Sunday, May 23, 2010

Reform Conference Set For June In DC

Reform of sex offender laws in each state and at the national level will only take place if those harmed by these laws speak up. Yet the sense of shame associated with the mere allegation of sexual misconduct drives many people underground. Chances to network and to learn from others are few and far between.

From June 26 to June 28 there will be a national conference on the reform of sex offender legislation in Washington, D.C.

If you would like further information, contact the conference organizers as listed below. I plant to attend. I hope to see you there.
Phone: 617 497 5273

Saturday, May 22, 2010

We Need A Few More Jack Weinsteins

This past week, an interest group made an assertion I find impossible to believe: Three quarters of those accused of possessing child pornography have actually abused children. Almost every single one of the men I have represented in criminal cases arising from the possession of such images is guilty of far less. Most are simply curiously, a few suffer other, related psychological maladies. In the dozens of sex offense cases I've handled, I have yet to see the equivalent of pornographic reefer madness.

If you have not seen the film Reefer Madness, check it out. It's a 1936 propaganda film about the dangers of smoking marijuana. Marijuana, you see, is the gateway drug of the masses. Start with weed, and end up choking on far more serious drugs. The descent to madness starts with but a single puff. The line between fact and fear is easily blurred.

The line is erased today when it comes to sex offenses. One of the primary culprits blurring that line is the National Center for Missing and Exploited Children. Ernie Allen, president of NCMEC, recently told The New York Times: "Real children are harmed in the production of these images and these same children are harmed every time these images are downloaded and viewed." He presumably gets paid a decent sum for uttering this specious idiocy.

Yes, real children, when they are used to produce a film or photograph, are harmed. The production of child pornography misuses children and should be a crime. But the children are not harmed anew when, in some mildewy basement thousands of miles away, a shamed-faced man sneaks a peak at the images. To suggest otherwise is to live in a fool's paradise.

But opposing sex offenses is a cheap and easy way to score points politically. So every time lawmakers want to feel good about something, they slap a new law, a new restriction, a new mandatory minimum sentence on those accused of sex crimes. Child sex, I have said before and I will repeat again, is the new crack. We want to stamp it out, so we criminalize it. Just when it begins to dawn on folks that the war on drugs really doesn't work, we start a new moral crusade. What is it about our political culture that requires always that there be a villain, some other than we can attack to displace all that makes us uneasy?

Few judges have the courage to call this madness out and to refuse to go along with the charade we call justice. It is not justice to put a man in prison for looking at pictures. It is not justice to lock away a young man for flirting with a police officer pretending to be 14-year-old runway model in heat. Justice requires individual assessments of harm and risk. Most judges, however, approach the task of sentencing like assembly-line workers. Along comes a defendant, the judge looks at the instruction manual produced by lawmakers, and then the judge clips the defendant so that he fits the image the cookie cutter yields. This sort of judging brings the judiciary into disrepute.

That's why I loved this morning's story about Jack B. Weinstein, an 88-year-old federal judge in Brooklyn. Weinstein's been on the bench for 43 years. When he sees a law that is offensive to justice, he refuses to enforce it. Oh, that President Barack Obama were to find a few more Weinsteins to put on the bench. Instead, we get bloodless automatons like Elena Kagan.

Weinstein has refused to impose mandatory minimum sentences when the sentence did not fit the defendant. He has dismissed cases when he thought the Government's charges were a mockery of justice. He takes a robust view of judging, and refuses to do unnecessary harm to those accused.

This makes Weinstein lawless in the eyes of many. A judge is merely to apply the law, not make it. We want lawmakers, after due deliberation and consideration of societal norms, to pass laws. Judges don't have the same fact finding power as lawmakers do. They ought not to overstep and substitute their judgment for those of lawmakers.

I get all that, and in general I support a limited view of the judiciary. But I simply have little confidence in the wisdom of legislators. They too easily succumb to the self-righteous blandishments of groups such as NCMEC. The separation of powers ought not to yield a regime in which blind passion neuters reason.

