A Malicious Prosecution in my Family

[Time for change]

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 (I’ll 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 didn’t). 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 didn’t want to lose. Then Restronics decided that our computer wasn’t 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.

Wouldn’t you think that that would have ended the case, by pointing to Restronics as the far more likely guilty party? That’s what I would have thought. But instead, several months went by, with my nephew’s life hanging in limbo, before the prosecutor even had time to discuss the matter with Jim’s attorney. And when she finally did discuss it with him she still refused to close the case.

I talked with Jim’s 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? Wouldn’t 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, Jim’s lawyer did pursue the case on First Amendment grounds, and a couple of months ago the case was dismissed on that basis. And now Jim’s lawyer says he’ll need another $300 to expunge the record of this sordid mess from the files.


The Child Pornography Prevention Act of 1996

I’ve talked to Jim’s lawyer and I’ve tried to research the law under which Jim was charged, and still I’m unable to understand this whole thing. Before this episode I didn’t even know that it was illegal to have child pornography on one’s 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 that’s because computer generated images of children having sex don’t involve the exploitation of real children.

That’s another issue in Jim’s 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 Orwell’s “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 Jim’s 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 don’t charge someone with a crime punishable with several years of prison, thereby forcing them to spend a fortune in legal expenses, until there’s at least reasonable cause to believe that the person is guilty!!

I asked Jim’s lawyer why the prosecution continued to proceed when there was so little evidence of Jim’s 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 won’t 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. I’m sure that we can all agree that that is a worth while goal.

But how does the mere possession of pictures on one’s 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 one’s computer against the owner’s 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 I’m 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. Shouldn’t 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?

[ck4829]

1. Something does sound a bit odd about that

An IT guy should probably know not to put that stuff on his computer and not be able to tell it can be found by someone else in some way.

[dems_rightnow]

2. It's pretty well-established

that child pornography is not protected free speech under the First Amendment. I'm puzzled by any dismissal on those grounds.

As far as malicious prosecution... there is ample evidence of a crime- the existence of child porn on the computer. How it got there is the question. WHOEVER put it there committed a crime.

[ck4829]

4. I don't think I ever said it was protected under the First Amendment

I think I said that it seems odd that an IT technician would do something like that and not think he could get caught.

[AmyDeLune]

23. According to an IT tech I know, there is no reason a tech should be looking at image files

on your hard drive. None of the techs should have been looking at any of the files at all outside of virus checking and that can still be repaired without looking at/reading the contents of the file as far as I know.

[Time for change]

44. I didn't think of that

That's important to know if we go after Restronics. If your friend is right about that, they should have a hard time explaining why they were going through the files on Jim's computer.

[Time for change]

7. The main question at issue here isn't whether or not there was a crime

The question is whether there was evidence of a crime committed by the person who was charged with it.

Don't you think that the evidence that Restronics is the guilty party is much stronger than the evidence that my nephew is the guilty party, since kiddie porn was also found on my computer as soon as Restronics returned it to us, and that the the KP on my nephew's file was accessed while in Restronic's possession several months before they reported it to the police?

[dems_rightnow]

9. I seriously have no idea.

I've no knowledge of how the pictures got there, and wouldn't deem to put forth a completely uniformed opinion on that.

I'm glad your nephew seems to be off the hook, though.

[Time for change]

13. I'm just as guilty as my nephew is

Kiddie porn was present on both of our computers (while in the possession of Restronics).

The only difference in our situations is that in his case it was reported to the police and he was charged with a crime. In my case, nobody reported it.

[Time for change]

11. Self-delete -- wrong place

[Time for change]

26. First Amendment: What Jim's lawyer explained to me, and the USSC decision from the link in the OP

What the USSC concluded, from the link in the OP, in the Ashcroft v. Free Speech Coalition case is that, though kiddie porn is generally not protected by the 1st Amendment, that only applies when real children are used. No ruling has been made for whether or not it's protected when real children are not used (i.e. computer generated images).

So, my guess is that Jim's lawyer had the case dismissed on First Amendment grounds on the basis that it couldn't be proven whether or not real children or computer generated images were used for the kiddie porn found on my nephew's computer.

[Freddie Stubbs]

71. A former state Attorney General should know not to hire prostitutes with

money which is traceable to him.

When people are thinking with their d**ks, they don't always act rationally.

[rucky]

3. Thanks for sharing the story. What a nightmare.

It shows how easy it is to put somebody in jail, and without this attorney, Jim could be in jail - would be the worst brand of inmate within the prison hierarchy.

I'm not a lawyer, but it seems to me that Jim got himself a good lawyer. And by pursuing it on Constiutional grounds, it gets to the root of the problem - not just Jim's case, but the methods used to hunt him.

$300 to expunge the record also seems about right, considering the paperwork involved.

Just my two cents

[Smarmie Doofus]

5. That's why it's a bad law:

>>>>>>The law
And what about the law itself? I won’t 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. I’m sure that we can all agree that that is a worth while goal.

But how does the mere possession of pictures on one’s 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 one’s computer against the owner’s 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?>>>>>

Answers: 1. It doesnt.; 2. They certainly could... and undoubtedly DO. 3. That's quite an onus to put on pc owners. We will occasionally allow others to use the pc and one can only guess what the pc is collecting and storing on its own via spyware and adware.

What a nitemare scenario. Glad it at least turned out well... legally speaking. Emotionally it will be a long time before those scars go away... esp. for your nephew.

Any possibility of a civil suit for prosecutorial misconduct? That's the only way to keep these Nifong types in check... seems to me.

[Time for change]

8. I've suggested to my nephew that he pursue a civil suit, and he's explored it with his lawyer

I don't know yet what his lawyer had to say about it.

[TexasObserver]

15. Since we know kiddie porn was present, it's not malicious prosecution.

It's overzealous prosecution, at best.

The question is not whether a crime was committed, but who committed it, and more importantly, whether it can be proved.

The prosecutor pursued the party they thought was the perp. They concluded, rightly or wrongly, that Restronics was unlikely to be the guilty party because Restronics found and reported the KP. Of course, that may have been an erroneous premise. As you point out, someone at Restronics may have been using computers in their custody for saving KP. In that regard, I think your theory is a sound one. I agree with you. It's either the foreign student or someone at Restronics.

I don't think you'll have any luck getting a lawyer to represent the nephew in suit of malicious prosecution, unless it is on the basis not of contingency, but hourly fee. The lawyer is a technician, like the guy who fixes your car. He wants to get paid for his work. The CAUSE is secondary to getting paid.

[Time for change]

22. I don't understand why the fact that a crime has been committed immunizes

the prosecutor against being pursued for malicious prosecution. Here is a definition of malicious prosecution from Wikipedia:

Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.

http://en.wikipedia.org/wiki/Malicious_prosecution

[Joe Chi Minh]

39. Good. I agree with your "take" on it on all counts, and understand

your utter incredulity. If a sick and driven individual working in a storage place is in a position to access illegal material on someone else's computer, it's difficult to imagine he would not do so. Given the facts, the most elementary common-sense suggests your nephew is the least likely suspect, and in any event, as you point out, in those circumstances legal ownership of the machine would hardly constitute evidence - even if he had been the guilty party! And waiting 7 months after finding the images before going to law suggests the pedophile who did have access to it during that time was pushing his luck as long as he dared. He might have left his prints on the finger-keys; for venal reasons, the prosecution's IT expert's testimony could well have been perjurious or verging on it, and an independent expert brought in by the Prosecutor or your nephew's own lawyer might have turned up compelling evidence to the contrary.

