As a former Assistant State’s Attorney and current Aggressive Criminal Defense Attorney with decades of experience, I have handled scores of cases involving the illegal Possession and Distribution of Child Pornography. These cases can be charged in state court or in federal court where the penalties are far more severe. For this reason, I always team up with my partner Andrew White to work these cases as Andy is a former Federal Prosecutor who headed up the sex offense unit for 7 years. He has been very successful over the years at convincing his former colleagues to defer prosecution in these matters to the state courts. Even in State court, however, These are serious crimes that carry the possibility of a felony conviction and extended prison sentences. It may come as a surprise to some to learn that a even a conviction for Misdemeanor Possession of Child Pornography requires mandatory registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Pornography requires registration as a Tier II Sex Offender for 25 years.
For many people the prospect of having to register as a Sex Offender can be even more daunting than going to prison. Most people are aware of the terrible society limitations and stigma such a designation can carry including but not limited to: Limitations on where one can live, prohibition from even stepping on the property of their children’s schools, notification of neighbors by the police and inclusion on web sites that includes their pictures and exact locations of their homes. I recently represented a 21 year old man who found himself facing all of these daunting consequences. Here are the facts – as always in these types of cases, I have changed or left out enough identifying facts to protect my client’s anonymity but the facts of the case are completely accurate:
My client is a young man who has no prior criminal or juvenile record. He grew up in a middle class family in the Washington DC suburbs. He graduated from high school had been attending community college part time for the last three years earning most of the credits needed to be awarded an associate degree . His plan is to transfer to a four year university to complete his studies. He was still living at home to save money and was working in a restaurant to help pay for his tuition and living expenses. Basically, he was a normal young guy living a normal life – at least until 5:00 AM one morning last summer.
It was then that he and his family were awakened by extremely loud banging on the door of their home accompanied by shouts of “Police, we have a search warrant”. Surprisingly, the police in this instance exercised considerable restraint and allowed a few moments for my client’s father to get to the door and let them in. I have had many cases in which they were not so patient and knocked the door down before the resident could open it.
Once inside the police read the warrant to my client, his parents and his younger siblings, all five of whom were by then seated in the living room. They also read them their Miranda rights and each indicated that they understood. The police informed them that they had traced a computer through it’s IP address to this location that had been downloading and, according to the police, distributing child pornography. They asked the residents to show them where all of their computers were as well as any external data storage devices.
It was at this point that my client spoke up and admitted that he had been the one who was downloading child pornography but he vehemently denied that he had ever distributed the material. He offered to show the officers where his computer was and provide his password so that they could access the data stored on it. He asked the police if he cooperated if they would agree not to confiscate his parents and sibling’s machines. The detectives refused this request, indicating that they had to at least search each computer that was on the premises but they promised to quickly return the computers that did not contain any illegal materiel if they would all provide their passwords. They all agreed.
My client escorted the police to his room and showed them his lap top. He also had a half dozen external storage devices but claimed that only one thumb drive contained any of the material at issue. He provided his password and the detectives quickly confirmed that it was the computer’s IP address matched the one they were looking for. They then collected the the other computers in the house and conducted a thorough search of the premises to insure that they had been provided all of the machines in the house. This whole process took several hours at which point they left without arresting my client to his considerable astonishment.
The next day he borrowed a friend’s computer to research criminal defense attorneys who had experience handling these matters and ended up in my office that afternoon. He retained me that same day and I immediately contacted the police to advise them that my law firm had been retained in the case and requested that if they decided to charge him, that they do so with a criminal summons instead of a warrant. They refused to agree to that condition but said they would consider doing so depending upon what they found and in any event would contact me to arrange his surrender if they chose to have a warrant issued.
I spoke to my client about the case and he admitted to me that he had in fact downloaded child pornography. He, like most of the men I have represented in these cases, indicated that he started looking exclusively at adult pornography but inadvertently came across child pornography that was contained in large files that he downloaded using Bittorent and similar search engines. Eventually, he acknowledged that he did begin searching for and downloading child pornography.
He explained that he NEVER distributed the material to anyone and didn’t understand why the police claimed that he had. I explained to him that the police had most likely accessed his files when he was downloading material because you have to make your files available during the download process. He, of course understood this but was adamant that he immediately turned this feature off upon completion of a download. I explained to him that I completely agree that he did not intentionally distribute this material to anyone and was confident that he would be found not guilty of doing so in trial. I did caution him, however, that prosecutors in these cases sometimes use the threat of a federal indictment, which would subject the defendant to draconian mandatory penalties, to extract a guilty plea to the felony count in State court.
I advised him that based upon what he was telling me, that I believed that he would in fact be charged. I advised him that given his cooperation with the police, including his Mirandized confession, it would be difficult to defend the misdemeanor possession counts unless the warrants that the police secured contained a Constitutional defect. I explained that while this is rare, we had successfully attacked warrants in similar cases. I advised him that while I was trying to determine a viable strategy to attack the warrant that he needed to immediately get a psycho sexual evaluation to help convince the court that he was not a predator and that he did not pose a danger to the community. I referred him to one of the top doctors in the field whom I have use in many of these cases.
Eventually, the State did in fact indict him on 3 counts of Distribution of Child Pornography for the two images and one video that the detectives had downloaded from his files, and 50 counts of Possession of Child Pornography although he actually had in excess of 300 images and videos on his computer and the thumb drive. We unfortunately determined that the warrants had in fact been lawfully issued, so we had to accept the fact that there simply was no viable defense to the misdemeanor possession counts. In other words, if we could convince the State to drop the felony counts, this case had to be resolved by negotiation rather than trial. If not, we were definitely headed to trial.
To make a very long story short, we first convinced the US Attorney’s Office to allow this case to remain in state court – a huge victory for the client. Next we convinced the prosecutor that she should not proceed with the felony counts as the client lacked intent and was, after all, just 21 years old with no record. We advised her that he would never plead to the felony and that we would aggressively defend him in court, if she insisted on pursuing the felony. She ultimately relented and agreed to offer 6 counts of Possession of Child Pornography. She agreed to drop the other 44 counts of possession as well as the 3 felony counts. Finally we convinced the court that jail was not appropriate and neither was making him register as a sex offender. The court granted probation before judgment so he didn’t have to register. This disposition will also allow him to have this matter expunged from his record in three years. Given that there was no defense to the misdemeanor charge, this outcome was the best result we could have achieved for the client and is one that will allow him to put this behind him some day.