We used to permit juries to nullify the law when they thought it was wrong. In the early twentieth century, the Supreme Court forbade the practice. We need to rethink that rule. Shouldn't juries have a say in what is done in their name? Judge Weinstein plans to do what trial lawyers regard as the unthinkable in a child pornography trial: He is going to tell the jury what penalty the defendant faces if convicted. That practice almost never occurs. We make infants of jurors all the time, telling them lies and half truths, and then declaring we have done justice. God bless Jack Weinstein for refusing to play charades with the lives of others.

We need more jack Weinsteins on the bench. At least, I think we do. We've a few too many fools in Congress, and far too many crusading for the right thing but using he wrong means.

Monday, May 17, 2010

Comstock's Brave New World?

You could be forgiven the view that the federal government was one of limited powers. That was the framer's intent, after all. Those powers not expressly given to the federal government were retained either by the people or the state. A significant portion of our history has been a sustained struggled about where to draw the line distinguishing state and federal power.

The United States Supreme Court all but ignored that line in today's decision in United States v. Comstock, et al. It did so in a way that terrifies. Call in the therapeutic police writ large.

The case involved the decision of the federal government to detain five prisoners after they had served their criminal sentences. The men were all convicted sex offenders. Because the government believed that the men were mentally ill and still posed a danger to reoffend, they moved to commit them civilly, under a federal statute. Three of the men were convicted of possession of child pornography, one was convictetd of illegal contact with a minor, the fifth was convicted of aggravated sexual assault of a minor.

Under the federal civil commitment statute, the men could be detained after serving their sentences if the Government showed, by clear and convincing evidence, that the men were: 1.0 either previously or attempted to engage in sexually violent conduct or child molestation;" 2.) suffered from a serious mental illness, abnormality or disorder; and, 3.) are sexually dangerous to others or would have serious difficulty in refraining from sexually violent conduct or child molestation. A potential detainee has a right to a hearing, counsel, and the right to put on evidence. But a detainee has no right to a jury. This loss of liberty is regarded as civil rather than criminal in character. Whether a person is to remain detained can be reviewed every six months on demand of the detainee.

The majority decision of the Court, written by Justice Breyer, justifies this sweeping new federal power as little more than business as usual. This power, he writes, is simply a power necessary and proper under Art. I, Section 8 of the federal Constitution.

What shocks is that the Court refuses even to make passing reference to the Ninth Amendment of the Constitution. That amendment, the forgotten child of the federal Constitution, reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Court has never, in more than two hundred years of jurisprudence, paid more than lip service to those rights retained by the people.

This decision explands federal power in significant ways. First, it applies a statute that was no doubt intended to hold violent felons to those accused of mere looking at pictures, the three detainees accused of looking a child pornography. Assuming that this is a disorder, is it really a crime involving sexual violence to a child or child molestation? On this broad application of the statute, the federal government would justified in seeking unlimited detention of anyone who looked at a prohibited image of a child.

Students of constitutional law are familiar with the enumerated powers doctrine. It is said that the federal government is one of limited powers. To the states, the theory goes, belongs the police power, that authority governing the health, education and welfare of a citizenry. What justifies this sweeping rebuke of the state's ability to police its citizenry?

Granting the federal government what amounts to an expanded police power in a climate of moral panic is chilling. The federal government does on occasion prosecute men federal prosecutors believe have been dealt with too leniently by the states. This is no violation of double jeopardy, lawyers know, as different sovereigns can see things differently.

The federal government has customarity served as a counterweight when the states succumb to craziness. In Comstock, the Court became the chief cheerleader for what can easily amount to state-sponsored craziness.

The Tricky Defense Of Entrapment

Does it matter if the young woman enticing you to take a trip between the sheets is really a police officer in disguise? When you are arrested for a sex crime, isn't this really entrapment? After all, if all you've done is talk you haven't really done anything illegal yet, right?