On the other hand, if that truly demonic, female prosecutor (Did she think your son had broken into the storage facility?) had been prepared to do the job she was paid to do, in connection with the case, might it not have been possible for a serious investigation to have turned up evidence inculpating the owner or an employee of the storage facility? The pedophile might have had such a record, and there might have been earlier court cases of a similar nature brought by them. The vile Prosecutor's indifference to your wife's discovery on your computer - as if you would have put yourself at such risk, if you had had a bad conscience - was surely the last straw. She possibly felt you were likely to be a gentleman in very good standing in the community and your work-place, and brought trouble on herself for her shocking dereliction.

One point, though not necessarily of law, that I would make, concerns computer-generated images of pedophilia. A person depraved enough to want to view them would surely not be satisfied to stop at that, but would surely search for the real-life images, so the penalties should, imo, be no less severe.

But why do they call it "kiddy porn". Are they trying to make it sound "cuddly" for crying out loud! It's like the newspapers with "fat cats". No. The word is "sharks"! And GOP for Republicans. Don't use their framing.

As you point out, too, we could all have such stuff uploaded to our machines by people with the know-how. I'm fortunate in that I'm under surveillance in every room all the time and naturally, on the computer, and I seem to be in not-too-bad standing with the clandestine people at the moment.

[Time for change]

66. The venal prosecutor simply showed no interest in even considering any other possibility

than that my nephew was the guilty party. It was several months before a computer expert was even retained in order to establish when the images were downloaded. He couldn't say for sure. All he could tell us is that the files were "accessed" one day while in Restronic's posession, 7 months before they called the police. So, theoretically it could have been my nephew who downloaded the images, or it could have been me (but it wasn't), as I said. But the fact that both of our computers had KP images on them tells me that the only common sense explanation, as you say, was that someone at Restronics did it.

With regard to charging someone with a crime who views computer generated images of KP that don't use real children to generate the images, I don't feel that that should be considered a crime. FarceOfNature had some very interesting things to say about that:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=3455980&mesg_id=3461500

[Joe Chi Minh]

68. I found FarceOf Nature's post interesting, but not persuasive.

The tribal culture can have relevance, of course, such as with regard to the age of a young bride in a particular society. The vilification Gerry Lee Lewis suffered from our press on a visit here, particularly since it is a profession notorious for its degeneracy, was, imo, shocking, however non-ideal marrying a post-pubertal 13 year-old can be considered. It was culturally acceptable where they came from and in many other parts of the world. Not that I think it helped his young wife being his cousin! However, I didn't find FON's reference to the tribe with the bizarre initiation ceremony at all relevant. I didn't get the impression that the tribe was given to incest or pedophilia, and suspect that whatever the reality on the ground, they would always be subject to taboos in all societies. Maybe I'm wrong, though.

Of course, I am speaking from a formal (and I suspect, informal) Christian perspective, here - sins are not neatly compartmentalised, but have repercussions in terms of temptations and/or sins, in other, often quite disparate, areas. Moreover, when indulged, the effects are cumulative, until, if unchecked, eventually the person's soul will become inured to sin all together.

I can understand FareOfNature's jurisprudential scruples concerning attributing an intention to harm children in that context, but for the above reason, I believe our intuitive feeling and common-sense, however unquantifiable, form a superior basis, indeed the only sound basis, upon which to view the action of looking at images of naked children. What penal sanctions should apply may well be another matter, particularly given that your society is now Stalinistic and totalitarian, and your prison system, a gulag-archipelago of citizen slave-holdings, surely owned by some of the most evil and sinister businesses in the world.

I've assumed all along that none of the children concerned were being subjected to any physical, sexual violation, which would take it to the level of an evil beyond any other.

My comment about the use of the term, "fat cats" in our countries, (the UK and US) was very sweeping though, as not all rich men, of course, are sharks, but the latter are invariably described in our press as "fat cats", never as "sharks".

[Time for change]

69. Our gulag-archipelago

To me, that is one of the most salient facts about our country right now, and it probably at least partially colors how I view KP laws.

When someone is incarcerated for viewing pictures, though they have not in any way contributed to the exploitation of anyone, I view that as very scary. Some have pointed out that those who would view such pictures are more likely to actually hurt children (though others disagree with that). Even if it's so, the idea of incarcerating someone for what they might do seems to me like the road to hell.

You know what is the biggest genetic predictor we know of for violent crime? The Y chromosome. But I've never heard anyone suggest that we incarcerate people for that.

[Joe Chi Minh]

70. It wouldn't be at all practicable, Tfc! It certainly is the road to hell,

even to entrust your computer to a third party, if your story is any guide. Even a for repair!!!! A lot more expensive to have the repair done in your own home. Wow! You Americans seem to be living on the edge every moment of the day, it seems.

[Time for change]

72. I'm afraid it's true that our country is going to hell now.

Yet most Americans don't take it seriously enough.

I certainly was not suggesting that all of us with Y chromosomes be locked up. I was just saying that once you begin incarcerating people for what you think they might do rather than for what they do, the opportunities for abuse are endless. I have no idea what makes someone want to look at KP. But I don't think that they should be incarcerated for it, as long as they don't start doing stuff with real children or actually contributing to the incarceration of children. Give them psychological help, but don't punish them for something that they might do.

[Joe Chi Minh]

75. I was kidding about the 'y' chromosome, and I understood your point.

I believe, however, that it is ultimately a spiritual issue (as, indeed, adult heterosexual copulation is), not a psychological, still less a physiological one, even if a person were conditioned by pedophile parents. With the exception of essential psychopaths, we are all made to the same basic spiritual specifications re our sexuality, and capable of any number and range of perversions, though I think in the case of the more outlandish ones, the individual concerned would be likely to be in the thrall of a devil/fallen angel/demon. I doubt if cars and pavenments, for example, would give out the right pheromones for any man... In the end, it comes down to a man's sense of moral beauty and ugliness.

It seems to me that, as infants, to the extent that they were sexual at all, homosexuals would have been heterosexual. Although the matter of men born with an extra x-chromome raises what seems to me imponderable questions. I mean, in 1961, when I was working as hospital porter, there was an Austrian lad called Peter there who told me he was a hermaphrodite, and had travelled all over the world, including Russia, to try and obtain treatment with what he called, testosterone (a word unknown to most of us at that time, and presumably scarce), to remedy a fault in his endocrine system. He seemed masculine and evidently saw himself as masculine. A few years later, while on leave and visiting Westminster Cathedral, I chanced to meet a lad who worked in the path lab, who told me that Peter had committed suicide one Christmas Eve. On the other hand, there are other similarly-afflicted men, who really look and act in very feminine ways from the earliest age.

