The Ambulance chaser's new practice!

Several enterprising lawyers have come up with a new scheme to make money from the "victims" in child pornography cases. James R. Marsh calls his new practice of suing people convicted of possessing child pornography "a lawyer's dream".  These lawyers are demanding that everyone convicted of possessing even a single image of their client be responsible for the total damages, which runs as high as 3.4 million dollars in some cases. These questionable awards posing as "restitution" are spreading to all federal jurisdictions.  These civil lawyers are claiming that every time an image is viewed, the child is victimized anew.

Mr. Marsh has requested that the federal government notify him every time any of his clients' pictures turn up in a child pornography prosecution.  The Crime Victim's Rights Act of 2005 (Also known as the "Masha's Law" section of the Adam Walsh Child Protection Act) has a built in notification system.  Mr. Marsh then intervenes in any federal prosecution and demands restitution.  He sometimes appears at sentencing and presents a victim impact statement.  He routinely has economists develop a tally of damages which includes counselling, diminished wages, potential mental health problems, and (of course) lawyers' fees.  Mr. Marsh argues that each defendant is jointly and severally liable for all damages.

Mr. Marsh has automated the process and e-mails his client's filings to the United States Attorneys in 350 cases.  He said, "I'm able to leverage the power of the Internet to get restitution for a victim of the Internet."  Mr. Marsh has in effect expanded his small New York Law firm by deputizing thousands of federal prosecutors.  He has received several "restitution" awards in excess of $100,000.

The reaction from the federal bench is mixed with some judges refusing to award restitution saying that the link between possession and the harm done is too tenuous to reach the level of "proximate harm" generally required under the law of restitution.

In addition to federal law, both Florida and Missouri are in the process of passing legislation that would entitle victims of child pornography to sue their offenders for $150,000 per image for possessing or distributing these images.

Child Sex Offender Sentencing Strategies

Some cases are unwinnable.  It is our job to prepare for mitigation at sentencing.

In the last decade, there has been much media focus on the problems of internet child exploitation, online sexual predators, and child pornography.  There is increasing public anger surrounding these hot-button issues.  The media coverage has been sensational and inflammatory.  Everyone is familiar with the NBC Dateline: TO CATCH A PREDATOR series.

There is increasingly a 'lock em up and throw away the key" mentality among the general public.  Pennsylvania and Federal Statutes have mandatory minimum penalties for some of these crimes. Many of the individuals convicted of these crimes have sexual addictions and/or severe psychological diseases.   All of these individuals can be rehabilitated.

From 1994-2007, the mean sentence for Federal child pornography cases rose from 3 years to almost 10 years.  The Federal sentencing guidelines are off the charts.  They are a legislative response to the public outcry.  To quote PA Rep.Greg Vitali, "legislators by and large tend to vote for things based on how the issue can be reduced to a sound bite and used against them."  Keep in mind that possession of child pornography is a non-contact sexual offense.    The prosecution argues that without the market for these images, there would not be the abuse of children necessary to produce these images. Additionally, prosecutors routinely argue that there is an ongoing harm inflicted upon the child victim by each additional viewing of the image of child pornography.  Their contention is rooted in the unproven fear that viewing these images is the first step to committing a contact sexual offense.

In many cases, prosecutors cite a flawed study entitled "The 'Butner Study' Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders" (The Butner Study") to support their assertions. In fact, there are two versions of this study, the published version and the unpublished version. Federal Courts have routinely dismantled both,  calling them "fundamentally flawed in design"  The study has been criticized because it is co-authored by a US Marshall, among other things,  There are several other studies floating around, all of them based upon prison populations.  Most of the criticism of these studies  focuses on the fact that the sample from which most of this data originates is inherently biased.

The challenge for the defense lawyer in these cases is to rebut this empirical data and to distinguish the client's individual circumstances.  Our job at sentencing is to mitigate by putting forth relevant mental health information and the testimony of mental health professionals to persuade the court that the client is not prone to a repeat offense.  Many of these offenders are compulsively addicted to online pornography.  We routinely have our clients examined by mental health professionals.  There are a number of programs available in the Southeastern Pennsylvania Region for people with Sexual addictions. We have been successful in obtaining federal sentences outside the guideline range by arguing a dramatic level of acceptance of responsibility and proving that there is a low risk of recidivism..