The defense of entrapment is far more limited than most folks realize. To succeed, a person putting on such a defense must show that the prohibited conduct of which they are accused is something they only did because the government induced them to do it. In a culture in which desire is used to market almost everything, can anyone real say that the government made me lust?

I see a lot of entrapment claims just now in the area of Internet solicitation scams. There is an active task force in Connecticut of law enforcement officers engaged in salacious talk in chat rooms. They look for a guy taking his libido for a walk on line, tell him they are curious, and then engage in all manner of salacious talk. Depending on how things progress, the defendant is then charged with solicitation of a minor, if he never leaves the comfort of his own home, or attempted risk of injury to a minor, if he shows up at a prearranged assignation. More than one of these young men has asked me whether they weren't entrapped.

Strictly speaking, the answer is no. One Connecticut case described entrapment in the following terms: "Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of the police officer." State v. Grant, 8 Conn.App. 158, 164 (1986).

Plenty of the language in this definition is helpful to the defense. Internet sting operations are designed solely for the purpose of instituting prosecutions. That's why officers troll pretending to be young teens.

But the defense fails typically for several important reasons. First, the defendant is the one who travels to a destination, whether virtual or real, expecting to make contact with a young person ready, willing and able to perform prohibited acts. No one forces the defendant to log on and inquire about the sexual experience of a perfect stranger.

In addition, and here's the real rub, in a society as saturated with desire as ours can anyone really claim that an amorous assignation is not something they've contemplated? We're wire to procreate. Many societies repress and channel this instinct into forms easy to control: we've set these instincts free. Is it any wonder that transgressions are common?

I'm not blaming Madison Avenue entirely. Nothing about the sale of aftershave justifies the molestation of a kindergartner. But the so-called Romeo and Juliet crimes, where a young woman just below the age of consent yields, are troubling. How many models hit the runway before the age of consent? How is it that we can use desire both to entice and to punish? Uncle Sam in drag as a dominatrix?

I raise these broader cultural issues merely to provide a setting for the fact-bound sorts of inquiries that take place in a courtroom. Relaxed though our general standards may be when it comes to sensuality, the law is savage in its consequences for crossing lines drawn by lawmakers. Don't expect to defend successfully a sex case by blaming society. We're expected to toe these lines, even if they make no sense.

It is sadly common when representing a young man in an Internet sting case for me to say something along the following lines: "If it seemed to good to be true, it probably was." The sad fact remains that many young men, when their hormones are revving and raring, have lost just enough self-control to lose the critical insight necessary to distinguish fact from fiction. This should not make them sex offenders; it merely labels them immature.

Which brings us to the following and final point, and it is a point that I have never tested with a jury. Does a young man playing at sex on the computer really intend to engage in criminal conduct?

On the surface, I suppose, the answer is clearly yes. A person soliciting the attentions of a fourteen-year-old for purposes of sex violates the law. But how many people playing games on line really believe that they are interacting with another person?

The Internet informs, but it also depersonalizes. Read the comments section to an on line newspaper sometime and ask yourself the following: How many of these folks would really have said the nasty, vile and intemperate sorts of things they posted if they were required to post their real name? How many folks would own what they write?

Not many, I suspect. I believe the same to be true about young men playing on line Lothario. On line sex has replaced yesteryear's pinup, only the sticky fingers remain the same.

Young men ought not to be headed to prison for flirting with an avatar. Something other than vagrant desire and fantasy unbound should be required to make out a crime. The law as it is now applied makes no effort to determine whether the defendant in solicitation cases actually believes that his lustful interlocutor is really a child, or whether the defendant actually intended to do more than dream about an encounter.

Under current law, you play on line at your risk, and I advise against it for both moral and legal reasons. But I still think the law is wrong. I've seen young men guilty of no more than taking Madison Avenue a little too seriously go to prison. It's madness.

