As an Aggressive Criminal Attorney and Former Baltimore County Prosecutor, I have defended dozens if not hundreds of individuals who have been charged with Possession and/or Distribution of Child Pornography. I have been practicing exclusively criminal defense for the last 17 years since leaving the Baltimore County State’s Attorney’s Office and handle these types of cases all over the State. There is simply no question that they are prosecuted more aggressively in Baltimore County than in most any other jurisdiction. For this reason, it is imperative to find a full time criminal attorney who has substantial experience handling Child Pornography cases, in Baltimore County.
I recently defended an individual in Baltimore County that is a good illustration of how aggressively these cases are prosecuted there. Here are the facts:
My client is a 50 year old man. He has never been married, has no children and lives by himself in a small house on the property of one of his relatives. He has a good work history as a warehouse worker and has no criminal record of any kind. In other words, he was living a fairly normal life and nobody in his family had any idea that he was downloading child pornography.
As is typically the case with individual like him, he did not start out looking for child porn. Instead he was searching the internet for legal adult porn when he came across some of the illegal material. He began looking at this material and became more comfortable and curious about it. Although he certainly understood possessing child pornography was illegal, he really didn’t feel like he was doing anything wrong by just looking at it in the privacy of his home. He never sent or shared the material with any other people. He knew that he had never and would never touch a child and because he never paid for the material, he did not feel like he was supporting the industry or creating a market for the material. He truly had no idea just how serious of trouble he could get into by downloading child pornography, particularly in Baltimore County.
He found out just how serious it was viewed when a half a dozen police detectives and officers showed up at his house with a search warrant. He was completely honest and cooperative with the police. There seemed to be no reason not to as they already seemed to know everything anyway. He showed them to his computer but correctly advised them that he had never used it to download an Child Pornography. Instead he truthfully advised the police that he had only used his cell phone to do so. Needless to say the police did not take his word for this and searched his computer with negative results. They confirmed that he was in fact telling the truth by tracing the one IP address that was used in this case back to his cell phone.
My client then gave a full recorded and written confession after waiving his Miranda rights. Obviously, the case against him was quite strong. We meticulously reviewed the evidence to include the search warrant and determined that he in fact had no defense so we shifted our defense efforts into damage control mode. At this point, the most important thing to do was to try to keep the federal prosecutors out of the case. The U.S. Attorney’s Office under Rod Rosenstein has prioritized these cases during his tenure. They aggressively remove these cases from State jurisdiction and routinely seek harsh mandatory sentences. In the federal system, mere possession or in federal lexicon “receipt” of child pornography carries a mandatory 5 years sentence, distribution carries a mandatory 10 year sentence and manufacturing carries 15 years. As many are also aware, there is no parole in the federal system.
Fortunately for this client, my law partner Andrew White is a former AUSA who was the division chief of the sex crimes unit in the Baltimore office for many years. He is intimately familiar with their charging standards and procedures as well as the personnel who make the decisions. He has in many cases convinced the U.S. Attorney’s Office to stay out of cases that they may well have taken were it not for his skilled advocacy in this area and he was successful in this case as well.
In many other jurisdictions where I have represented people, keeping the federal authorities out of the case would pretty much be the end of the real danger. Most of these cases plead out to simple possession and do not result in jail time or sexual offender registration with proper representation. But this is not the case in Baltimore County. I have very long and deep ties to this office where I once worked and the sex prosecutors in particular are people that I have very good relationships with. In spite of these relationships, the ASA on the case told me that if we did not agree a distribution count, that he would have no choice but to go back to the feds and ask that they revisit their decision and consider federally indicting my client.
The State’s theory for distribution is a weak one that argues that because the detectives were able to go into his files while he was downloading files from someone else, he is therefore guilty of distribution. Anyone that has ever used a file sharing program such as BitTorrent knows that you must make your files available to download from someone else. The detectives took advantage of this feature and downloaded material from his machine while he was downloading from someone else. So in this case there was clearly no affirmative act of distribution of child pornography. But this is not an argument that my client wanted to make to a federal jury with a mandatory 10 year prison term hanging in the balance.
Ultimately, we were able to negotiate a plea that allowed us to argue for local detention center time only. The client received six months with work release and was able to keep his job. Not a perfect result but given the overwhelming evidence against him and the mandatory 10 year prison term that would have occurred if he had been prosecuted in federal court, it was a result that the client was more than satisfied with. There is an old saying that you can’t let “the perfect be the enemy of the good” and this was clearly one of those situations.