Our job is to persuade the court of the unusually high likelihood of rehabilitation because of the mental health support network assisting our client.  These professionals are able to accurately evaluate impulse control, psychopathy, motivation and capacity to respond to appropriate treatment.   It is our job to weave these evaluations into our argument against the likelihood for recidivism.  From a legal perspective, the goal of psychosexual evaluations is to assist participants in the legal system (among others: the court, prosecutor, and presentence investigator)  to understand who is most likely to respond to treatment as opposed to incarceration, monitoring, or some combination thereof.

These evaluations include a discussion of the offender's psychological, physical, and sexual trauma history, which is often present in these individuals.

Most experts divide child sexual offenders into three categories:

The first type of offender is known as the violent offender.  Studies indicate that violent child sexual offenders make up less than 5% of child sexual offenders.  They have been proven to engage in hostile acts toward children  such as child rape, bizarre ritualistic sexual behavior, and murder.  This type of offender is what the public routinely thinks about when they think of any child sexual offender.  These "snatch and grab" offenses fuel the public hysteria..  Most experts in the criminal justice system correctly agree that this type of offender requires long term, if not permanent, incarceration.  Obviously these cases are next to impossible to mitigate.  The prognosis for any type of rehabilitation is questionable.

The Second type of offender are routinely labelled "regressed" or "situational" child sexual offenders.  This category represents almost 80% of all child sexual offenders.  They are most likely to end up in a court of law and also the most likely to benefit from sex offender treatment.  Many situational/regressed types harbor an enduring sexual orientation and social interest toward a certain age group.  According to experts in the field, this individual may enjoy a successful career and family life, most often not offending until presented with specific life stressors or situations.  Often married or in a stable relationship, the situational offender's sexual interest in children is often temporary or opportunistic.  The regressed sexual offender's behavior is episodic, tending to flare up when exposed to emotional stressors (such as job loss, financial stress, or other losses).  In some cases, it is prompted by internet pornography and sometimes even strip clubs.

It is not unusual for a regressed/situational offender to view child pornography, but not to engage in sexual contact with a minor unless disinhibited by drug or alcohol use or under psychological stress.  Alcohol abuse and drug dependency are often identified as precipitating factors for this type of sexual behavior.  Depending on the individual, this type of offender can respond well to behavioral and cognitive therapies.  With appropriate intervention, treatment, and long term monitoring, such an offender is less likely to re-offend.

The third type of child sexual offender is the "fixated" or "dedicated" type.  Approximately 10-15 percent of all child sexual offenders are of the "dedicated" or "fixated" type.    This offender is termed a pedophile if he/she is primarily or solely  aroused by pre-pubescent children. An offender who is aroused by post-pubescent children is called an ephehbophile. They have little interest in sex with adults or find adults not to be sexually arousing,  thus the terms "fixated" or "dedicated"  since their sole sexual interest lies  in pre- and/or post- pubescent children. "Fixated" or "dedicated" sexual offenders seek access to children not only because of a sexual interest in children, but also because of greater social and emotional comfort with children as opposed to adults.  

These fixated offenders remain difficult to treat and have a high rate of recidivism.  There are many programs to reduce hormones and other medications crudely called "chemical castration" which can be utilized to lower the sexual drive and desire.  Behavioral avoidance therapy can be helpful on a case by case basis.  With proper treatment, the fixated offender has been shown to be able to learn ways to avoid child sexual contact and arousal.  The studies are pessimistic concerning the likelihood of the offender to develop interest in adult-oriented sexual patterns.  Most sentences for this type of offender require substantial incarceration, registration, and long term monitoring of behavioral appropriateness.

There has been much talk in the press about sexual rehabilitation centers and the disease of sexual addiction.  This area usually is represented by addictive and compulsive patterns of non-criminal sexual behavior that are compulsive, addictive, or fetishistic (compulsive masturbation, prostitutes, repetitive extra-marital affairs, etcetera).  Recent studies show that between 3-5% of the population may have this sexual addiction problem.

The media will continue to fuel persistent misconceptions and public anxiety about the danger that sexual offenders pose to the society at large.  Possession of  child pornography and internet child exploitation prosecutions have allowed the distinction between contact and non-contact sexual offenders to be blurred.  It is necessary for the defense lawyer to challenge many cultural assumptions and to become familiar with psychological information vis-a-vis motivation and patterns.

Beware

Thanks to Federal stimulus money, Pennsylvania now has the most sophisticated facial recognition software technology: EVER.

Those with alternate PennDot identities are now being flagged, notified, and prosecuted.  The list of charges includes forgery, tampering with public records, unsworn falsification, and so on.  It seems that for many years, individuals who had driver's license problems created new identities in a variety of manners to obtain alternate driver's licenses, in many instances in names that are similar to their own.  These cases present some challenge for the Commonwealth since there are statute of limitation issues that must be addressed.  The real problem cases are those where the individuals have purchased firearms with the alternate/fake identity.