It's quite an oppressive subject, isn't it, So I'm going to give it a rest for a while, now, though you may feel duty-bound to respond to posts.

[Time for change]

78. It's a subject of which I have very little understanding

Anyhow, I appreciate the understanding you expressed of the situation that my nephew found himself in.

[Joe Chi Minh]

89. Not at all. By a strange coincidence, after signing off yesterday, I found myself

reading a pasage in Hunter Thompson's Kingdom of Fear on the very topic of your current lawless enforcement racket and its myrmidon lawless enforcers.

In case you haven't read it, he was charged with felonies arising out of the mendacious accusations against him by a female porn-film producer, who cold-called at his place in Aspen to try to get him to cooperate in some sex-toy manufacturing enterprise. The Sheriff had his house and premises searched over a period of 26 hours, and came up with very little: basically small traces of marijuana.

He refused a plea bargain and ended up being charged with a number of felonies, which would probably have led to several years in jail. It was bigger in his eyes than a marijuana rap, and determiend to fight in on the Fourth Amendment. That was what rallied people round. As he put it: "Today the Doctor, tomorrow you." Even many conservative types in Aspen saw his point.

I don't know if at that time he fully realised the "gulag slave-labour" rational, but he sure saw the danger looming, noting that it started via the Nixon/Reagan legacy on the Supeme Court. The cops can break down your door on the basis of someone's unsupported word.

[MiniMe]

6. It sounds like one of those chain of evidence problems

Like the ones that ended up getting OJ off.

[Time for change]

10. I think it's far more than a chain of evidence issue

"Chain of evidence" generally applies to what happened to the evidence once the crime begins to be investigated. In this case it appears that the organization that reported the crime very likely contains an employee who actually committed the crime several months before it was reported.

[TexasObserver]

12. The $300 for record expungement is CHEAP.

Why would you think the expungement would be covered with the price of representing your family member on the charge? The case the attorney was hired to defend is the one he won. Expungement is about removing from the official records any hint of the charge.

As for the First Amendment argument, the attorney prevailed and got your family member OFF. He clearly knew what he was doing. Your argument is a weak one, because it goes to the issue of judging the quality of the evidence. That is a non winner, because the prosecution only needs the thinnest of rationales and facts to keep a case active. You, your nephew and the whole family are lucky you had a lawyer who knew what he was doing.

The prosecution is not driven by reason or logic. They think everyone is guilty the instant anyone connected to law enforcement thinks the accused is guilty. They presume, not innocence, but guilt. Every time. We are now dealing with a nationwide epidemic of prosecutors and law enforcement who think any means they use is a valid path to their ends.

The most logical explanation is that the foreign student used the computer and downloaded the porn. It's possible Restronics did it, but that would require experts whose costs make the attorney's fees seem small by comparison.

If your nephew got out of this for less than 10 grand, he got off paying less than one would expect. We live in a world of prosecutors and law enforcement now. They can make anyone's life miserable on a whim, and often do, just as in this incident.

[Time for change]

16. My problem with the expungement of the records is not so much the price

If records can be expunged for a large price, that means that wealthy people can avoid having these things on their record while those without much money will be unable to do much about it. It seems to me that this is terribly unfair. Why not charge an even larger fee in exchange for the defendent being allowed to determine the verdict himself?

It is difficult for me to believe that this is legal. Either records should be expunged or they shouldn't be. It sounds like blackmail to me.

Why do you think that it is more likely that the refugee living with us put it there than that Restronics did. Kiddie porn also was on my computer when Restronics returned it to us. What a coincidence that kiddie porn was found on the only two computers that I know of that Restronics had in their possession for several months!

[EFerrari]

18. Somebody at that company has found an easy way to cover

their own behavior -- until they get caught.

I'd call the police and ask in a general way about it unless you know someone on the force that can help you. What a racket.

[Time for change]

37. I think that's probably a good idea

I had never thought of that until I read your post. I guess that I just felt that informing Jim about it and advising him to inform his attorney would take care of it. In fact, as I think about it now, didn't he have an obligation, as an officer of the court, to inform the police about this?

Anyhow, since I read your post I've talked with Jim about it, as I don't want to make any move without discussing with him first (I had his permission to post this OP), since he's the one whose life has been hurt by this most. Jim told me that he doesn't want me to call the police now, that he first wants to hear what his attorney has to say about it.

There's another issue here too, which I didn't discuss in the OP because I didn't consider it relevant to the points I wanted to discuss. When my wife first saw the pictures on our computer she flipped out. She then called Jim and asked him to get rid of the evidence immediately, which he did (Since he's an IT person, she felt he would know how to get rid of it). I guess her reasoning was partly because that she was afraid of us (me and her) being drawn into this mess, and also she felt emotionally that our family pictures were soiled by virtue of being right next to the kiddie porn pictures.

I can't remember what my reaction was at the time. Either I advised against destroying (or whatever term is appropriate for removing evidence from a computer) the pictures, since they were the only hard evidence we had that would protect Jim, or else they were destroyed before I even knew that she planned to destroy them. In any event, I was against having them destroyed, for the reason I mentioned above.

I bring this up because, depending on what Jim decides, I will need to talk to my wife before I call the police about this, and my guess is that she will be adamently against it because she will be afraid that I might then face the risk of going to prison (which I doubt is the case). But maybe not, because she certainly didn't object to notifying Jim about it initially and advising him to tell his attorney.

[Viva_La_Revolution]

40. He can avoid paying that by doing it himself....

There's a form you can fill out and file yourself.

[Time for change]

42. Ahhhhhhhhhh. Thank you.

I'm sure Jim will be glad to hear that.

[acmavm]

20. Very valid point made here. It's the same theory that guides this admin.

<snip>
We are now dealing with a nationwide epidemic of prosecutors and law enforcement who think any means they use is a valid path to their ends.
<snip>

And their ends are not necessarily in the best interests of the American people.

[bertman]

14. I'm sorry for Jim's and your tragic involvement in this mess.

Sad to say, this happens every frickin day. Some prosecutor who needs a story or has a bias or gets a wild hair up his/her arse can ruin someone's life.

There have been so many cases of prosecutorial misconduct on all types of cases, and especially capital cases, that it's disgusting.

The remedy, of course, is to hold accountable the prosecutors who commit these fell deeds. For instance, a prosecutor who gins up a capital murder case with evidence he/she knows to be false, is guilty of attempted murder in the pursuit of his/her own personal ambition. Is there a law on the books that allows for the prosecutor to be prosecuted? I don't think so. Unless I'm mistaken, the penalty is disbarrment. Wooooo. How terrible!!!

Put the bastards in prison. That'll stop a bunch of this crap.

[Time for change]

43. I agree -- They should be held accountable for these things

At least there is a on the books for civil cases to collect damages. It's called malicious prosecution:

The elements of a malicious prosecution case are (1) that the defendant filed and/or prosecuted the underlying civil action; (2) a favorable termination of the prior case, in which the innocence of the former defendant was established; (3) the absence of probable cause, meaning that no reasonable attorney would have considered it to be tenable; (4) malice, which can be implied from a conscious disregard for the consequences, from a lack of probable cause, and from inadequate investigation and research, and (5) damages.

