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varkam Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-16-08 12:06 AM
Response to Original message
57. My .02.
Child pornography and sex crimes in general are pretty hot topics right now in criminal law. The first thing that strikes me about this situation is that a crime has been committed. Mere posession of images depicting minors engaged in sexual activity is a crime. The question is, though, who committed the crime? If multiple people had access to the computer, and your wife's computer came back from Restronics with child porn loaded on it, it seems to me that it would be very difficult to prove beyond a reasonable doubt just who exactly placed those pictures there. It wouldn't surprise me that it was accessed after Restronics took possession of the computer, as otherwise they would not of known what it was. It seems to me though that it would've been easy to determine when the images were created on the hard drive.

Nonetheless, if Jim's computer had images on it and it was, in fact, Jim's computer, then it doesn't seem to me that the prosecutor was out of line in charging Jim. A lot of that depends upon how the state statute is written, turning on how "possession" is defined. Some states define possession as "having knowingly obtained" whereas in other states the main factor is one of control - ie is the individual in control of said material. If the state in question depends upon the control issue, and the images were in Jim's computer, then charging him is legitimate. Of course, he has to know that such images are there - but unfortunately that's an issue for trial.

I'm pretty amazed that the case was dismissed on 1st amendment grounds. I'm assuming, then, that these images were cartoons or something similiar, and not pictures of actual children engaged in sexual conduct. You are right about the CPPA; it banned "virtual" child pornography, which SCOTUS found violated the 1st amendment. However certain forms of "virtual" child porngraphy remain illegal, such as the act of "morphing" - taking an image of a real child and pasting it into a pornographic image.

I do think that the prosecutor should of spent a little more time investigating things, especially if the images were cartoons. If that's the case, then I think you've got a clueless prosecutor on your hands.

About child pornography in general: I think that there is a debate to be had about the exact nature of why it is wrong. I'm not defending it, but I don't think that abusing a child and having a picture of said abuse on one's computer are one and the same thing. The law, however, does not seem to make much of a distinction between the two. In most jurisdictions, they are an equivalent (eg Class D felony). In some jurisdictions, such as in Arizona, you can actually get more time behind bars for child porn than for actual abuse. For example, a teacher in Arizona is serving a 200-year sentence for simple possession.

Part of the debate, though, is about pornography in general. Does pornography incite people to commit sex crimes (such as rape)? So far, data doesn't support the conclusion that viewing pornography leads to actual abuse (such as molestation of a child or rape of an adult). There is limited data (from Sweden I believe) to suggest that widespread legalization of pornography led to a decrease in sex crimes. Conversely, there is a recent study to suggest that some 80% of people who view child pornography also abuse children (though that study was withdrawn from publication). IOW, it's a real tangled web, and there's a lot of emotion tied up in such a debate.

As far as the lawyer is concerned: $300 is a reasonable fee that amounts to an hour or two of work.

In any event, that's just my .02. I'm not a lawyer or anything, so take what I have to say with a grain of salt.





