and give us that extra attention we sought or needed, the pat on the back when things weren't going well, or the ride home when our parents got stuck at work.

Granted, in our case the pat on the back never turned into a hand on the ass, but it is a shame that we're losing this teacher-student relationship that goes beyond the in-class pedagogy in the name of fighting sexual abuse. Clearly, the one-tenth of one percent of bad apple teachers are resulting in a significantly devalued education for the rest of our children.

Around the Square (06.02.08)

Today marks the first installment of a new piece called Around the Square that we'll be posting periodically (hopefully a couple of times a week) that will capture some of the interesting stories out there percolating in the news feeds and blogosphere that may not rise up to the level of a full posting, but are still worth briefly writing about. We're calling it Around the Square because we often feel as if we're a lonely town crier screaming at the top of our lungs about the obvious and apparent injustices placed on those accused of sex crimes, while the restless and bloodthirsty mob is gathering nearby with pitchforks and torches in tow.


We start with a story from Hamilton, NJ, where a popular high school football coach seems to be getting railroaded by the local prosecutor for pulling a female student away from a 6-year old that she was harassing. He has been charged with criminal sexual contact for allegedly rubbing against the 18-year old student's buttocks while pulling her away. (The Trentonian, Trenton, NJ - June 1)

Carl Jordan, 39, has been charged with criminal contact following an incident in April when his groin allegedly rubbed against an 18-year-old female student’s buttocks. Jordan’s attorney, Robert Wills, said the U.S. Naval Academy grad pulled the female student away from a 6-year-old boy whom she was allegedly harassing. Saying Jordan “did nothing wrong,” DiStephano concluded his public statement by noting that the incident occurred out in the open and not “behind closed doors.” As DiStephano sat down, local residents clapped their hands in a round of approval.

Remember our post from Friday critiquing the KIDS Act bill currently in Congress? Apparently the great state of Tennessee has already decided to require sex offenders to submit their email addresses and IM screen names, effective July 1st. (Eyewitness News, Memphis, TN - May 28, 2008)

Starting July 1st, Tennessee sex offenders are required to report their e-mail addresses, user names, and screens names to Tennessee’s Sex Offender Registry. Lawmakers created the new requirement for sex offenders during this year’s legislative session in Nashville. Police say the requirement will make it easier for them to spot sex offenders trolling for prey online.

Did you know that Arizona is using GPS devices to track some sex offenders, and they have been doing so since 2006? We didn't either. But apparently they are, costing Arizona taxpayers $180 a month for the tracking devices. If a device enters an "exclusionary zone," a signal is immediately sent to the offender's probation officer. (GPS News Update & GPS Review - June 1, 2008)

In each case, the child molesters are told there are
certain areas where they can't go, Sanders said. If they go into an
"exclusionary zone," the ankle bracelet sounds an alarm and immediately notifies
his probation officer.If the probation officer thinks it's necessary, he or she
can immediately call the police, Sanders said.Exclusionary zones could include
playgrounds, school yards and victims' neighborhoods.

Sex Offender Research blog is preaching to the choir with its recent posting of an academic article from the University of Manchester in the UK. It's key finding on sex offender reintegration into society? It's lacking.

The process of reintegration of offenders after release from prison, or during a community sentence, is a key aim of criminal justice policy. This article provides details from recent research that investigated the barriers and opportunities to employment for sex offenders. The authors describe the barriers that are faced by sex offenders and the anxieties that employers experience when employing sex offenders. The authors conclude that the approach taken by the State is less than reintegrative and serves to increase the barriers and reduce the opportunities for employment for sex offenders.

Why the KIDS Act Is a Bad Idea

In yet another example of Congress favoring political expediency in an election year over common sense, the Senate last week passed a bill called the KIDS (Keeping the Internet Devoid of Sexual predators) Act. This bill purportedly will require convicted sex offenders to register their email addresses and IM screen names with a federal database for the express intent of keeping sex offenders away from social networking sites such as MySpace and Facebook.

From Politico:

Under the registration requirement approved by the Senate, social networking
sites would have access to the government database of e-mail addresses and
screen names and would be encouraged to ban those on it. It would be a violation
of parole or probation to use different online identifiers. The National Center
for Missing & Exploited Children (NCMEC) supports the bill, as does MySpace,
Facebook, Microsoft and the American Family Association. One catch for
Democrats: So too, of course, does the presumptive Republican presidential
nominee, who issued a press release Wednesday calling on the House to pass it as
soon as possible.

Put frankly, this bill is all kinds of stupid. Here are four reasons why:

First and foremost, the efficacy of such a mandate is just shy of impossible. A person, sex offender or otherwise, can easily and anonymously sign up for and utilize a different email address and/or IM screen name as often as he chooses. For example, Gmail, Yahoo, Hotmail and others offer unlimited access to new email addresses, limited only by one's imagination and patience.

Secondly, does the terrorist no-fly database ring a bell with these politicians? Maybe they should ask Senator Ted Kennedy or Nobel Prize winner Nelson Mandela about how well that bureaucratic data dump has worked. There are 44,000+ names on that list; how many hundreds of thousands of email addresses and IM names would end up on the KIDS Act list? And is it going to be publicly accessible? A one-character misspelling (e.g., Coolguy14 v. CooIguy14) could be the difference between a teenager on social networking sites versus a purported sex offender. The hassle that either would have to deal with is not acceptable.