Regardless of the subject matter of the underlying lawsuit, the theme will generally be that the lawyer-defendant has violated a sacred public trust which bestows the power to file and prosecute legal actions. Counsel for plaintiff will want to show that defendant is a threat to the judicial system and deserving of the indignation and contempt of decent society.

http://www.blumberglaw.com/article-malicious-prosecution.htm

[Greyhound]

17. Welcome to life in the fourth reich.

All of us are subject, at any time and for any, or no, reason to baseless and unrestrained persecution by the state. The persecutors are political appointees or are politicians themselves and they have an agenda. The process has been built and depends on the fear of the sheeple and is unrestrained by any authority including The Constitution.

Thanks to the morans that bought into the "New Fascism" of the 80s. We enthusiastically supported the destruction of a hundred years of constitutional precedent and abrogated our societal responsibility to those that promised to "make us safe".

I am so sorry that this abomination has found it's way into your lives. Perhaps it will create another family that will question the prevailing wisdom that is spewed at every opportunity. From minimum sentencing to smoking bans, it is all part of the same mindset, that being that others know better than you what is right for you.

[Time for change]

19. This law reminds me very much of drug possession laws

Hundreds of thousands of people in jail for the mere possession of drugs. I've written about that a number of times previously:

http://journals.democraticunderground.com/Time%20for%20change/33

[TBF]

21. Sounds like the defense lawyer did ok - and maybe he thought he had the

best chance of getting him off with the First Amendment argument. The whole thing sounds fishy, though, and I wouldn't be taking any of my computers back to that shop.

As for the $300, that's about right. The attorney needs to call the clerk to get a copy of the order of dismissal and if there is a way to "expunge" that would require paperwork as well. We have a family attorney and he is $250 an hour - which is not outrageous. Corporate attorneys are much more expensive.

What an ordeal for you both to go through though. Really sucks - since the facts as you describe them leave a lot of questions as to whether your nephew even owned the pics in the first place. Could just as easily have been an employee at Restronics.

[rebel with a cause]

24. Don't take this the wrong way, but I am going to look at the case

through the investigators eyes and this is with the assumption that everything you said is true and with the fact that I believe it should be illegal to own kiddie porn. Explotation is Explotation, and owning kiddie porn encourages the person that took the picture to take more. And it encourages the owner of the kiddie porn to perhaps take pictures themselves or obtaining more photos which will encourage others to continue.....You get my gest. And yes, I have experience in child welfare and working with exploited children.

Okay, on to the case. It is established that there has been a crime committed, no argument. We then follow the trail left on the computer. Was your nephew in sole possession of the computer during the time it was probable the porn was downloaded? NO!

Who else had access to the computer? The aunt, uncle, boarder and the computer repair shop. Does the aunt, uncle, or boarder remember seeing these files on the computer while it was in the basement? No, they state they do not remember seeing the files on the computer. Does the nephew remember seeing the files on the computer the last time he had access to the computer. According to him the answer is..No!

Is it likely that the four people who had access to the computer prior to the fire in the house are in league with each other and as a group are guilty of dealing in child porn? No proof of this being the case.

How many times was this file on the computer accessed while it was in the possession of the repair shop? Several and this began five months prior to it being reported. Question those that had access to the computer at the repair shop on why this was not reported immediately and why they continued to open files on the computer following the discovery of the porn file. No satisfactory reason given but no proof that any wrong doing occured at the shop.

Results of investigation: according to the facts given there is no clear proof of who possessed the computer when the porn file was downloaded and no prosecution should take place at this time. Case closed with a possibility of it being reopened if further evidence becomes available.

[Time for change]

25. I agree with all you say here, except for one thing

"Owning kiddie porn encourages the person who took the pictures to take more".

I don't understand that statement. I could understand it if it was paid for. In that case, it could encourage the person who took the pictures to take more. So, I agree that it should be illegal to pay for kiddie porn because that in fact would encourage the person who took the pictures to keep on doing it, so paying for it could be seen as contributing to the exploitation of children.

But I can't see how merely having it on your computer can contribute to the exploitation of children. The person who took the pictures has know way of knowing that you have it on your computer, so how can that contribute to anything?

With regard to you last sentence, I most certainly aree with that: ".... Case closed". That's why I'm so incensed with the prosecutor for this. Those facts could have easily been determined within days, and before the charge was made. Instead this dragged out for, I believe, more than a year. And it was hell for my nephew.

My wife and I even made an appointment to meet with the prosecutor in person to tell her what we knew of the situation. And then she cancelled the appointment without even telling us about it -- we found out it was cancelled on the day of the appointment, through her secretary, when we called to confirm the appointment. God, I hate her!

[rebel with a cause]

28. Person who have these porn sites often know how many

times their stuff is downloaded. Also, many times these sites are set up where they share with others and then they share with them. I don't know enough about computers or sites to argue this, but once you have worked in this field and with exploited children, then my sympathy goes to them and not to anyone who takes part in thier exploitation, even if it is by downloading the photos. I have a question for you. Why would anyone download these pictures if not for reasons connected to pediphilla?

If it is for research, which is the usual excuse given, then you should be able to prove that. In fact, the smart thing to do is do your research with police aid. You can get more information and you are covered legally.

[Time for change]

30. Ok, let's say that whoever took the pictures knows how many times their sites are downloaded

Still, what do they gain when their sites are downloaded for free? I can't what they might gain by that.

As far as sharing with others, I guess your point is that having the pictures on your computer might be a prelude to them sharing the pictures with others. Well, I guess it might. If so, then it seems to me that that should be the crime, not simply having it on your computer.

I am just totally against prosecuting people for potential crimes. I think that a law like this is way too susceptable to abuse, just like drug posession laws are.

As far as why anyone would download them, I understand that there are people who like to look at such pictures. I have no idea why, or what it means about them from a psychological point of view. But looking at pictures is not the same thing as actually interacting with a child in a harmful way. I don't know anyone personally who likes to look at such pictures -- that is, I don't know anyone who has admitted it to me. But my guess is that most people who like to look at such pictures would never actually harm a child.

I understand that there is a movement in this country to incarcerate certain persons based simply on the determination that their personality characteristics make them a high risk for committing certain crimes. I am totally against that type of thing. I believe very strongly that people should be punished for what they do, not for what they think or what some expert determines to be a high risk personality characteristic. I believe that punishing people for owning pictures is very similar to punishing them for their presumed personality characteristics. Looking at pictures doesn't hurt anyone in my opinion. Once you start punishing people for that kind of thing, there's no telling where it will end.

[rebel with a cause]

32. We will have to agree to disagree about the pictures

and whether or not having them should be a crime. I also disagree with the statement that pediphiles that look at these pictures seldom touch a child inappropriately. You might be surprised how many people sexually abuse children and get by with it. How many people that think it is quite alright for them to do so. I worked with children who had been sexually abused from birth, and many of these children became abusers themself. Sex=power to these children, and they use it to have power over children smaller than they are. These children are put in places where they can get treatment but there is no way to know if they will stop the cycle. The adult who abused them in the first place often went unpunished because the courts/juries would not take a child's word for it, thinking a young child would not be responsible enough to testify. That adult would continue to abuse other children.