Sunday, May 16, 2010

Child Sex: The New Crack?

Those of us who earn our living on the front lines of the criminal justice system are often too shell-shocked to recognize larger trends. But when things go beyond a mere trend, and take the form and shape of a tsunami, everyone notices. So I write today about allegations of sexual misconduct with minors, the latest tidal wave to inundate the courts. It is the new crack cocaine of the criminal justice system.

There was a time when it seemed as if every other call for representation was from some soul caught within the web of a federal indictment for conspiring to sell crack cocaine. Here's how the game was played: The feds would target a suspected dealer. They'd watch him, record his phone conversations, and then, after several weeks, sweep in and arrest every person who as much as touched a rock of crack. Those at the periphery of the action were expected to plead guilty and get favorable terms in exchange for fingering those at the center of the conspiracy.

These cases became an art form, with predictable acts, plots and characters. (Client: "We never talked about the coke on the phone." Lawyer: "Yes, I know you talked about shrimp. But tell me, what have you to corroborate that you were really in the business of selling seafood?") Once you've seen a couple dozen of these, you've pretty well seen them all.

Today new melodramas are unfolding. They all involve child sex claims. It seems that two of every three calls we get now comes from someone accused of either looking at child pornography on line, enticing a purported minor on line to have sex, or groping a niece or daughter of a friend. Law enforcement has got its game down pretty well now, so expect more and more of these cases to be brought until, for reasons as yet unforeseen, some new fashions sweeps lawmen off their feet.

I'm not the only lawyer to observe this trend. I live in a tiny jurisdiction, and cover courthouses throughout my state. Lawyers gossip about what they are doing. Many lawyers are stunned by the sudden volume in these cases. Sex, I say, is the new crack.

I doubt seriously that some new wave of lechery has overtaken our society. In terms of the actual contact between adults and minors, I suspect things are pretty much the way they have always been. Sometimes the wrong things go bump in the night. We no longer overlook these transgressions: Today we seek long periods of incarceration in the effort to banish untoward desire.

But what has changed in the ubiquity of images on the Internet. I represent plenty of young men who took their libido for a walk on line. Some of them got curious about things they might never try. They looked at pictures of forbidden acts. Now the state and federal government want them to go to prison. It seems like a waste of life and human potential.

Other young men dabble at sex on line. The forms this lust takes is sadly common. If I hear about another guy in his twenties promising an undercover cop posing as a 14-year-old girl that he will teach her to give oral sex like a porn star, I'll sigh a deep groan of despair. I fear that Dante's vision of Hell is far more interesting that the warp and woof of our contemporary sins. Lust is ugly; we bend in only so many grotesque ways.

But here is what I worry about: As law enforcement perfects the craft of prosecuting these cases the standard for when to prosecute will get lower and lower. I now represent a young man accused of possessing four images of child pornography on his computer. This calls for prison. If there were only three images, he'd go free. So we fight now about whether he actually looked at all four images, and whether that matters. Were lawmakers thinking when they passed laws calling for mandatory prison time?

Or consider a new statute in Connecticut, aggravated sexual assault in the first degree. Touch two or more children under the age of 13 in an improper manner, and you look a twenty-five year mandatory sentence dead in the eye. That's the same penalty as required for manslaughter with a firearm. The real import of a statute like this is to frighten defendants into a plea: anything to avoid the risk of trial, whether they are guilty or not.

We're in the grip of a strange moral panic. The end does not seem yet to be in sight.

It is far too easy for lawmakers to pass legislation requiring draconian sentences from within the antiseptic chambers of a legislative assembly. Who, after all, wants to appear to go easy on those who abuse children? But not all forms of abuse are identical, and neither are all defendants. Sometimes a mistake is just a mistake and the harm than comes of making it a crime dwarfs all justice. I wish that lawmakers were required to go to court to see their handiwork.