Third, what does someone who was accused and convicted of sexual assualt within a marriage have to do with keeping social networking sites free from 'predators?' Or how does any sexual crime involving two adults have anything at all to do with access to those sites on the internet? If we can restrict a convicted rapist from discrete parts of the internet, why wouldn't we similarly be able to restrict him from certain parts of town? From a libertarian perspective, once a convicted felon has paid his debt to society in the form of imprisonment and/or other restrictions of liberty, he should be free to do as he pleases within the confines of the law. This is an unconscionable power-grab away from the liberty of sexual felons in the name of children's safety.

Finally, the public policy behind this bill is too broad in that it purports to target social networking sites such as MySpace and Facebook that have a large contingent of minors accessing it. What about other social networking sites not as heavily emphasized on minors such as Twitter, various news sites or sports message boards? Are sexual felons also banned from using those sites?

It should be clear by now, given all the holes in the bill as passed by the Senate, that the KIDS Act should be thrown into the trash and tried again. But it's unclear how likely that is in the current environment that supports further and further restriction of the rights of sexual felons. At least two Democrats in the House of Representatives (Rep. John Conyers - MI and Rep. Bobby Scott - VA) seem to understand the uselessness of the registration component, as they have spearheaded a version of the bill without that piece in the past. It's worth staying tuned to see how the House handles the bill this time around.

Aren't These the Guys We're Supposed to Trust?

Although this isn't a traditional sex crimes story, it once again highlights how the folks in charge of investigating and prosecuting these crimes often are causing as many problems as they are purportedly solving. Today's case of interest is actually a federal civil case filed in New York by Jane Doe, a 17-year old girl who claims that Harrison (NY) police officers violated her fundamental right to privacy by repeatedly viewing a videotape depicting her performing various sexual acts with her boyfriend. The police came upon this tape (in her presence, as she was detained) while searching her boyfriend's home upon his arrest for the sale and possession of marijuana.

Harrison PD's Finest (photo credit: http://www.westchestergov.com/)

From the Smoking Gun:

The girl claims that police watched the video in her presence "while laughing,"
and that they put a camcorder in her face and "mockingly" asked her questions
about the explicit video as it played. She also alleges that a Harrison
detective told her, "I should beat your ass for this. I hope your parents beat
your ass." The teenager claims that the investigator also retrieved anal beads
from a bedroom, put them in her face, and asked, "What do you do with these--put
them in your mouth?" The girl charges that cops subsequently played the video
"sufficiently close to the cell in which the boyfriend was incarcerated so that
he could hear the audio component of the video," and that they laughed about the
video and made "repeated references by name to his girlfriend as she was
depicted on the video." She also contends that the Harrison officers "thereafter
played the video for other members of the department to watch for their
amusement, sexual gratification, and to further degrade Plaintiff."

Does Jane Doe have a meritorious claim here? Under the 14th Amendment and 42 USC § 1983, the right to privacy covers a substantial number of issues. The Supreme Court has noted that the right to privacy is "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). And the 10th Circuit has stated that an “individual's expectation of privacy for constitutional purposes is legitimate only if the information is ‘highly personal or intimate.’ Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995).

We can think of no more highly personal or intimate information than what Jane Doe showed on that videotape. There are some who may argue that she should not have made the tape in the first place, and that the police properly seized the tape using standard assumptions of probable cause with respect to the boyfriend. Both statements may be true, but if what Jane Doe alleges about the humiliation and public viewings of the video is true, the Men in Blue of Harrison PD in New York rewrote the definition of reasonableness to an extent far beyond what could have ever been contemplated. Let’s hope Jane Doe finds justice here.

More Coverage:
NY Daily News - Westchester Cops in Sex Tape Scandal
NY Post - Police Sex Tape Scandal
The Lower Hudson Journal News - Harrison Cop Denies Allegations in Sex Tape Suit

Jilted High School Ex-Boyfriend Charged with Child Pornography

Alex Phillips is a 17-year old high school student from La Crosse, Wisconsin. He may not be the brightest crayon in the box, but his story is one that once again calls into question the legislative sanity of some of the overreach of our laws regarding what constitutes 'child pornography.'

It turns out that Phillips at some point in the last year was friendly with a 16-year old girl called HLK (14 months his junior) who sent him two explicit photos of her completely naked in different positions. She took the photos with her cell phone camera and sent them to his email address. Phillips, apparently miffed that HLK had started seeing someone else recently, decided to post the photos (with lewd captions) to his MySpace account.
From the criminal complaint (h/t The Smoking Gun):

"The [MySpace] page showed two nude images of a female. The first was full frontal nudity of a white, dark-haired female and the second was the buttocks, anus and vagina of a female. [...] [The victim] stated that the images were of her and that she had taken them with her cell phone several months ago and had sent them to Alex Phillips' email address. She stated she did not give him permission to transfer the images anywhere else."

When questioned by the police, Phillips initially refused to take the photos off of MySpace, claiming that he was "keeping them up" even if he could go to jail over this, but later relented. He stated that he put the photos online because he was venting and that he didn't mean to harm HLK but that he realized that he "probably should not have done this." Phillips has since been charged with two felonies: possession of child pornography and sexual exploitation of a child under 18 years of age; as well as misdemeanor defamation.

