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Time for change Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jun-15-08 08:00 AM
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A Malicious Prosecution in my Family
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I, like almost all DUers, am deeply disturbed over the many injustices that so many people in our country suffer today. But when it happens to someone you love it hits you in a way that is different from when you observe it at a distance.

I am seething with anger over the situation that I discuss in this post, so it is possible that I may have lost some objectivity towards it.

The bare facts of the case

More than three years ago my nephew (Ill call him Jim) lived with my wife and me, in a room in our basement. When he left our house in early 2005 to move into an apartment he left his computer in our basement because his apartment was small, and his computer remained available for him to use when he came to our house to visit.

In late summer of 2006 we had a fire in our house, which required us to move out for ten months while our house was rebuilt. As part of the agreement we had with our insurance company, we submitted our computer to a place called Restronics to evaluate it for damage. Jim decided to do the same thing with his computer, which was still in our basement.

In April 2007 Jim was charged with Possession of sexually explicit pictures of minors, based on the fact that such pictures, known as kiddie porn, were found on his computer by Restronics, and turned over to the police. Following that, Jim went through several months of hell, as the stupid court case dragged on and on, Jim went further and further into debt with legal expenses, and the threat of prison hung over his head.

The evidence

So, what was the evidence against Jim that incited the prosecutor (Deborah Armstrong) to put him through all this? Well, the pictures were found on his computer.

Eventually, the prosecution got around to obtaining a computer expert to evaluate the computer to determine when the images were put on it. So what did he determine? He determined that nobody can say with any confidence when or how the images were put there. Jim could have done it himself, either before he moved out of our house or during one of his visits. Or, they could have been put there by the Cameroonian refugee who was living in our basement during much of the time prior to the fire. Or I could have put them there (but I didnt). Or, a Restronics employee could have put them there during the 9 months between the time that Jim dropped off his computer there and the time that Restronics called the police.

Did the prosecutor care about any of those possibilities?

Jim is an IT technician. If he had been aware of kiddie porn on his computer he certainly could have gotten rid of it before bringing his computer to Restronics. And if he was aware of kiddie porn on his computer, would he have brought it to Restronics to leave it there for 9 months?

One thing that the computer expert was able to determine was that the kiddie porn file was accessed on October 17, 2006, several months after Jim brought his computer to Restronics but several months before Restronics called the police on him. When else was the file accessed? Nobody knows.

So, did the prosecutor bother to ask herself why Restronics would wait 7 months between the time that the file was accessed and the time that they called the police? Did the fact that the file was accessed while in Restronics possession cause her to consider the possibility that maybe someone at Restronics put the kiddie porn on the computer? Apparently not, because she repeatedly refused defense motions to close the case.

Smoking gun?

Then in September 2007 we moved back into our house. When we asked Restronics for our computer back they first told us that it was broken. I was quite upset about that because we had been told when we initially brought our computer there that everything was fine. I asked them if at least they could salvage the hard drive, since I had information on it that I really didnt want to lose. Then Restronics decided that our computer wasnt broken after all, so they returned the whole thing to us.

The next day my wife tried to retrieve some of our long lost photos, when she was shocked to find that our computer was filled with kiddie porn interspersed among our other pictures. We contacted Jim to tell him about it and suggest that he inform his lawyer which he did.

Wouldnt you think that that would have ended the case, by pointing to Restronics as the far more likely guilty party? Thats what I would have thought. But instead, several months went by, with my nephews life hanging in limbo, before the prosecutor even had time to discuss the matter with Jims attorney. And when she finally did discuss it with him she still refused to close the case.

I talked with Jims attorney in order to better understand the issues involved. He told me that he planned to try to get the case dismissed on First Amendment grounds. That astounded me. Why try to get a case dismissed on controversial Constitutional grounds when there is so little credible evidence against the defendant? Wouldnt it be a lot easier to make the point that there is no credible evidence that Jim put the kiddie porn on his computer or had any knowledge of it?

Anyhow, Jims lawyer did pursue the case on First Amendment grounds, and a couple of months ago the case was dismissed on that basis. And now Jims lawyer says hell need another $300 to expunge the record of this sordid mess from the files.

The Child Pornography Prevention Act of 1996

Ive talked to Jims lawyer and Ive tried to research the law under which Jim was charged, and still Im unable to understand this whole thing. Before this episode I didnt even know that it was illegal to have child pornography on ones computer. The issue had never occurred to me.

Congress passed the Child Pornography Prevention Act (CPPA) in 1996, and Bill Clinton signed it into law. Though Jim was charged on the basis of a Maryland statute, apparently it is modeled after the federal law. The purpose of these laws is to protect children against sexual exploitation.

In 2002, the U.S. Supreme Court, in Ashcroft v. The Free Speech Coalition, found the CPPA to be unconstitutional on the grounds that it violated our First Amendment. But the finding was on narrow grounds, based on the fact that the CPPA made the possession of kiddie porn a crime regardless of whether or not the images are of real children or are computer generated. The USSC said that it should not be a crime if the images are computer generated. I guess thats because computer generated images of children having sex dont involve the exploitation of real children.

Thats another issue in Jims case. There was no way to ascertain whether or not the images were computer generated or were images of real children.

My questions

This sounds like something out of George Orwells 1984 to me. I have three sets of questions about it one pertaining to the prosecution, one pertaining to the law, and one pertaining to Jims defense attorney.

The prosecution
I had always thought that a prosecutor should have at least a reasonable amount of evidence of the commission of a crime before seeking a conviction. I honestly cannot see how a person with a modicum of decency could put Jim through what he went through on the basis of the paltry amount of evidence described in this post. Investigate the case, fine. But dont charge someone with a crime punishable with several years of prison, thereby forcing them to spend a fortune in legal expenses, until theres at least reasonable cause to believe that the person is guilty!!

I asked Jims lawyer why the prosecution continued to proceed when there was so little evidence of Jims guilt. He said, I guess the prosecutor must have a lot of time on her hands and needs to find a way to make herself seem relevant.

Was there any reasonable basis for this prosecution?

The law
And what about the law itself? I wont even bring up the First Amendment, as I believe that there is a more basic issue here. The purpose of the law is supposed to be to protect children against sexual exploitation. Im sure that we can all agree that that is a worth while goal.

But how does the mere possession of pictures on ones computer serve in the exploitation of children? Certainly a person could have such pictures on their computer without knowing about it. I would assume that such pictures could find their way onto ones computer against the owners knowledge even if nobody else had access to the computer. Does everyone who owns a computer have the responsibility to ensure that no kiddie porn enters it, lest they be subject to several years of imprisonment?

The defense
Jim seems to trust his lawyer completely. His lawyer is a politically active Democrat. But Im not so sure about him. He seems to be have pursued this case primarily as a First Amendment issue. I assume that winning such a case is quite a feather in his cap. But it seems to me that the much more basic issue is the paucity of evidence. Specifically, there is very little evidence to suggest that Jim even had possession of his computer when the kiddie porn entered it, and in fact the evidence weighs strongly against that possibility. Shouldnt a competent defense attorney have gotten this case dismissed for lack of probable cause at the very beginning?

And what is this crap about asking for another $300 to expunge the case from the records. That sounds like blackmail to me. Is that legal?
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