I wish that lawmakers could see that making child sex allegations the new crack cocaine of the criminal code is a manifest tragedy. I wish, finally, that each lawmaker were required to spend a few months behind bars to get a sense of what it is to live isolated and afraid. Is it to much to ask those who make the product to test drive what they are producing?

Friday, May 14, 2010

A Miscarriage of Justice

When the criminal justice system fails, it is, perhaps, normal to expect someone to take responsibility for the failure. The rhetoric of prosecution is steeped in the ethic of personal responsibility. Horrible things are done to people in the name of holding them accountable for what they have done.

Who will take responsibility for the failure in the case of State v. Pentland, decided just this past week by the Connecticut Supreme Court?

I wrote about the case before on these pages, but I did not use the name of the defendant. The case is mine. I wrote here and in a weekly legal newspaper in my home state of Connecticut to chide the state Supreme Court, which sat on a decision in the matter for 18 months. I wrote reminding the court that justice delayed is justice denied. The very next week, the Court acted, prompted to act, finally, I suppose, by something like shame. The court should feel shame over its decision. Perhaps they why it sat on it for so long. Coming home with a failing grade on a report card is never pleasant.

Robert Pentland was represented by Mickey Sherman at the time of trial. He faced charges arising from the state's claim that he had fondled a child. At the time of trial, Mickey scored a coup. Mr. Pentland pleaded under the Alford doctrine to two misdemeanors, was given a suspended sentence and was told by his lawyer and the judge that he would not have to register as a sex offender. (The state merely stood by and said nothing, a form of adoption of omission.) The client had every reason to believe he would face a future unclouded by the manifest cruelty and absurdity of the new sex offender regime: humiliating "treatment" by half-ass probation officers bent on humiliation, and, perhaps titillation; registration as an offender, a felony conviction; imprisonment.

But storm clouds were on the horizon. Mickey should have seen them. Someone should have warned the client. There was trouble written all over this plea.

First and foremost, the courts typically do not accept an Alford plea in a sex case. Indeed, state statutes make clear than an Alford plea is no bar to treatment as a sex offender.

Plea bargaining is the work of the devil, and it is at the heart of what lawyers do. Every case must be prepared for trial. But a lawyer's job is to provide clients with choices at every step of the proceedings. Many clients are ill suited to face the risk of trial. Many choose to work out a deal of some sort. Even innocent men, like Mr. Pentland, can choose to avoid the risk of conviction by taking a deal. Mr. Pentland thought he had scored a hollow win of sorts with his plea: just a brief period of probation. Indeed, he never admitted to committing a crime at all: An Alford plea permits a client to enter a plea merely by acknowledging that the state's evidence, if believed by a jury, could carry consequences far worse than those for which he bargained.

Imagine Mr. Pentland's surprise when the state claimed he violated his probation by not registering as a sex offender. Didn't his lawyer and the judge tell him he did not have to register? Didn't the state stand by silently as this information was relayed to him? Wasn't this a condition of the plea he entered?

Mr. Pentland litigated this issue while on probation. He incurred the expense of new counsel, one of them being me. When the trial court told him simply, "Oops, I guess I was wrong, register or go to prison," Mr. Pentland registered. I took an appeal, and off we went to the state's Supreme Court.

The Court's ruling is nothing if not cynical. Mr. Pentland's remedy, the court held, was to seek to vacate his plea. But he must register. So sorry for the fact that your position in the world changed as a result of the plea; so sorry that you relied on a deal approved by a judge of the Superior Court; so sorry that both your lawyer, the state and the court failed you. The court refused to enforce the terms of the plea bargain Mr. Pentland struck.

The court, in essence, failed to take responsibility for a miscarriage of justice. Instead, it transferred responsibility back to the client.

What shocks about the decision is its souless logic. "Go ahead and move to vacate your plea," it said. Of course, that carries with it the risk of a new trial, a risk the client bargained to avoid. Had the plea been vacated, all the effort that he had put into complying with probation would be for nought. Only the State can rape you and then send a bill for its services.