Frankly, this is appalling and an absurd misuse of the intent of the laws against child pornography. There is no question that it was incredibly stupid for Phillips to post the explicit photos of HLK online, but the only criminal charge he should possibly face should be that of defamation for his lewd captions that went with the photos. Did the Wisconsin legislature really have a boyfriend/girlfriend spat in mind between teenagers when they drafted these child pornography laws? Is it unreasonable to believe that 16-18 year-olds who in many states can legally have sex with each other might also take photos of themselves while doing so; or in an attempt to titillate each other for what might come next? This is supposed to be child pornography?

Let's also keep in mind that HLK produced these photos herself and sent them of her own free will to Alex Phillips (aside: does this mean that HLK is guilty of the PROTECT Act in light of yesterday's Supreme Court ruling?). According to the Wisconsin legislature, Phillips was guilty of child pornography as soon as he opened her email attachment, and was guilty of sexual exploitation of a child as soon as he posted the photos online. Yet was there any consideration given by the state of Wisconsin that another "child" (legally defined) could be the one performing these acts?

Apparently not, because Phillips' name is already all over the national media and internet and will forever be linked with the scarlet letters of 'child pornography,' even if the charges do not stick. His future is already written, as colleges, possible employers, friends and romantic partners will have to take a leap of faith that he's just a kid who made a mistake by posting his ex-girlfriend's pictures online, instead of actually being a social pariah who deals in kiddie porn.

More Coverage:

The Smoking Gun - Teen Nabbed For Naked MySpace Photos
Gravy & Biscuits - Alex Phillips MySpace Photo Scandal
La Crosse Tribune - Teen Faces Child Porn Charges
Chicago Tribune - Alex Phillips, MySpace
Gawker - Child Porn: Teen Arrested on Child Porn Charges After Posting Photos of His Ex

Parole Board Revocation Hearing

A couple of months ago I was asked by the pastor-wife of a parolee who had been violated by his parole officer to take a look at the case.

The facts were that the parole officer claimed he had seen pornography on the parolee’s laptop during an unannounced home visit, a violation of the terms of his parole. The parole officer did not show any pornographic images on the laptop to the parolee when he violated him and cuffed him. He just said he had seen them.

Later, the parole officer remembered that what he had first characterized as mere pornography had in fact been child pornography. Even later the same parole officer remembered that there also had been images of penetration of children!

Of course you would assume his memory could be checked by a look at a copy of the computer’s hard drive, but parole hearings do not provide much in the way of due process. As the parole officer was only too happy to inform me in one of our first conversations, all that would matter at the revocation hearing would be his testimony as to what he saw.

No physical evidence would be needed. Whatever he remembered seeing would be the only “evidence” needed to send my client back to prison.

My only recourse was to go to a Superior Court and petition for a writ of mandate (mandamus), ordering the parole board and the D.A. to allow the defense access to the physical evidence.

This is not an easy thing to do. It requires extraordinary circumstances, well pled, and many more petitions for such writs are turned down than are accepted. So I of course I am unusually pleased to post to this blog that today I received the Superior Court’s signed order, which reads, in part,

“Respondent (Board of Parole Hearings of the California Department of Corrections and Rehabilitation) is commanded immediately upon receipt of this writ . . . to provide Petitioner’s Attorney with access to the evidence to be used [against his client].”

It is so great when justice works!

Movies- Deliver Us From Evil and Capturing the Friedmans

Two movies dealing with sexual abuse. Both movies are well reviewed and were nominated for Oscars. Capturing the Friedmans has provoked debate by many who have seen it. It might be a good idea to watch the movie with more than one person because people have had completely different views on whether the defendants are guilty. When the movie was shown at the Sundance Film Festival in Utah, it was reported some viewers were shouting at each other afterwards.
Reviews Friedmans
Trailer Friedmans-
Reviews-Deliver Us From Evil
Trailer Deliver Us From Evil

Supreme Court Expands Child Pornography Reach

The Supreme Court released an opinion yesterday (U.S. v. Williams) 533 U.S. ____ (2008), that significantly expanded the reach that prosecutors will have in their arsenals against suspected purveyors of child pornography.

At issue was a 2003 Congressional law - the PROTECT Act - that made it a criminal act to offer, solicit or distribute sexually explicit images of children. A person can be convicted on two grounds under this law: 1) if he believes that the material offered actually depicts sexual images of children; or 2) if he intends to convince a potential recipient that it does.

The defendant, Michael Williams, challenged the constitutionality of the PROTECT Act, not based on his prior specific acts (which involved him pandering sexually explicit photos of his 5-year old daughter online) but based on the First Amendment protection against constitutional vagueness. Williams argued that although his acts were clearly illegal under the statute, there are other parts of the statute that are so vague and unclear that the entire law should be struck down as unconstitutional.

From SCOTUSblog:

"As a result, to decide Williams’ case, the Court was required today to scan the legislation broadly and decide how it applies in the full range of its applications and whether it trenches upon First Amendment rights in too many of those applications. [...T]he major dispute between the majority and the dissent was not over whether the First Amendment protects what Williams did, but how the statute applies in other cases, especially in cases involving simulated child pornography."

The majority in a 7-2 decision effectively ruled that by requiring a subjective belief on the part of the defendant that he believes and intends others to believe the materials he offers are criminal in nature (sexual images of children), there is no room for a mistake on his part. As the Court stated, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection."