There is a recent statute that has extended the statute of limitations for these illegal gun purchases.  The same statute  has also created a mandatory minimum five to ten year penalty for second/subsequent offenses.  This means that if someone purchased four guns separately a number of years ago, the Commonwealth has one year from the date of discovery of this unlawful purchase to prosecute.  And the penalty could be three consecutive 5-10 year sentences for these offenses.  These cases get really complicated really fast, but can be successfully defended.

The Commonwealth's burden is to bring in live witnesses to testify to the purchase of the firearms.  Smart defendants keep their mouths shut when approached by State Troopers.  To say anything to Law enforcement would be to incriminate yourself.

See you soon.

Eyewitness = Unreliable

Misidentification is a major factor in wrongful convictions.  While you may believe what you see, you may not have seen what you believe you saw.   The Innocence Project has found that eyewitness misidentifications contributed to over 75% of the more than 220 wrongful convictions in the United States which have been overturned by post-conviction DNA evidence. Traditional eyewitness identifications remain the most commonly used  evidence brought against criminal defendants even though there is proof of the inaccuracy of traditional eyewitness identification procedures. For example,  the eyewitness often assumes that the perpetrator of the crime is one of the people presented in the lineup. This often leads to the selection of a person as the perpetrator despite doubts by the witness.

Additionally, people’s memories can be distorted by many different factors. For example, the conditions in which the alleged perpetrator was viewed.  There is the anecdote of how Abraham Lincoln defended a man by showing that there was not enough light to have accurately viewed the suspect.   The human memory is fallible. Memory is not fixed, it can be influenced and altered. After the crime and throughout the criminal investigation, the witness attempts to piece together what happened. His memory is evidence and must be handled as carefully as the crime scene itself to avoid forever altering it.

Another problem that can arise in eyewitness testimony is the ability to communicate what was seen.  The most common problem in this area involves the witness’ inability to articulate the descriptive facts required to reach adequate investigative conclusions.  Defense counsel must be alert to communication disabilities such as language barriers, insufficient vocabulary, deficient intellectual functioning and communication disorders.  Such eyewitness problems create fertile areas for cross-examination.

The problem is that police investigations can rely on eyewitness descriptions and later identification which are thoroughly inaccurate.  These inaccurate eyewitness identifications can distort police investigations.  The police may stop looking for other suspects once a witness identifies the suspect to detectives, whether or not that person actually committed the crime. This means that the police are distracted from finding the real perpetrator, focusing instead on building the case against an innocent person.

Pennsylvania Expungements

 Since 9/11, many employers are routinely running record checks on current employees and every new candidate for employment.  Many people are not being hired because of some youthful indiscretion that they may have even forgotten about themselves:  e.g:,  retail theft, disorderly conduct, underage drinking, carrying an open container of alcohol, and so on.  Each of the fifty states has its own rules regarding expungements, sealing of records, and pardons.  Pennsylvania is one of the worst states when it comes to getting your record cleared.  We have no provision for the sealing of records.

There are two new developments, one is act 134 of 2008 and the other is House Bill 264 which is gurgling through the legislature.

Until 2008, only non-convictions could be expunged without regard to the severity of the offense or the punishment.  Non-convictions include verdict of not guilty; dismissal; withdrawal of charges, or nolle prosequi; Accelerated Rehabilitative Disposition; or Probation Without Verdict pursuant to the Controlled Substances Act.

The passage of Act 134 now allows for the expungement of a conviction for a Summary offense provided the defendant has been free of arrest or prosecution for five (5) years following the conviction for that offense.  Prior to submitting your petition for expungement for a Summary offense, the following documents must be obtained:

1. A current certified record indicating that the petitioner has not had any arrests, charges or convictions for a minimum of five (5) years since the conviction of the Summary offense for which the expungement is requested.  This record check is performed by the Pennsylvania State Police.  For further information on obtaining this information, please reference their website: How to Obtain a Criminal History Record
2. A certified record indicating that the petitioner has fully paid all fines, costs and restitution for all convictions of record.

For any criminal charge other than a Summary offense that resulted in a conviction, such as a guilty plea, verdict of guilty, or a plea of nolo contendere, an expungement may only be granted by the court if the defendant first receives a pardon from the Governor of Pennsylvania.