Oh and guess what, adults who abuse children both use porn in the abuse and take their own photos to share with other pediphiles. And how does it gain a poster to share his child porn, it gives him a feeling that he is not alone and if he is not alone then what he is doing cannot be that bad, and it encourages him to continue because he is bringing enjoyment not only to himself but to others. There are things to gain from actions besides just financial. I used the term he, but there are women that take part in this too. I have worked with children that have been abused by their fathers and/or mothers. I'm sorry, but I don't think you should be punished for a crime you have not commited but for someone who takes, trades, or downloads child porn photos is not someone that I will defend. I could write you a book on what I have seen, but not here or now. This is all I'm going to say on this.

[Time for change]

34. That's ok

I see where you're coming from on this. Having worked with these cases and seen the damage they cause, you probably have as much empathy for the child victims as anyone.

But it just seems to me that there has to be a better way to combat the exploitation of children than by imprisoning people for looking at pictures, as long as they didn't facilitate the exploitation of chidren in doing so. But I don't have any answers on how best to go about doing that.

[bkscribe]

55. important

"But my guess is that most people who like to look at such pictures would never actually harm a child."

I suggest you abstain from speculating on a subject you have no personal knowledge of, dad. It dilutes your point.

[Time for change]

58. It's just a guess

I'm open to correction if I'm wrong about it.

But my main point is that people should be punished for what they do, not for what they might do.

[bkscribe]

76. Stick to your point then.

People cannot be held responsible for what is downloaded on their computer. Period. While it is true that sometimes someone you know uses your computer, the real issue is that strangers can send files TO your computer. Everyone who goes online is at risk. Computer users who are online often and try to download other things are particularly vulnerable. I've witnessed this happen several times. It was not child pornography, but it is also disturbing for someone who is not looking for this. Most people do not have the expertise to prevent this from ever happening. No one should ever be prosecuted for what merely exists on their computer.

However, every time you wander into making light of child pornography being on computers, you completely blur this issue. You don't know anything about this. You're not a therapist. You're not a psychologist. You haven't even researched this subject. You cannot speculate on the motivations of individuals who create, seek, or distribute child pornography. I know you would agree that those with malicious intent often act without the potential for making money.

To those of us who work with abused children or have friends who have been abused as children, your attitude is offensive. Statistically speaking, it is even likely many of your readers were abused as children. Why don't you get some more information before you post your opinions on such a sensitive subject?

[Time for change]

79. I have more than one point that I've discussed in this post and think is important

I did not make light of child pornography being on computers. I said in the OP "The purpose of the law is supposed to be to protect children against sexual exploitation. I’m sure that we can all agree that that is a worth while goal."

I did say that I believe a person should be prosecuted or punished for what they do, not for what they might do. Once you start imprisoning people for what they might do, you have a system that is very vulnerable to abuse, and you've taken a major step towards a police state.

[northernlights]

29. owning kiddie porn...

does more than lead someone to buy more or take more pix. For a small percentage of the population, vicarious pleasure loses its thrill and they move up to the real thing. The pedophile starts with kiddie porn, but eventually moves on to hanging around playgrounds looking for kids to exploit.

That said, from your description the prosecutor was out of line. There were many people with access to the computer over a long period of time, with no evidence singling out any one of them and a suspect timeline to boot.

The attorney likely pursued the defense he believed would be the most likely to lead to dismissal.

$300 to expunge the record is to be expected. And yes, the well off can afford the legal services needed to clean up such messes, while the rest of us have to go on with unearned black marks on our records.

[Time for change]

31. I would answer your first paragraph by referring you to my last paragraph of post # 30

Here it is:

I understand that there is a movement in this country to incarcerate certain persons based simply on the determination that their personality characteristics make them a high risk for committing certain crimes. I am totally against that type of thing. I believe very strongly that people should be punished for what they do, not for what they think or what some expert determines to be a high risk personality characteristic. I believe that punishing people for owning pictures is very similar to punishing them for their presumed personality characteristics. Looking at pictures doesn't hurt anyone in my opinion. Once you start punishing people for that kind of thing, there's no telling where it will end.

I could accept requiring psychologic treatment for such a thing as owning kiddie porn if it's true that that indicates a risk of moving on to the real thing. But incarceration, no. Once we start incarcerating people for what they might do, we're really moving into dangerous territory.

[Runcible Spoon]

61. I tend to agree with you.

This debate is by no means cut and dry ethically/morally one way or another. I do agree that people who enjoy looking at naked children are sick fucks, as unequivocally reflected by our societal values. The issue is how to deal with them. I don't think anyone sane person would defend the act of the pictures being taken, but should looking at an image of a certain nature constitute an actual criminal act?

I don't think laws should be crafted around whether or not looking at the images entices or lessens a pedophile's urges. The bottom line is we are prosecuting people based on a dubious assumption of intent, and that is really prosecuting a thought crime. You can find an accomplished and well-published behavioral specialist who will tell you that YES looking at child pornography increases the likelihood of the individual actually molesting children, and you can find another just as respected specialist saying the exact opposite, that only individuals already predisposed to this activity would be in possession of such images. Why? Because the reasons people develop these behaviors are complex and very specific to the psychological history of that individual and the influence of the pornography on people is greatly variable.

I struggled with this argument for a long time, especially as a grad student when I did worked with and witnessed through the writing and research of others. What our culture would call pedophilia was as every day event: very sexually open cultures where mothers rub their young children in the genital regions, for example, any kind of sexual initiation ritual you can imagine. All of these behaviors were normalized in their cultural settings. This left me feeling very conflicted as teh children seemed happy and the familial structures seemed stable and loving, but I left with one definite thing: assuming the absolute fixation of moral normality and rectitude is dangerous for a society structured in punitive laws.

I'm not arguing for the absence of prosecution of child molestation; our society has deemed the sexualization of children to be morally repugnant and as such our society should punish that as a serious crime. However, extending that punishment when it comes to looking at images is an extremely dangerous precedent in that the whole basis for prosecution demands the jury to make an impossible ascertainment: what was the INTENTION of the person having this image in his possession? Certainly many museums would be in great danger for displaying controversial sexual images; perhaps they have some sort of protection since it is assumed museums do not exhibit the images for the purpose of promoting child pornography. But what of the people who go there to view the works? How can you prove the intention of someone viewing an image in a museum versus someone viewing an image on a home computer? It's a legal/ethical quagmire.

The whole issue also begs questions in terms of violent imagery/rape fantasy. The very same logic is used in reference to images of non-consensual sex/extreme bondage(even staged; in some cases it's impossible to tell unless subjects of the images are known to be mutually consenting adults); that merely possessing them is linked to an increased likelihood of committing the act. But BSDM images are protected even though the same logic is often applied to rapists. And all at the same time, "Lolita" and extreme fetish sites which dance around legal boundaries continue to thrive on the internet.