The dissent called into question some harrowing exceptions where the legality of the transferral of potentially innocuous photographs such as a grandparent emailing to a relative a photo of a grandchild taking a bath, or the selling of movies that contain purported images of adolescent sex, could come under scrutiny by overzealous prosecutors. So long as the defendant had a subjective but mistaken belief that the images offered were obscene or tried to mistakenly convince others that they were, the defendant could be subject to prosecution even if the images were in fact not obscene.

This is a dangerous high court precendent toward the criminalization of thoughts, and moves us one step closer to the Big Brother mentality that so many of us fear is coming.

More coverage:
New York Times - Supreme Court Upholds Child Pornography Law
Washington Post - Justices Uphold Child Porn Law
LiveJournal - The Court Undermines the First Amendment
Windy Pundit - Don't Ask About Imaginary Child Porn

GOP Seeks Drinking Law Exception

Today’s New York Times reported that the Republican Party has asked St. Paul, MN, officials to keep the city’s bars open two hours longer than normal, from 2 to 4 AM—for the eleven days preceding, during, and after the September Republican national convention this fall.
Read more from original article: Let’s Par-Tay Till 4 A.M.
This news item appears on this blog because of the author’s experience with holier-than-thou piousness commonly assumed by prosecutors of the Republican persuasion in Bay Area superior courts when talking to the judges about my DUI clients. [Ok, some of these deputy D.A.s are Democrats, but not many.]

Republican hypocrisy among northern CA district attorneys is so blatant in the sex crimes and child porn area of my practice I barely take note. But drinking until almost sunup while taking responsibility for electing the leader of the free world?

The GOP thinks it so important that their delegates be allowed to drink almost all night that they ask the convention host city to make an exception of long-established booze laws during this world-important event?

Time and time again I have heard a deputy DA appearing in my San Francisco, Marin, Alameda, Contra Costa, Sonoma, Napa, San Mateo or Santa Clara county DUI cases go on and on and on about how everyone knows the dangers of drinking and driving.

I realize there are taxis available at 2 AM in St. Paul (there are, aren’t they?), but somehow this news item really grated on me as someone defending DUI cases on a regular basis.

I guarantee you that one or more of those GOP delegates will drive drunk in St. Paul during 2 and 4 AM between September 1 and September 11, 2008, due in part to the exception to the MN law that the GOP has requested.

Most likely no GOP delegate(s) will get stopped for driving drunk (statistically less than .09% of drunk drivers actually do get stopped) but still . . .

Picnic Table Sexually Violated Near Elementary School

Arthur Price, 39, of Bellevue, Ohio, has been charged with a sex crime: putting his erect penis through the middle of his own picnic table on his own property, with no one watching—but three blocks from a school!
Read more about Police: Man Had Sex With Picnic Table
Between January and March 2008 Mr. Price, with no prior record of sexual assault on any other steel and plastic objects, or on children or on adults or on anything else, apparently violated Ohio sex laws when he made love to his picnic table on a number of occasions, both inside his house and outside his house on his deck.

A neighbor’s DVDs show Mr. Price making love to the table, first in his living room, to climax, and then lugging his picnic table out to his deck, where he repeatedly confirmed his passion and commitment with multiple climaxes—as the neighbor’s DVDs confirm.

Criminal problem? The poor guy was doing this whatever-nonsense was 3 blocks from an elementary school and this is America with a prosecutorial disease of needing to show how protective we are of our children, especially when it comes to ANYTHING relating to sex.

[Editorial note: the author is one of the few California criminal defense lawyer who has spent over a decade in third-world countries—and as a result he is appreciative of the U.S. criminal justice system compared to most others; for instance, he spent many hours and too much money helping Australian, New Zealand, and American drug defendants in Thailand jails (where oral and anal sex is permitted if the jailers get to participate or at least watch].

The victim, lacking English-speaking skills, and the arresting officers not speaking table talk, had no comment to the arresting officers and will not be put on the witness stand.

This post appears on my blog on April’s Fools Day—but it is not a joke; this is real, this is Ohio; this is America.

Sexually Violent Predator Avoids Civil Commitment

The California Supreme Court ruled last week that a SVP (sexually violent predator) could avoid civil commitment otherwise required by Welfare & Institutions Code section 6600 et seq. under certain circumstances.

Under People v. Smith (2004) 32 Cal.4th 792, 796-799 (Smith), a person can be civilly committed as a SVP after serving his full prison term if he has been convicted of certain crimes and a jury finds he may engage in sexually violent behavior in the future.

In this case the defendant had been convicted in 1982 of four counts of oral copulation on a child under 14 and one count of sodomy of a child under 14; again, in 1988 he was convicted of 15 counts of committing lewd and lascivious acts on a child under 14.

Seven years later he was released on parole and three years later, in 1998, he completed parole. When he moved away from California to New York the following year he sent a change of address card to the Long Beach police, but it was not received (?!).

Failing to keep California authorities informed led to his arrest in New York and his return to the Golden State for five years in state prison. At this point the Los Angeles D.A. (for the first time) decided the defendant should be placed into civil custody as a SVP when he completed the five years.

However, meanwhile, Smith was appealing the conviction and he won! The Supremes apparently decided the police might have received that change of address card after all, or at least it was a close enough question to make the court wonder if five years in state prison was the appropriate consequence of a mail mishap.