I had hoped for justice in this case. I had hoped that the Court will say what is said on used car lots all the time: a deal is a deal. But the implied warranty of good faith and fair dealing is more than we can expect at the time of a plea, apparently.

Mr. Pentland is now discharged from probation. Customarily, that means that he is no longer in custody and the remedy of a habeas corpus petition is foreclosed. But given the United States Supreme Court's recent ruling about the immigration consequences of a plea as a material factor in disposition, perhaps Mr. Pentland should turn to the federal courts for habeas relief. The Connecticut courts have mocked him. Perhaps the federal courts will recognize that being placed on the sex offender registry is the equivalent of internal exile, and that this man was denied justice by not just the trial court, but the state Supreme Court. This is no mere incidental consequence to a plea.

State v. Pentland is a miscarriage of justice. The pity of it all is that the Connecticut Supreme Court. The case proves that when it comes to sex offenses, the defendant gets screwed.

Friday, May 7, 2010

Making Money Ruining Lives

The state's make money registering the dead on sex offender registries? It's true. Calling people names is a big money business, paid for by We the People.

Thursday, May 6, 2010

Ordinary Heroes

Here is a shot of Illinois members of RSOL who recently travelled to Springfield to lobby for more humane laws. These folks are heroes. Now, if they would only identify themselves with comments.

You can read about the trip here. This is a good example of what should be taking place in each state. Is your state doing enough?

Tuesday, May 4, 2010

A Sobering Rejection

On the theory that a lawyer is only as good as his last verdict, I am not very good at all. A jury returned a verdict against my client this afternoon, convicting him of two counts relating to the sexual abuse of a child. That the jury acquitted on two related counts is no consolation. My client faces fives years behind bars at a minimum. He insists he is innocent.

A hard truth of criminal defense work is that we lawyers are not witnesses to the events that bring a case to trial. We are advocates. Hence, when a jury returns a verdict against our client it is a very personal rejection. The jury has listened to, and then rejected, the argument we made on behalf of a client.

But some cases cause me to scratch my head and wonder more than others. In the verdict returned today, my client, a man in his forties, was accused by an eight-year-old girl of having placed his hand down her pants and "tickled" her. When he was done, she claimed he smelled his fingers.

At least that was one version of her testimony. At trial, the girl, now ten, claimed the tickling took place in a different location, and that events wholly at odds with her prior statements had taken place. We were shocked by the difference in recollection and argued that all of her testimoney was unreliable. The state was reduced to arguing that all the jury had to do was believe any part of it, begging for an incoherent conviction. The jury forgave the inconsistencies, and did not credit my client's denial at all.

The terror of the case is that there were no other witnesses, no corroboration of the girl's claims. Nothing. Just the word of an eight-year-old living in a house characterized by the turmoil of a bitter divorce. This and this alone is sufficient to convict.

I tried a good case. I know I did. And there is nothing more I could have done for my client. But still the sense of failure weighs heavily on me. I look at this case and wonder whether I would ever consent to babysit an eight-year-old child, or otherwise be left alone with a child. And the answer is simple: I would want a witness. It is too easy for a child to see Santa one moment and wicked uncle Ernie the next. Jurors apparently feel obliged to take any utterance from the mouth of a babe and rely upon it.

So I failed my client. He was convicted. He proclaims still his innocence. But to six jurors and now a world of strangers who will never know him, he is a child molester. But I wonder, really, whether it should be so simple to reach these devastating judgments on such flimsy evidence. I wonder whether the truth was not crucified in this trial. I wonder, and I retreat into a place of silent recrimination as I prepare for the next such trial.

I am free today. My client is out on bond. The state can crow over a conviction. But somehow this seems less justice than casting darts. When the lone word of a child, inconsistent and uncorroborated in any respect is sufficient to convict, we are all potential victims.
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