*note to any BSDM enthusiasts who might be reading this: I don't by any means intend to conflate this type of fetish with actual rape OR child pedophilia. I am merely referring to the reasoning used by certain groups to outlaw it which I think is just as legally dubious as the argument used to prosecute those holding images depicting certain images.

We need to craft these laws logically and not as an emotional reaction to a tragic event, as is the case with many laws related to children's welfare.

The bottom line is, are child molesters born or made, or some combination? IS this a biological/hormonal condition, or is it created through psychological trauma/conditioning? Can that be discerned with what we know now, and what is the role of pornography in these patterns of behavior? These questions are by no means definitively answered...

[Time for change]

65. Thank you for all that information

It occurred to me while reading your post that we already know what the most prominent genetic marker is for violent crimes of all sorts, including child molestation. That is the Y chromosome. I don't remember the exact number, but people with one Y chromosome are about 10 times more likely to commit any number of violent crimes than those without a Y chromosome. And people with 2 Y chromosomes are about 7 times more likely to end up in prison than those with one. So, what should we do about that? Incarcerate anyone with a Y chromosome? Good luck with that idea. Once we start locking up people for what they might do, we are well on our way to a police state.

[Runcible Spoon]

60. The real danger of the internet is not in the images themselves but the communities created online..

that normalizes the behavior to some extent and in the worst cases facilitates access to children more easily for profit.

The issues of the actual images is more problematic. For some pedophiles, looking at computer generated images purges the desire to actually perform the actual acts. Pedophiles are by no means a homogeneous population in terns of their abnormal sexual/emotional functionality, and things get worse when our culture goes after 19 year olds having sex with 15 year olds.

The act of taking a kiddie porn photographs is certainly a crime, as is its deliberate distribution; but viewing the pictures? This is a highly treacherous sea of legal, ethical, and moral complexity.

[truedelphi]

27. You ask: Shouldn’t a competent defense attorney have gotten this case dismissed for lack of probable

Evidence??

Well HELL YEAH!!

I have always hated this law. Now please, I am not suggesting that as a fifty six yr old granma, I am in favor of the kiddie sex industry. But it takes only ten minutes to fill up a hard drive with smut - and that can be done easily by anyone with lawful access or who is willing to sneak into someone's home and do this.

Also in this day and age, smut can be totally digitized. If someone's fantasies revolve around underage looking girls or boys, and they know graphics, they can create these images without ever involving a living breathing child. So in a sense, a person is being arrested for their sex fantasies.

[Time for change]

38. I'm very glad

that at least one responder to my OP fully shares my views on this.

"So, in a sense, a person is being arrested for their sex fantasies".

Yes, I think that is a good way of putting it, at least for some applications of this law. And I did point in the OP that even our very conservative USSC seems to agree with you and me on this issue (at least partially), as they did hint that child pornography is unlawful only if real children are used to create it.

Laws like this scare the hell out of me, especially after seeing how it has affected someone I care about -- though that may have more to do with prosecutorial misconduct than with the law itself. I see this as having significant parallels with our "war on drugs" and even George Bush's "War on Terror".

Once a government is allowed to arrest and imprison people for victimless crimes or, as is the case with the WOT, arrest and imprison people indefinitely with no evidence at all, we are on the road to hell.

[Vinca]

33. I think it would have been more helpful to the case if, when you got

your own computer back and discovered the kiddie porn amongst the family photos, you had called the police. Obviously someone at the computer place was downloading kiddie porn and probably put it on the other computer, too. Maybe your nephew's attorney should look at the criminal histories of employees at Restronics around that October 17 date. It would be interesting to know what might be on other computers repaired around that time, too. I haven't a clue about the legalities, sorry.

[Time for change]

36. That may be a good point

I felt that by telling my nephew about our pictures and advising him to inform his attorney about them, that would be the best course of action because his attorney would know what to do. I assumed that this would lead to an investigation of Restronics, so the thought that I would need to inform the police personally in order to get to the bottom of this never even occurred to me.

[barbtries]

35. you'd think the prosecutor

being so hungry would have gone after the computer repair place. so sorry you and your family had to go through that!

[Time for change]

49. Thank you.

I think that if you're the predator type, as this prosecutor is, that you want to go after the most vulnerable. Maybe she was afraid to go up against a corporation. Or maybe she just felt that going after Jim was the easiest thing to do. When Jim's lawyer told her that he had evidence that might cause her to drop the case, she wasn't even interested in seeing it. In fact, I still don't know for sure whether she ever made the time to discuss it with him. She cancelled the one appt. she made with my wife.

[DRoseDARs]

41. Someone should look into whether Restronics has a sweetheart deal with police to "catch" people...

...with kiddie porn on their computers that magically appears on said computers AFTER they're placed in the hands of Restronics, as seems to be the case with both Jim's computer and yours apparently.

[Time for change]

53. I hadn't thought of that

Some in this thread have suggested that I call the police. I guess that if they have a deal with Restronics that might not work out too well.

[Two Americas]

45. blank check

The law is a blank check to maliciously prosecute anyone and ruin them, and it is being used to do just that.

I am highly suspicious that there is any epidemic of child pornography at all. If it is occurring, we should go after the producers, close down the businesses, arrest the ones who are actually abusing actual children. It is not as though it would be rocket science to trace materials back to those profiting from it.

A few years back an FBI task force did an exhaustive investigation of this. The only producer of child pornography they could find was the federal government, producing materials for the purpose of entrapping people. One such entrapment case went before the USSC, which I remember because it was the one and only time that Justice Thomas failed to side with the prosecution.

This is the perfect abuse of government authority, since none of us dare question the government on this lest we be accused ourselves of defending or being engaged in this. I usually stay away from this subject for that very reason - angry and hostile comments ensue when you question the actions of the government, if the alleged crime is sufficiently abhorrent. Of course, a tyrannical government run amok knows that, which is why we should be suspicious.

If it is a problem, we should be asking a LOT more questions, for the sake of minors who may be victims. If it is not going on, we should be asking a LOT of questions, for the sake of the rights of all of us.

[Time for change]

47. Very good points -- That's what I feel so uncomfortable about this law

Mandatory jail time for drug posession is the clearest example of what you talk about IMO. It is such a terrible shame that hundreds of thousands of people are imprisoned for long stretches of their life merely for posessing drugs. And there is no question in my mind that these laws are NOT prosecuted evenly, without race and class bias.

I do believe that child pornography is a problem that victimizes children. In fact, I saw it on my computer when it was returned to me from Restronics. But as you say, the way to deal with that is by going after those who produce it, not going after those who have mere posession of it. That leaves so much room abuse in the form of malicious prosecution.

[Two Americas]

50. my guess

It would not surprise me in the least if the origin of those disturbing images you saw were the government. It would also not surprise me if it turned out that a high percentage of the people "discovered" to be "guilty" of this crime turned out to be political dissidents. There is also an enormous risk here of people running personal vendettas using this law, since framing someone would be child's play.

This charge is far too easy to bring, evidence far too easy to plant, the accusation is far too damaging to the (presumed innocent) accused person, and it is far too difficult for the accused to defend themselves from the charge.