So Smith won—but the D.A. STILL DEMANDED HE BE PUT INTO CIVIL CUSTODY AS A SVP immediately because the D.A. could demand it. By that I mean this: the D.A. “could” because, incredibly, the operative language reads: “An SVP petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual’s custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law.”
In this case our California Supreme Court made a decision that may lack political correctness but it absolutely was the right decision. The court concluded that, despite the above italicized language, it was not going to let the People (the D.A.’s office) twist the meaning of the language into something different than what the legislators must have intended (or what the Supremes thought was fair).

Accordingly, the court held an SVP commitment in this case was not authorized, reversing the Court of Appeal.

San Mateo county child porn official given 16 months

Alex Kern, 39, former San Mateo County auditor in Redwood City, CA, who was caught with over 4,000 child pornography images on a county-issued laptop, is going to prison.

This office has received two FBI Internet porn cases recently, and this works is how it seems to work: The FBI the initiates the matter by use of Internet technology such as Internet “cookies.” They turn over the evidence to a locals0, such as the San Mateo DA, and let him do the work. Or, more commonly lately, the FBI turns the evidence over to Homeland Security or other enforcement branch with financial resources and then brings the case(s) before a federal grand jury .

Kerr had no criminal record and had pleaded for probation or at least county jail time, as opposed to prison time. He has a 14-year old daughter and an 11-year old son, he has expressed severe remorse, he is at low risk to re-offend according to is probation report, and he has just been served with divorce papers by his long-term wife.

Still, this being San Mateo County—the man got 16 months in state prison. Plus, he has the certainty of a very difficult time when he is released, as permitted by California’s sex predator laws, aside from his likely life-long federal obligat

Wrongful Convictions

I wanted to comment of a very thoughtful article by Adam Liptak in his “Sidebar” column in today’s New York Times. Read the original article: Study of Wrongful Convictions Raises Questions Beyond DNA
The thrust of the piece is that, despite authorities with differing opinions on exoneration and innocence (you can be exonerated by DNA but still be guilty), no one denies that, “We know very little about any aspect of false conviction. But a few general lessons can be drawn nonetheless,” he concludes, and they are these:

1. Black men are more likely to be convicted of rape than white men under the same fact patterns, especially if the victim was white.

2. Minors are more likely to falsely confess to murder than adults.

3. Defendants who maintain their innocence are more likely to be innocent.

4. The longer it takes to solve a crime the more likely the defendant is not guilty.

Everyone knows blacks are at a disadvantage in our criminal system. The surprise, to me at least, is that minors are also at a disadvantage. The last two ‘lessons’ are well known to the criminal defense bar but likely far less well known to the public at large.

DUI Law: World History of Driving Under the Influence

As a California criminal defense lawyer who has defended DUI cases since the time of Moses, I enjoyed reading Wikipedia's entry for "driving under the influence."

Some items found there and randomly selected include:

* Norway introduced the world's first "per se" law in 1936. All 50 states in this country subsequently followed Norway's lead and all now have two categories of DUI offenses: the per se violation based on the amount of alcohol in your system (requiring no other proof of intoxication) and the other drunk driving violation (requiring independent proof, such as the testimony of a police office).

*Turkey has a limit of 0.05 for PASSENGER-LESS COMPACT CARS only; otherwise, it is 0.00% (as in zero).

*In this country California leads the way (of course) in bringing second degree murder charges if there is evidence of reckless indifference to the lives of others.

*Germany takes your license away automatically for one year if found driving with a blood count of 0.08% or higher and takes it away indefinitely if found driving with a blood count of 0.16% or higher--that it, until you pass a rigorous medical-psychological driver assessment test.

Award-winning Teacher with Child Porn Blames Addiction

This is not a California case, in fact it is not even an American case, but I wanted to discuss it, after seeing it reported on the Internet by News Star, in the U.K., because it highlights something I believe is too often overlooked by both prosecution and defense counsel in sex crimes cases: the pure addictive nature of this form of admittedly criminal behavior. Read the original article: Teacher had child porn

Stephen Burns, a 33 year-old recipient of the Bedfordshire school best teacher award, had no record of abusing children or acting inappropriately with children and was “well liked with a good teaching record, of good character,” with no record of anything, and he told the court he was filled with remorse.

As he described it, “I started searching the Internet for porn and came across websites with images of children . . . and became caught up in it and could not stop, even though . . . I could lose my job and go to prison.”

That is addictive behavior.

Turned in by his partner, Burns tried to justify his acts by claiming he tried to only download images of “children smiling, so they did not appear to be suffering.”

The court would have none of it, stating, “The children would not have been smiling . . . they would have been extremely distressed. You should be ashamed.”

Burns was sentenced for two years, suspended with probation, plus ten years as a required registrant on the Sex Offenders’ Register.

Sex Offenders in Church/Safety Plan

One of my clients, a registered sex offender and probationer, formerly an active member of a San Francisco community church who is negotiating his way back into the flock, found something on the Internet entitled, “Church Attendance Safety Plan,” which he wanted to share with me. I do not know its providence but it may be useful to others.
The cut and pasted document begins: “The purpose of this safety plan is to support the probationer in . . . exercising his religious freedom while assuring the safety of the community . . . while minors are present.”

A 13 item check list follows, including:

* Church services without children present do not require supervision.

* Church services with children present require a "supervisor" to be present

* Supervisor accompanies probationer throughout the church except the bathroom where the supervisor must enter first and confirm that no children are present. Must precede probationer to confirm no boys are inside

* Attendance at other church functions must be approved in advance and monitored as appropriate (as above)

This particular Church Attendance Safety Plan puts me in mind of one of my first sex clients, which began my interest in this field.

