Child Abuse Photographs Defense Lawyer in Clarksville
In the past several years we have seen a very large increase in the number of cases the government is prosecuting for the transportation, receipt, and possession of child pornography. Anyone who thinks that just looking at a few photographs on the computer is no big deal is very mistaken and playing with fire. This is a very serious crime. It does not matter that an offender has no prior record, or that he did not take the original picture or video, or that he never sexually abused a child himself. All it takes is the downloading from the internet of a few photographs and under federal law and in federal court an offender can get a mandatory jail sentence of five years, and that just for starters. Depending on the number of pictures or videos, the age of the child in the images, and what type of sexual activity is depicted in the pictures, and you can easily double or triple that sentence and in the Federal System and in many States for this type of crime there is no parole - you serve the full sentence. Therefore, to anyone reading this article who has looked at child pornography, my best legal advise is this: Do not do it!
Why Prosecutions Have Increased
I believe that there are several reasons for the large increase in the number of child pornography prosecutions by the government. First, due to the advances in computer and internet technology the possession, transportation, and receipt of child pornography is very easy to commit. It is easier than committing a simple shop lifting. It requires virtually no planning, no personal contact with a victim, and an offender does not need to leave their home to find a dealer or to meet up with an accomplice. While sitting alone at home and in a matter of minutes with a few key strokes on the computer key board an offender can commit a crime that if caught is highly likely to put them in prison for many years.
The second reason for the explosion of these types of cases is that this crime seems to cross all sociological and economic boundaries. Like DUI cases there are individuals who are
1 These activities will certainly get an offender more prison time but are not required before prison is a real possibility.
2 A Note About Attempting to Delete Files: Many people believe that once they hit the delete button on their computer that the file is gone forever. Some might therefore attempt to download illegal images of child exploitation and then immediately or very soon after the viewing think that they can just delete those files and no one will ever know. Deleting a file only sends it to what is called unallocated space on the hard drive. It then sits there until over written by another file. The Government has very sophisticated computer forensic software and computer forensic experts who can find files that have been deleted.
3 While child exploitation laws also known as child pornography laws apply to any type of image, whether, film, photograph, magazine, or computer image, the explosion in prosecutions has almost exclusively involved images on computers or CDs and DVDs.
Rich, middle class, poor, old ,young, doctors, lawyers, mechanics, students, who commit this offense. I believe that part of the reason so many individuals are committing this offense is the explosion and problem of pornography addiction in general. Many of the individuals we see in our law practice have no sexual interest in children but have become addicted to pornography in general. During their search for more and different pornography using file sharing programs such as Lime Wire they accidentally come across child pornography. They then develop a morbid curiosity (much like when people slow down to stare at the bloody traffic accident as they drive by on the interstate). The idea of watching something dangerous, forbidden, and just plain sick and disgusting is a type of adrenaline rush and becomes part of the addiction. They then continue to intentionally collect images of children.
The third reason for the increase in child pornography cases is that it appears that the Government has stepped up its investigations. We first saw prosecutions which were started because a girl friend found pictures on her boyfriends computer, or the computer repair man found pictures and reported it to police, or the government stumbled upon items on a computer when searching a computer for evidence of other types of crimes. However, it appears that the government is now actively conducting sting operations and is taking a pro-active stance by posing on the internet in chat rooms, tracking IP addresses, and investigating file sharing to locate individuals viewing and trading child pornography.
DEFENDING AGAINST CHARGES OF CHILD PORNOGRAPHY
So what should a person do who chooses to ignore my first piece of advice which was JUST DON'T DO IT. What should the person who did not see this article until it was too late and they have already been caught do? And what should the innocent person do? How does anyone defend themselves against a charge of possession of child pornography? First, and foremost and immediately seek the advise of a qualified attorney who has defended these types of case.
What To Do If The FBI Or Police Come Knocking
First, if it is not too late and the police have not already come to your door by the time you are reading this article keep your mouth shut except to form the words "I WANT MY ATTORNEY" and to say "NO YOU DO NOT HAVE PERMISSION TO SEARCH." Say it as many times as you have to in order to make it clear you are firm in your demands and that you are not going to change your mind regardless of how much pressure the Agent puts you under. After that say nothing else until you have spoken to an attorney who has handled child pornography cases and understands the legal and technical issues in those cases.
They are likely to say we have a warrant or we will go get one. Fine. Your response is show it to me or go get it. Do not obstruct them in their work but do not consent to a search simply because they do have a warrant or they tell you that they will just go get one. The warrant may have a defect but if you consent to the search you have just lost your ability to challenge that search and throw out any results of the search because of a defective warrant.
Do not tell them anything about your activities on the computer. Do not engage in small talk with the Agents. This is an attempt to soften you up, to get you to open up. They are not your friend. They are there to do a job and that is to put you in prison. They will attempt to pull the good cop bad cop routine on you. You will be ashamed and scared to death, they know that and will attempt to use your fear and shame against you.