House Bill 264, as amended by A02312, further provides for expungements of criminal history records for certain misdemeanor offenses under Title 18 (Crimes and Offenses). If an individual seeks an expungement for a misdemeanor of the third degree, he must be free of arrest or prosecution following final release from confinement or supervision for seven (7) years. If an individual seeks an expungement for a misdemeanor of the second degree, he must be free of arrest or prosecution following final release from confinement or supervision for 10 years.

Expungements of criminal history records for second and third degree misdemeanors shall not apply in the following circumstances:
   -- An offense punishable by imprisonment of more than two years.
   --  Four or more offenses punishable by imprisonment of one or more years
   -- A violation relating to simple assault.
   --  An offense classified as a misdemeanor of the second degree committed when the individual was at least 25 years of age.
   -- A violation relating to indecent assault.
   -- A violation relating to sexual intercourse with an animal.
   -- A violation relating to cruelty to animals.
   --   A violation of any provision relating to firearms and dangerous articles.
   -- Any offense where an individual is required to register under Megan's Law.
   --   A violation relating to Driving after imbibing or utilizing drugs.
   -- A violation relating to offenses involving danger to the person if the victim was a law enforcement officer engaged in the performance of duty and the perpetrator knew the victim was a law enforcement officer at the time of the offense.

Expungements provided for under House bill 264 are at the discretion of the court and the court shall consider the following when determining whether to grant a petition for expungement:
   -- The nature of the offense.
   -- The nature and the disposition of any related charges.
   -- The impact of the offense upon any victims of the offense.
   -- Any reasons the Commonwealth may give for wishing to retain the records.
   -- The petitioner's age, criminal record, and employment history.
   --   The length of time that has elapsed between the arrest and the petition to expunge.
   -- The specific adverse consequences the petitioner may endure should the expungement be denied.

House Bill 264 also increases the number of days in which the court shall give notice to district attorneys of the county where the original charge was filed of any applications for expungement.  Currently, the court has 10 days to give notice and this legislation increases that time frame to 30 days.



If you have any questions give me a call Talk to you later.

Terrorists on trial

US Attorney General Eric Holder announced last week that Khalid Sheikh Mohammed and four others would be charged in Federal Court in New York City for crimes connected to the World Trade Center attack on 9-11.  Predictably, the talking heads from each party spouted their respective positions over the weekend. Holder stated that he has much evidence that has not been released to the public that is independent and untainted by the waterboarding.

To say the least, this process will be fascinating.

Questions:
Will the accused terrorists be permitted to represent themselves?
Will attorneys step forth to represent them pro bono with an eye on grabbing one of the rings in the media circus?
Will the Justice Department have the ability to determine which Federal Judge lands the job of presiding over this case?
Will it be possible to find 12 members to form an impartial jury in New York?
Will the inevitable defense request for a change of venue be granted?
What if one or more of the defendants is acquitted?

I don't have the answers.   Talk to you soon.

Driving After Imbibing (DAI)

It's been five years since Pennsylvania's new DUI (DAI) law went into effect. At the time, it was the most stringent in the nation. The most unique part of the Pennsylvania bill is that it divides offenders into three tiers:
--Those above 0.08% BAC and below 0.10%
--Those above 0.10% BAC and below 0.16%
--Those above 0.16% BAC and/or those with ANY PRESENCE including metabolites of  any street drug or any prescription drug not prescribed to the driver.

The recidivist aspect of the current law is fueled by the tier system. For example, an individual can have a third DUI conviction with a BAC between 0.08% and 0.10% and do only the 10 day mandatory minimum sentence. While a second individual with his third DUI conviction with a metabolite of marijuana in his system will be required to be incarcerated for 1 year under the mandatory minimum rules.

See the grid below (click on grid to enlarge).

Needless to say, this draconian law has given rise to many new defenses created by the defense bar.

Recent case law has been very favorable to motions to suppress any and all physical evidence retrieved by the police on a pretextual challenge.  The police are not allowed to pull drivers over without probable cause.  The Pennsylvania case law on this issue is much more favorable than Federal and/or the law of other states.  For example, an officer can't sit outside a roadside tavern at 2:15 AM choosing to pull over just anyone.  In many cases this would be akin to shooting fish in a barrel.

The Officer would need to articulate in the police paperwork probable cause to stop the operator for a particular traffic offense.

Another area is the two hour rule.

The Two hour rule states that police must must administer the test for BAC within two hours of the operation of the automobile.  Any test outside this two hour period will be invalid.  This would force the Commonwealth to prove DUI the old fashioned way and would put the case by necessity in the lowest tier since there is no available BAC.

This law has real teeth, but there are a number of ways a good defense lawyer can represent you vigorously and keep you out of jail.  Talk to you soon.