His profile: 64, no criminal record, the pastor of his own small but successful church outside Houston, father and husband, lived and living an exemplarity life. His crime: his housekeeper’s 15-year old daughter enticed him into fondling her breasts. Twice, on two separate occasions this evil man of God ‘took advantage’ of a girl (who got herself pregnant a year later with someone closer to her age) by touching her newly arrived and loudly announced breasts, as offered to him.

A year later the young lady went to her Mom, owned up to being pregnant, with some of the explanation being the daughter’s memory of those violations of her upper person.

Result? Loss of everything. including his church, plus life long stigma, and difficulty in supporting himself.

(I got involved because the gentleman’s TX lawyer wanted to move him to Napa to live with his ailing mother. Failed because the TX probation officer would not let him leave the state after I had arranged the hearing here.)

Internet Child Porn Puts Martinez Girls’ Soccer Coach in Federal Prison for 11 years

A former Wells Fargo vice president, Kenneth Gibson, was sentenced to 135 months by U.S. District Judge Martin Jenkins in an Oakland courtroom yesterday for exchanging more than 600 images of child porn over a two year period.
Gibson choked back tears and apologized to the court, after the judge said to him, “ . . . there are real children significantly impacted by this.” Gibson’s lawyer, Robert Beles, said, “You’ve basically got a good man who went into a fantasy world. Other than that, he’s never done anything wrong in his life. There is no indication his is a pedophile."

Gibson’s lawyer said that his client is “still searching for reasons why he entered that subterranean, perverted world of child-porn Internet.”

This case (Kenneth Gibson) is another illustration that we have entered a new age of thought police. No harm to another person need be proven. All the government has to show is that a person’s thoughts and fantasies involve children and sex, and that person was on the Internet. This case is similar to one I had last year in Hayward where a middle-aged man merely LOOKED at pictures of young girls on files he had downloaded, for which he was charged with several felonies. In that case, the FBI electronically traced the gentleman back to his computer and turned the evidence over to the Alameda DA, who sent the sheriff to make the arrest.

Internet Porn War Has Been Won—by the Pornographers

The February 2008 issue of the ABA Journal has an interesting article entitled, The End of the Net Porn Wars.

Remember adult pornography being some serious crime? Forget about it. The government isn’t watching any more, and no one is getting prosecuted.

The latest revenue figures for the industry are $2.84 billion in 2006. Technology moves faster than legislation, the money is gushing in, and few prosecutors want to bother with adult porn.

When Alex Acosta, interim U.S. Attojavascript:void(0)
Publish Postrney for the Southern District of Florida, tried to assign pornography cases to members of his staff, complaints to the Associated Press were made along the lines that the young prosecutors were “stunned” that they should be asked to prosecute adult porn.

Clyde Dewitt, an LA lawyer who represents adult industry producers and performers, “[Prosecutors] have gang activity, fraud, organized crime, drug cartels . . . nobody wants resources redirected to dirty movies. Whoever gets that assignment is the laughing stock of the department.”

All this reminds me of my days as a mom and pop ganja growers’ defense lawyer in Humboldt and Mendocino counties.

In both cases people are making large sums of money engaged in activities that many others do not engage in because they believe these activities are crimes.

In both cases, ungrounded fear of criminal consequences both lowers supply of product or services and drives up prices.

Rural California DA Joins Sex Sting Bandwagon

The Tehama County DA announced the first arrest following its newly launched Operation Safe Sam, a sting operation where the Sheriff’s office runs fake MySpace ads under the guise of an adolescent girl looking for excitement. Tehama County DA sting run on MySpace
Benjamin Dennis, 32, responded to the MySpace profile and propositioned the “girl,” according to the DA’s charge. Following 8 days of emails and after the two agreed to meet, Dennis was arrested and arraigned on February 19, 2008; his preliminary hearing is set for March 10, 2008; he faces a maximum sentence of five years, eight months in state prison; when he is released he will obligated to register as a sex offender, if convicted.

As an attorney who once lived and practiced criminal law in rural Northern CA (Humboldt and Mendocino counties), it is flat-out irresponsible to spend the little money rural county CA law enforcement has available on such stings.

If the DA was looking for those preying on pre-pubescent girls, the stings would be justified.

Although men should not be trying to have sex with teenagers, albeit teenagers not only willing to have sex but advertising for it, why spend money arresting and convicting them of when that same money could be spent trying to locate and stop real sexual predators?

Internet Sexual Predators and Their Victims

Today’s Academic Newswire has a fascinating review of a new study entitled, “Online Predators and Their Victims: Myths, Realities and Implications for Prevention.”
Guess what? It is the same old thing: young guys hit on young girls, and some young guys hit on younger girls. Except now they do it a lot on the Internet. Except now it is a crime—an actively prosecuted crime in fact.

Why else is this interesting? Because, contrary to common belief and contrary to what many legislators apparently want us to believe: “MOST ONLINE SEX OFFENDERS ARE YOUNG MALES WHO TAKE THE TIME TO DEVELOP THEIR VICTIMS’ TRUST AND CONFIDENCE.” They are NOT pedophiles posing as young men to lure their victims. They are young men of legal age.

The victims are young girls, not yet of legal age, who have begun seeing the relationship in romantic and then sexual terms. Same old, same old

Lead author of the study, Janis Wolak, said, “ Most Internet-initiated sex crimes involve adult men who are open about their interest in sex. In most cases, the victims are aware that they are talking to adults.”