One officer will verbally attack and berate you and tell you that you are spending years in prison (that may be true but if you cooperate at this stage and spill your guts it will be just about guaranteed). The other agent or officer will be calm, and friendly. He will tell you that he understands, that he knows your really a good guy that just made a mistake, and that if you just cooperate and consent to the search and tell him every thing that happened that he will talk to the prosecutor. He will then tell you that he will let the prosecutor know that you cooperated and he will try to get the prosecutor to cut you a break. Well guess what. The police are allowed to tell little lies like that.
After you have told them everything he will tell the prosecutor you cooperated but he will not actively campaign or lobby for you to get a real break. Furthermore, even if the officer wanted to help you the Prosecutor in Federal Court is required to follow the guidelines that his office sets down. Those guidelines are to pursue a prosecution and attempt to obtain a conviction for the most serious provable offense. In other words the U.S. Attorney, as bound by Department of Justice Guidelines, will attempt to hang you with the most serious crime and the longest prison sentence he can prove. If you cooperate you have just handed him your head on a plate and as you leave the court room in hand cuffs on your way to prison the Agent will look at you and shrug his shoulders and say "I told the prosecutor you cooperated". I have seen this good cop bad cop routine, how people fall for it, and how it gets them nothing time after time.
It is true that there are cases where cooperation is your best and only option. It will not get you off the hook but might help lessen your sentence somewhat. However, the timing of that cooperation and the extent of that cooperation needs to be determined by a lawyer. Although the police or FBI will attempt to make you believe that if you do not immediately cooperate and immediately tell them everything and that it will be to late the next day, this is simply not true in 99.9% of cases. In the great majority of cases any benefit to be received by cooperating can wait for at least several days until you have had the opportunity to speak to a lawyer.
Let the lawyer assess how good or poor of a case the government has before you decide to confess. There are cases where the proof is highly circumstantial and a successful defense can be pursued. Child Pornography or Exploitation of Children statutes require knowledge. A person must have knowingly possessed, transported, or received the images. Other people may have had access to the computer, and it may be very difficult for the government to prove which of those persons who had access to the computer downloaded the illegal images and depending where those images were located on the computer it can be difficult to prove that the owner or main user of the computer downloaded the images or knew the images were even there. Accidental downloading of child pornography can also occur. It is not uncommon for individuals who are attempting to receive music files or legal pornography files thru file sharing programs to download multiple files at a time and to not look at the individual file and what it contains. If the sender of the file mislabels the file either accidentally or maliciously they could be sending to a completely innocent person child pornography.
What To Do If The Government Has An Air Tight Case
If the government has enough evidence that makes a successful defense highly unlikely there are things that need to be done to at least attempt to mitigate the damage or keep the sentence as low as possible. In the last few years it has been very common for the Government, especially in Federal Exploitation of a Minor cases to take up to a year or more to complete its forensic examination of the computer. This time should be spent getting counseling, and doing everything that can be done to show remorse and to pursue self rehabilitation. Being able to show to the Judge that the offender is not a danger to children and that a long prison sentence is not necessary to protect society can sometimes go a long way toward avoiding years in prison.
What If You Are Accused But Are Truly Innocent.
One of the most common questions I receive is "why do I need a lawyer I'm not guilty".
I have discussed one way thru file sharing how a person can accidentally download illegal images and how allowing other persons to use your computer could cause an innocent person to be implicated. Other ways a person could be falsely accused or implicated is to be set up or framed. An angry and vindictive or ex wife, girlfriend, business associate, anyone who has or can get access to another person's computer. Once the veil of suspicion falls upon you there is the danger of being falsely arrested and convicted. This happens because our Judicial system although very good is far from perfect. Just ask some of the men who have been falsely imprisoned for years for rape or murder but who have now been exonerated by advances in DNA science. I am sure that many of them initially said to themselves or the police, "I don't need a lawyer I didn't do anything wrong."
Police officers, FBI agents, prosecutors, judges, and jurors are human. They make mistakes, jump to conclusions, have bias and prejudice. The police are trained to doubt your denial. They may be personally more inclined to believe your room mate or your girlfriend when they say it wasn't them for a host of reasons, and so they focus on you and begin to build a case. They do not intentionally try to convict an innocent person, but once they have formed their initial impression they work to confirm that impression by building their case against their suspect. In doing so they can overlook evidence which is contrary to their theory. An attorney working on your behalf can bring this other evidence to their attention. He can point out the weaknesses in their theory and evidence that the investigators may be over looking are giving insufficient weight to its consideration. The system is not good at admitting that it made a mistake. It is far easier to convince the Government to not file charges than it is to convince them to dismiss charges once they have been filed and you have been arrested.
Therefore, if you are under investigation get an attorney now. Even though you are innocent.
Brent Horst
Attorney at Law
Certified as a Criminal Trial Specialist by the National Board of Trial Advocacy.
July 1, 2009