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  -A Malicious Prosecution in my Family Time for change  Jun-15-08 08:00 AM   #0 
  - Something does sound a bit odd about that  ck4829   Jun-15-08 08:09 AM   #1 
  - It's pretty well-established  dems_rightnow   Jun-15-08 08:15 AM   #2 
  - I don't think I ever said it was protected under the First Amendment  ck4829   Jun-15-08 08:30 AM   #4 
  - According to an IT tech I know, there is no reason a tech should be looking at image files  AmyDeLune   Jun-15-08 01:26 PM   #23 
     - I didn't think of that  Time for change   Jun-15-08 07:43 PM   #44 
  - The main question at issue here isn't whether or not there was a crime  Time for change   Jun-15-08 08:43 AM   #7 
  - I seriously have no idea.  dems_rightnow   Jun-15-08 09:45 AM   #9 
  - I'm just as guilty as my nephew is  Time for change   Jun-15-08 09:56 AM   #13 
  - Self-delete -- wrong place  Time for change   Jun-15-08 09:54 AM   #11 
  - First Amendment: What Jim's lawyer explained to me, and the USSC decision from the link in the OP  Time for change   Jun-15-08 02:46 PM   #26 
  - A former state Attorney General should know not to hire prostitutes with  Freddie Stubbs   Jun-16-08 11:51 AM   #71 
  - Thanks for sharing the story. What a nightmare.  rucky   Jun-15-08 08:17 AM   #3 
  - That's why it's a bad law:  PaulHo   Jun-15-08 08:37 AM   #5 
  - I've suggested to my nephew that he pursue a civil suit, and he's explored it with his lawyer  Time for change   Jun-15-08 09:34 AM   #8 
     - Since we know kiddie porn was present, it's not malicious prosecution.  TexasObserver   Jun-15-08 10:05 AM   #15 
     - I don't understand why the fact that a crime has been committed immunizes  Time for change   Jun-15-08 11:37 AM   #22 
     - Good. I agree with your "take" on it on all counts, and understand  KCabotDullesMarxIII   Jun-15-08 06:28 PM   #39 
        - The venal prosecutor simply showed no interest in even considering any other possibility  Time for change   Jun-16-08 07:17 AM   #66 
           - I found FarceOf Nature's post interesting, but not persuasive.  KCabotDullesMarxIII   Jun-16-08 11:10 AM   #68 
              - Our gulag-archipelago  Time for change   Jun-16-08 11:24 AM   #69 
                 - It wouldn't be at all practicable, Tfc! It certainly is the road to hell,  KCabotDullesMarxIII   Jun-16-08 11:41 AM   #70 
                    - I'm afraid it's true that our country is going to hell now.  Time for change   Jun-16-08 11:52 AM   #72 
                       - I was kidding about the 'y' chromosome, and I understood your point.  KCabotDullesMarxIII   Jun-16-08 12:49 PM   #75 
                          - It's a subject of which I have very little understanding  Time for change   Jun-16-08 08:09 PM   #78 
                             - Not at all. By a strange coincidence, after signing off yesterday, I found myself  KCabotDullesMarxIII   Jun-17-08 12:42 PM   #89 
  - It sounds like one of those chain of evidence problems  MiniMe   Jun-15-08 08:41 AM   #6 
  - I think it's far more than a chain of evidence issue  Time for change   Jun-15-08 09:49 AM   #10 
  - The $300 for record expungement is CHEAP.  TexasObserver   Jun-15-08 09:56 AM   #12 
  - My problem with the expungement of the records is not so much the price  Time for change   Jun-15-08 10:08 AM   #16 
  - Somebody at that company has found an easy way to cover  sfexpat2000   Jun-15-08 10:14 AM   #18 
  - I think that's probably a good idea  Time for change   Jun-15-08 05:38 PM   #37 
  - He can avoid paying that by doing it himself....  Viva_La_Revolution   Jun-15-08 06:52 PM   #40 
     - Ahhhhhhhhhh. Thank you.  Time for change   Jun-15-08 07:07 PM   #42 
  - Very valid point made here. It's the same theory that guides this admin.  acmavm   Jun-15-08 10:30 AM   #20 
  - I'm sorry for Jim's and your tragic involvement in this mess.  bertman   Jun-15-08 10:04 AM   #14 
  - I agree -- They should be held accountable for these things  Time for change   Jun-15-08 07:37 PM   #43 
  - Welcome to life in the fourth reich.  greyhound1966   Jun-15-08 10:11 AM   #17 
  - This law reminds me very much of drug possession laws  Time for change   Jun-15-08 10:21 AM   #19 
  - Sounds like the defense lawyer did ok - and maybe he thought he had the  TBF   Jun-15-08 11:04 AM   #21 
  - Don't take this the wrong way, but I am going to look at the case  rebel with a cause   Jun-15-08 01:36 PM   #24 
  - I agree with all you say here, except for one thing  Time for change   Jun-15-08 02:31 PM   #25 
     - Person who have these porn sites often know how many  rebel with a cause   Jun-15-08 02:56 PM   #28 
     - Ok, let's say that whoever took the pictures knows how many times their sites are downloaded  Time for change   Jun-15-08 04:00 PM   #30 
        - We will have to agree to disagree about the pictures  rebel with a cause   Jun-15-08 04:42 PM   #32 