Among other interesting findings:

Nearly 75% of sex crime victims who met offenders face to face did so more than once
Girls who engage in 4 or more risky online behaviors—such as discussing sex online and allowing strangers to join their buddy lists—are much more likely to be victims of sex crimes
Gay boys are most susceptible to Internet sex crimes, accounting for almost one-quarter of criminal cases

The study concluded:

“Internet sex crimes involving adults and juveniles more often fit the
model of statutory rape—adult offenders who meet, develop relationships
with, and openly seduce underage teenagers—than a model of forcible
sexual assault or pedophilic child molesting.”

In other words, another example of why the Adam Walsh Act should be scrapped.

For a full look at this excellent study, go to Online "Predators" and Their Victims: Myths, Realities, and Implications for Prevention and Treatment

Supremes Rules Convicted Child Sex Abuser May Challenge Conviction

In an important decision handed down on Wednesday, February 20, 2008, the U.S. Supreme Court—in a new pro-defendant twist on federalism—ruled that state courts may retroactively apply new constitution developments benefiting defendants, even if federal courts could not do so.

Years after a Minnesota man, Stephen Danforth, was convicted of sexually abusing a child in 1996, and after his conviction became final on appeal, he went back to court seeking the benefit of a 2004 Supreme Court decision that enhanced the right of defendants to confront their accusers in open court. The six-year old child had given a videotaped interview rather than appear in open court.

The court’s 7-2 decision opens the way for convicted child abusers to challenge their convictions by cross-examining accusers.

Danforth is currently serving a 26 year term.

To read the full opinion, see Danforth v. Minnesota, No. 06-8273

Child Porn: Feds Arrest Novato School Bus Driver In Courthouse

The FBI arrested a Novato, CA. school bus driver and den leader for the Boy Scouts as he entered a Marin County courtroom on state charges relating to the same crimes. Novato school bus driver facing federal pornography charges

The man, McGinnis Benedict, 52, was making a required appearance at a preliminary hearing for state charges brought for his having downloaded child porn on his lunch break at work and when his wife was asleep at night at home.

Benedict was already facing 25 felony counts for possessing child pornography in the state court when the Feds stepped in.

Use of the Internet for child porn is both a state crime and a Federal crime, carrying heavy penalties.

After the FBI arrested Benedict they asked Marin County to hold him in its jail until they can get him before a Federal judge in San Francisco. Then the feds will let him come back to Marin to face the state charges.

Benedict’s Boy Scout membership has been revoked.

Marin's GI Jane DUI Case

The Marin County DA is taking GI Jane back to trial. Army reservist 'G.I. Jane' going back to court

Jane Parkhurst, the Army reservist who inspired the movie, G.I. Jane, ran her Hummer H2 off a West Marin highway and was arrested for a DUI in late 2006. The matter was tried and the jury deadlocked on one count while acquitted on the other.

In California, all DUIs are charged as two counts, one for driving while intoxicating and the other for driving with a BAC of .08% or over. In this case, the jury concluded it could not decide whether or not Ms. Parkhurst was driving drunk, but that she was not driving with an over-the-limit BAC.
The acquittal on the second count might be due to the fact that the jury believed Ms. Parkhurst claim that she did all her drinking after the accident, before being tested!

The Marin DA wants to re-try her on the first count only in that double jeopardy rules out a re-trial on the count for which she was acquitted.

Drunk Driving: An Argument for Lowering Blood Alcohol Concentration (BAC)

The Center for Disease Control and Prevention, a part of the U.S. Department of Health and Human Services, has an interesting study on alcohol-related crash rates involving young drivers
As a criminal defense lawyer with an active DUI practice, I took particular note of the arguments in favor of:
* Lowering the minimum BAC to .05 from .08
* Prompt and longer suspensions of drivers’ licenses, a la the Scandinavian model
* Substantially increasing the number of alcohol check-points

If these arguments are as persuasive to state legislators as they were to me (and that may be the case), the DUI bar has nothing to worry with respect to getting enough business.

The evidence supports two conclusions: 1) the lower the legal BAC, the fewer deaths and injuries; 2) the more onerous the consequences, the fewer deaths and injuries.

Other items I found interesting:
* It is estimated that less than 1% of alcohol-impaired drivers are caught
* Roughly one in four traffic deaths is alcohol-related
* The driver is drunk in more than half of accidents involving deaths of child passengers age 14 or under (as opposed to the other driver)
* Men are twice as likely as women to have a BAC of .08% and higher when killed in an alcohol-related accident
* Young men between 18 and 20 do the most drunk driving per capita of any age group

But here is the big one, at least from my criminal law practice point of view:

- Drivers with BACs over .08% were NINE TIMES more likely to have a DUI on their record than the other non-drinking driver.

As I tell my first-time DUI clients, emphatically and dramatically, if they want to plea: “You have nothing to worry about with this one other than what is going to happen to you the next time. You have to think about what changes you are going to make so you will not get another DUI.”