[Time for change]

54. That's a scary thought

But I would think that if that was the case they would have gone after me rather than my nephew. If the government put those images on my computer to set me up, then why was it returned to me with the images on it? Why wouldn't they have followed through by arresting me and charging me?

[Two Americas]

56. all speculation of course

Didn't mean to alarm you, but there just have been too many suspicious activities by various government agencies. I know of dozens and dozens of first hand reports about bizarre intimidations and raids and threats.

We shouldn't assume they are competent. Nor should we assume that a conviction is the goal of harassing activities by the authorities. Since the Bush administration came to power, we know that we have unprecedented coordination between and politicization of various law enforcement agencies, and unprecedented encouragement of snitching. In the 60's, every little dissident organization was watched and infiltrated, and today it is much easier to do, and much easier to hide from the public. The fact that there is so little awareness about possible government snooping and harassment than there was in the 60's makes me more suspicious, not less. Certainly the Republicans in power have the desire and mindset to go after us, even more so than the Nixon administration did. All of the firewalls and protections for citizens have been slowly eroded away, as well.

[L. Coyote]

46. Sounds like you were set up. Mabe for political reasons. Are you a DEM?

And an activist? If so, that could explain it.

This is how police states work in their finest hour.
Quite possibly, you have been persecuted politically.

Just be happy the police didn't lock you in a mental hospital and forcibly drug you for weeks!!

[Time for change]

48. Yes, I'm a Dem, but it wasn't me that they went after, it was my nephew

He's a Dem too, but not one that is high enough up in the food chain to bother going after for that reason. I suspect that the prosecutor did this mainly because she thought it would be good for her career.

[L. Coyote]

51. Did it disrupt your life? Can you claim you were targeted?

It fits the mould very well. Covert ops are supposed to be covert!!

[Time for change]

52. It sure as hell disrupted my nephew's life

He was in a state of anxiety for several months. One good thing about it was that his wife was very supportive of him. But still it caused him a good deal of suffering.

[varkam]

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.

[Time for change]

59. "If the state in question depends upon the control issue, and the images were in Jim's computer

then charging him is legitimate."

Why?

There's no evidence that Jim had control of the computer when the images were downloaded. In fact, the evidence strongly suggests that they were not, since they were downloaded from my computer as well.

The images were not cartoons. I saw them on my computer. But my understanding is that it is possible for people to create images of people that are indistinguishable from real people. The USSC decision applies only to real children, or at least the use of real children to create the images. So my guess is that, given that this was dismissed on first amendment grounds, the reason behind that ruling must be that it could not be determined whether the images on Jim's computer were of real children. I believe that I was told that was the case, but I can't remember for sure.

[varkam]

64. Because it is Jim's computer.

If it is his property and the images were on said computer, then I think that would be enough to satisfy a judge to sign an arrest warrant (as was apparently the case) pursuant to the control issue.

There may not be evidence that Jim actually downloaded the images, but I'm assuming that the prosecution believed that they could prove that was the case. It does seem incredibly strange to me, though, that Restronics would somehow mix up the child pornography on his computer and contaminate other computers with it. I'm wondering why they're not getting charged, as well.

It is true that the SCOTUS decision covers "virtual" pornography, such as computer generated images. It seems to me, though, that the burden of proof would fall on the defense if they were asserting that the images were computer-generated and not of "real" children.

[Time for change]

67. The God damned prosecution didn't even take the time to get a computer expert

to ascertain when the files were downloaded until several months (and several thousand dollars) AFTER my nephew had been charged with the crime. Wouldn't it have been the decent thing, knowing that his computer had been in someone else's possession for several months prior to notifying the police, to at least try to ascertain when the pictures were downloaded before charging the owner with a felony? So your assumption that the prosecution believed that they could prove that Jim downloaded the images when they charged him is dead wrong, because they hadn't taken the first step to ascertain when the images were downloaded.

[varkam]

73. Couple things

Wouldn't it have been the decent thing, knowing that his computer had been in someone else's possession for several months prior to notifying the police, to at least try to ascertain when the pictures were downloaded before charging the owner with a felony?

I would think that the prosecution probably discounted the possibility that they were added by the computer techs, given that there are most likely company regulations against that and the computer techs would've drawn attention to their own illicit activity by informing authorities.

So your assumption that the prosecution believed that they could prove that Jim downloaded the images when they charged him is dead wrong, because they hadn't taken the first step to ascertain when the images were downloaded.

I'm not sure what the prosecution assumed, though I don't think it is unreasonable to think that they assumed they can prove something if they charge someone with a crime.

I'm just discussing possible alternatives - take a deep breath. :hi:

[Time for change]

77. It's hard to be calm about this after this prosecutor so callously destroyed several months of my

nephew's life.

I have to strongly disagree with you that discounting the possibility that the the images were downloaded at Restronics is a reasonable thing for the prosecutor to do. You bring up the fact that regulations against viewing porn should be a reason not to suspect someone at Restronics of doing it. If someone is willing to commit a felony, would company regulations against it stop them from doing it? Nobody commits a felony if they don't think they can get away with it. As far as drawing attention to their activities, I could just as well say that calling the police was a way of diverting attention from their activities. Maybe someone caught them, and this was their way of proving that it wasn't them who did it.

So how do you explain the fact that we found the same thing on my computer the day that it was returned to me? And how do you explain the fact that their was a 7 month gap between the time that the file was accessed at Restronics and the time that they called the police?

That prosecutor should be disbarred at best, and better yet sent to prison.

[varkam]

81. I understand your emotions.

I'm a convicted felon, and so I've been through the whole process myself. I know that it is expensive and terrifying. Trust me - you have my symapthies. I guess I'm trying to look at the situation from more of an academic standpoint, which is easy for me to do because I'm not involved with things. I don't mean to come across as callous or indifferent - I apologize if I have come across that way.

I have to strongly disagree with you that discounting the possibility that the the images were downloaded at Restronics is a reasonable thing for the prosecutor to do. You bring up the fact that regulations against viewing porn should be a reason not to suspect someone at Restronics of doing it. If someone is willing to commit a felony, would company regulations against it stop them from doing it? Nobody commits a felony if they don't think they can get away with it. As far as drawing attention to their activities, I could just as well say that calling the police was a way of diverting attention from their activities. Maybe someone caught them, and this was their way of proving that it wasn't them who did it.

It's a fairly commonplace thing, though, for techs to turn in people for child porn. Perhaps the prosecution didn't suspect it because it is so commonplace, though I don't really know.

So how do you explain the fact that we found the same thing on my computer the day that it was returned to me? And how do you explain the fact that their was a 7 month gap between the time that the file was accessed at Restronics and the time that they called the police?

I really can't explain those things. There may be some sort of innocent explanation, but even if there is an innocent explanation then it still seems to me that the evidence was contaminated. It strikes me odd, as well, that they waited seven months to inform authorities. Somthing does stink, IMO, but I'm just not sure what it is.

[Time for change]

88. Thank you for your input

Sorry I was so hyper about it, but this kind of stuff drives me crazy.

[Occulus]

74. It does seem odd, doesn't it?

"It does seem incredibly strange to me, though, that Restronics would somehow mix up the child pornography on his computer and contaminate other computers with it. I'm wondering why they're not getting charged, as well."