        - That's ok  Time for change   Jun-15-08 05:10 PM   #34 
        - important  bkscribe   Jun-15-08 10:56 PM   #55 
           - It's just a guess  Time for change   Jun-16-08 12:11 AM   #58 
              - Stick to your point then.  bkscribe   Jun-16-08 01:01 PM   #76 
                 - I have more than one point that I've discussed in this post and think is important  Time for change   Jun-16-08 08:25 PM   #79 
     - owning kiddie porn...  northernlights   Jun-15-08 03:19 PM   #29 
        - I would answer your first paragraph by referring you to my last paragraph of post # 30  Time for change   Jun-15-08 04:09 PM   #31 
        - I tend to agree with you.  FarceOfNature   Jun-16-08 04:59 AM   #61 
           - Thank you for all that information  Time for change   Jun-16-08 07:04 AM   #65 
        - The real danger of the internet is not in the images themselves but the communities created online..  FarceOfNature   Jun-16-08 03:58 AM   #60 
  - You ask: Shouldnt a competent defense attorney have gotten this case dismissed for lack of probable  truedelphi   Jun-15-08 02:55 PM   #27 
  - I'm very glad  Time for change   Jun-15-08 06:08 PM   #38 
  - I think it would have been more helpful to the case if, when you got  Vinca   Jun-15-08 05:02 PM   #33 
  - That may be a good point  Time for change   Jun-15-08 05:17 PM   #36 
  - you'd think the prosecutor  barbtries   Jun-15-08 05:16 PM   #35 
  - Thank you.  Time for change   Jun-15-08 08:56 PM   #49 
  - Someone should look into whether Restronics has a sweetheart deal with police to "catch" people...  DRoseDARs   Jun-15-08 07:07 PM   #41 
  - I hadn't thought of that  Time for change   Jun-15-08 09:24 PM   #53 
  - blank check  Two Americas   Jun-15-08 08:02 PM   #45 
  - Very good points -- That's what I feel so uncomfortable about this law  Time for change   Jun-15-08 08:46 PM   #47 
     - my guess  Two Americas   Jun-15-08 08:59 PM   #50 
        - That's a scary thought  Time for change   Jun-15-08 09:51 PM   #54 
           - all speculation of course  Two Americas   Jun-15-08 11:05 PM   #56 
  - Sounds like you were set up. Mabe for political reasons. Are you a DEM?  L. Coyote   Jun-15-08 08:46 PM   #46 
  - Yes, I'm a Dem, but it wasn't me that they went after, it was my nephew  Time for change   Jun-15-08 08:50 PM   #48 
     - Did it disrupt your life? Can you claim you were targeted?  L. Coyote   Jun-15-08 09:06 PM   #51 
        - It sure as hell disrupted my nephew's life  Time for change   Jun-15-08 09:23 PM   #52 
  - My .02.  varkam   Jun-16-08 12:06 AM   #57 
  - "If the state in question depends upon the control issue, and the images were in Jim's computer  Time for change   Jun-16-08 02:20 AM   #59 
  - Because it is Jim's computer.  varkam   Jun-16-08 05:47 AM   #64 
     - The God damned prosecution didn't even take the time to get a computer expert  Time for change   Jun-16-08 07:25 AM   #67 
     - Couple things  varkam   Jun-16-08 12:25 PM   #73 
        - It's hard to be calm about this after this prosecutor so callously destroyed several months of my  Time for change   Jun-16-08 02:41 PM   #77 
           - I understand your emotions.  varkam   Jun-17-08 04:32 AM   #81 
              - Thank you for your input  Time for change   Jun-17-08 09:12 AM   #88 
     - It does seem odd, doesn't it?  kgfnally   Jun-16-08 12:45 PM   #74 
        - Indeed.  varkam   Jun-17-08 04:35 AM   #82 
  - absolutely agree with you, and posted my thoughts RE: dubious justifications for prosecution.....  FarceOfNature   Jun-16-08 05:04 AM   #62 
     - Exactly. It's hard to determine a causal relationship.  varkam   Jun-16-08 05:42 AM   #63 
     - In those circumstances, I don't think they are dubious justifications,  KCabotDullesMarxIII   Jun-17-08 01:19 PM   #90 
  - I have thought hard about answering because you have no remedy.  tsuki   Jun-16-08 09:36 PM   #80 
  - Thank you for the advice. Jim will take a look at this.  Time for change   Jun-17-08 09:06 AM   #85 
     - Don't thank me. I brought a lot of grief down on me. There is nothing  tsuki   Jun-17-08 04:09 PM   #93 
  - The reality is that this has nothing to do with kiddie porn or pedophilia.  readmoreoften   Jun-17-08 05:22 AM   #83 
  - Thank you -- Those were some of my thoughts  Time for change   Jun-17-08 09:10 AM   #86 
  - I have a dear friend undergoing a really unfair trial with the justice system.  live love laugh   Jun-17-08 05:57 AM   #84 
  - Yeah, just look at Guantanamo Bay  Time for change   Jun-17-08 09:11 AM   #87 
  - Is there any way to link this to Bush?  poliscifanboy   Jun-17-08 01:54 PM   #91 
  - I would talk to another lawyer about the possibility of going after Restronics,  yardwork   Jun-17-08 02:06 PM   #92 
  - recently a kiddie porn case was tossed out cause the pics came  mdmc   Jun-17-08 04:14 PM   #94 
 

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