Six Myths of Internet Sex Crimes

An article titled “Online Predators and Their Victims” appeared February 21, 2008, in the journal American Psychologist that identified the following myths:

Myth: Internet predators are driving up child sex crimes

Fact: Sexual assaults on teens fell 52% from 1993 to 2005

Myth: Internet predators are pedophiles

Fact: Internet predators target adolescents, not prepubescent children

Myth: Internet predators represent a new dimension to child sexual abuse

Fact: Most Internet-related offenses are essentially statutory rape: non-forcible sex with minors too young to consent Internet predators abduct or trick the victims

Fact: Three quarters of the victims have repeat sex with the predator and go to the first face-to-face meeting expecting to have sex

Myth: Internet predators pose online as teens in order to meet teens

Fact: 95% of predators do not pose as teenagers to meet teenagers

Myth: Internet predators go after any child

Fact: Internet predators target boys and girls of uncertain sexual orientation, often with a history of sexual abuse and risk-taking

Novato Youth Arrested for Molestation of 3 Year-Old Girl

What a difference two years make! A teenager’s recent arrest last Tuesday, February 19, 2008, in Novato, CA illustrates the significance of the age of the accused in sex crimes. Novato teen held in molest case The teenager’s name is being withheld until his age is determined. Initially he claimed he was 18; after being arrested he remembered he was only 16.

Marin County District Attorney appeared personally at the arraignment (highly unusual) and stated that the accused had admitted to engaging in sexual activities with the victim, following notice from the Novato Community Hospital of sexual assault injuries.

As is frequently the case, the accused was a friend of the family. In addition to a $1 million bail, the suspect is being detained on a federal immigration hold.

The age of the accused issue in this case highlights an issue being debated fiercely by prosecutors, the defense bar, and the academic community in California and other states: should a 16 or 17 year old guilty of sexual abuse or assault be treated wholly differently than an 18 year old guilty of the same thing?

In this case, if a minor, the suspect faces several years of incarceration in a youth facility as well as some rehabilitation facility time. If an adult, the suspect faces at least an 18-year mandatory minimum in state prison and life-long registration as a violent sexual predator.

Marin County Drug Case Dropped Due To Detectives' Sexual Advances

The Marin County DA has decided to drop drug charges against a 19 year-old student who complained about a sheriff’s deputy sexually harassing her. Marin Independent Journal: "Drug case dropped; deputy's action blamed"
The student, Sarah Rawlins, was charged with selling drugs to an undercover task force detective on several occasions. Subsequently, a detective, Tyrone Williams, told her if she “cooperated,” her case might get dismissed. She cooperated. Then Officer Williams started bringing her flowers and making sexual advances.
Only days after Ms. Rawlins’ defense attorney filed a motion citing Officer Williams' sexual advances, the DA dropped the case.

This case will prompt legal challenges from other Marin County defendants investigated by Williams. Under California law, the DA must provide defense attorneys with any unfavorable information and that includes personnel information that might cast doubt on a police officer’s credibility.

This is not the first time Marin’s County’s Major Crimes Task Force, a drug unit, has been involved with sex on the job. The last time, the accuser took away $300,000 in damages from the Sheriff’s office—following accusations of improper sexual advances.

Federal Child-Pornography Charges Following Internet Slave/Radio Talk Show Host/Former Catholic Priest Obeying Commands of Internet Dominatrix

Charges filed against radio talk show host Bernie Ward resulted from his obeying the dominatrix’ command to, “Send me some [pictures]; why haven’t I gotten any pics, slave?” Judge unseals indictment against Bernie Ward
In response, the popular talk show host promptly obeyed with a picture of a naked boy sitting between a topless woman and a clothed young girl. This picture prompted the dominatrix to contact the Oakdale, CA. police, telling them that the former priest had also emailed her messages about group sex at a San Mateo porn theater.

The Oakdale police contacted the FBI and a federal grand jury indicted Ward on two counts of possessing and distributing child pornography using the Internet.

Ward’s business attorney, Jeannette Boudreau, said, “The authorities have been in possession of these messages for three years. Bernie was only just indicted in December [2007]. There is no doubt in my mind that they would have allowed Bernie to conduct his family and work life as usual for all that time if they believed the content of the messages to be factual.”

This is just another illustration that you are completely, 100% exposing yourself to any possible claim on the Internet. Remember, when it comes to child porn and the Internet you do not have the same rights and privileges under the law as defendants do for other crimes.

Sex Offenders Prohibited from Florida City Parks

I just learned of another over-the-top law affecting those deemed to be sexual predators, this time an ordinance approved on February 12, 2008 by the Fort Walton Beach, Florida, city council.

The ordinance makes it illegal for registered offenders to attend cultural affairs, recreation centers, and city parks within the city limits; they may no longer enter such facilities as the Indian Temple Museum or the Tennis Center.

This ordinance was written after a stricter law discussed in 2007 was deemed unenforceable by the police; it would have make it illegal to live within 2000 ft of “wherever children gather”—usually something of a moving target.

One city council member summed up the council’s attitude: “The other benefit of the public realizing these are predator-free areas is just as important as he predator not being there at all.”

My take on this?

Florida state law is more than sufficiently draconian already.

For just one reference to all the reasons such legislation is counter-productive (aside from being mean-spirited), see “No Easy Answers: Sex Offender Laws in the U.S.”—published by Human Rights Watch in September 2007. I refer you to the following language from that study:
“Laws aimed at people convicted of sex offenses may not protect children from sex crimes but do lead to harassment, ostracism and even violence against [them]; politicians didn’t do their homework before enacting these sex offender laws. Instead, they have perpetuated myths about sex offenders and failed to deal with the complex realities of sexual violence.”