Absolutely. In fact, there is only one possible way the images got onto the second computer after Restronix gained possession of both of them, and that's if an employee put them there.

One barely possible scenario: the tech doing the restoration wants to test the network hardware of two PCs from the same location, so he decides to try to transfer all the images from PC A to PC B. Then, he looks at the images on PC B to see confirm they came across the network intact, and "ZOMGWTF KID PR0N I needz has cops". However, while reasonable, this doesn't take into account the huge gap between finding the images and reporting them to the police; that fact all by itself should have turned the prosecutor's attention to the company's employees.

The only way my scenario could be true is if the images on PC B were the same as the images on PC A. If they're an identical set, that might be what happened. If they're altogether different photos, someone at Restronix is downloading kid porn and using other people's PCs to hide it. They'll get caught when someone gets their PC back from the company, finds the pictures, and calls the police.

I'd also like to state that I or any other reasonably competent individual with a decent knowledge of the internet and computers in general could easily "borrow" your laptop for a few hours, load it up with child porn, and hide it such that you'd just never find it, turn you in for having it, and completely ruin your life.

I think these charges are far too easy to bring, and far too difficult to defend against. Short of operating a RAID array on a second, physical box locked up elsewhere so you can prove the images were in fact planted- something few users in general know how to do- you can't prove you didn't get the images yourself.

Some out there might be saying, "what if you set up multiple accounts on your computer?" But that's the thing- it's your computer, and as the sysadmin, you have root access, so the fact that images might be in someone else's /home/user or C:\Documents and Settings\... directory means nothing. You still have access.

What a nightmare.

[varkam]

82. Indeed.

I think these charges are far too easy to bring, and far too difficult to defend against. Short of operating a RAID array on a second, physical box locked up elsewhere so you can prove the images were in fact planted- something few users in general know how to do- you can't prove you didn't get the images yourself.

Theoretically, the prosecution has to be able to prove beyond a reasonable doubt that you were the one downloading the images. Unfortunately, in our day and age, not too many people want to take their chances with a jury when it comes to things like this as they are usually more than eager to return a conviction.

[Runcible Spoon]

62. absolutely agree with you, and posted my thoughts RE: dubious justifications for prosecution.....

as well as the debate about the role of pornography in teh behavioral patterns of child molesters. You're right in pointing out the fact of 80% of all child molesters possessing kiddie porn but it's just as easy to argue that the only people to be in possession of such images are people who were already predisposed to that sort of behavior, not vice-versa.

[varkam]

63. Exactly. It's hard to determine a causal relationship.

That number, too, is in doubt. It comes from a corrections study whose population was both relatively small and, well, in custody. It's hard to say whether or not there was any sort of manipulation on the part of the investigators given the highly charged nature of this sort of thing as well as the fact that the study was withdrawn from publication.

But yes, it does seem hard to determine the exact nature of the relationship. My guess is that it is a lot more complex than the linear model that most people assume.

[Joe Chi Minh]

90. In those circumstances, I don't think they are dubious justifications,

but rather reasonable grounds simply do not exist, so the lad's arraignment is nothing less that scandalous, completely outrageous.

The police who do such a vital job (and, credit where it's due, I believe that your police have largely pioneered the work) in tracking down the members of Internet pedophile rings would surely have proper evidence, however circumstantial, persuasively pointing in the direction of the particular individuals, largely to the exclusion of anyone else in terms of possibilities, never mind probabilities. But certainly in terms of strong probabilities. That was evidently anything but the situation in the case of the nephew of Time for change.

[tsuki]

80. I have thought hard about answering because you have no remedy.

Posting on DU will not change things.

I have been in a situation where I challenged the powers that be.

Write up the incident, with back-up. Scissor the write up, and scissor it again. Cut all emotion. Be your own Sgt. Webb. Just the facts, ma'am.

Then place the information in as many hands as you can. The Office of Civil Rights, the Bar Association, the State's Attorney's Office, whatever. Do your research.

There is no remedy because you are the first of a paper trail. You will be reviled, slandered and libeled.

But a paper trail is very hard to squelch. The more they push against you, the more contacts you will receive. In all cases, you council a paper trail.

In the end, you will prevail, but it will be very costly.

Understand this going in.

[Time for change]

85. Thank you for the advice. Jim will take a look at this.

[tsuki]

93. Don't thank me. I brought a lot of grief down on me. There is nothing

like the machine in full defense mode. And they hate paper.

In the end, all was well.

[readmoreoften]

83. The reality is that this has nothing to do with kiddie porn or pedophilia.

This has to do with the odd fact that people can be charged with what is on their hard drives when those hard drives are out of their hands. It's not just kiddie porn that might "show up" to discredit someone (or just screw with someone) or might even be randomly sent to the hard drive. Pictures of dead bodies could be on the hard drive. False confessions could be half-typed in Text Edit.

First Amendment is a terribly way to go with this. If I take my car to get detailed and 9 months later they call the cops and discover a guy who's been dead for 7 months in my car, "what if I had a reason to kill him" is not a good legal argument there.. Why the fuck is there a dead body in my car is a better response. And I haven't even seen the car in 9 months, so how could've I put a dead body in it 7 months ago, is an even better response still.

They put kiddie porn on Scott Ritter's computer, I believe. This is the real issue. Digital evidence planting.

[Time for change]

86. Thank you -- Those were some of my thoughts

The First Amendment defense seemed like a terrible way to go to me too, when there was no plausable evidence that Jim was responsible for the pictures on his computer in the first place.

But the case was dismissed on that basis -- or so Jim's lawyer says.

[live love laugh]

84. I have a dear friend undergoing a really unfair trial with the justice system.

Perhaps I will share the story here as well. What I now know for sure, and personally, is that the justice system is a farce. Americans should not expect fair trials any longer.

[Time for change]

87. Yeah, just look at Guantanamo Bay

There's a reason why we have the highest incarceration rate in the world. And it's not a good reason.

[poliscifanboy]

91. Is there any way to link this to Bush?

I hope he is somehow responsible, maybe this is the issue they can finaly impeach him on.

[yardwork]

92. I would talk to another lawyer about the possibility of going after Restronics,

based on the fact that your computer is now full of kiddie porn after its stay with Restronics. That can't be a coincidence. At the same time, I'd be careful, because the porn on your computer is illegal too, so if you report it, it's possible that you'll get charged next!

This is a good reminder that everybody should be careful about leaving their computers where other people can access them. I'm not sure how best to protect oneself from companies like Restronics. Is there a way to get companies like that to certify that the computer is pornography-free at the time you drop it off? Then, if anything shows up later on the computer, it will be the company's fault?

This is a whole new area of the law. If we leave our jacket or our umbrella someplace, we don't have to worry that somebody will download illegal files onto our missing property, for which we are then liable. Computers are unique in this respect.

The only parallel I can think of is the rule about not leaving one's baggage unprotected in an airport, because of the possibility that somebody might put a bomb in it.

[mdmc]

94. recently a kiddie porn case was tossed out cause the pics came

from a virus.