DEFENDING CHILD PORNOGRAPHY AND SOLICITATION OF SEX WITH CHILDREN.

By Jon Katz

“Why do you want to defend such a case?” asked one of the most amazing and effective trial consultants/psychological professionals, whom I visited for ideas on defending a man caught distributing multiple images of prepubescent children engaged in the most explicit of sexual activities. He seemed skeptical at my mentioning First Amendment rights and my willingness to defend anybody alleged with any crime in a criminal justice system so lopsided against criminal defendants. He perhaps would have been more understanding about my defending a mass murderer, or perhaps he was urging me on to assure I was in my own comfort zone for defending this man, so that I could shrink the discomfort felt by the judge, prosecutor and jury in the case.

As with all my cases that I discuss with this trial consultant, the talk ultimately included a focus on how I was feeling about this case, and how it was affecting me. He asked if I liked my client. I said I did, and he asked why. I said he does not cause me problems. “Is that what like is about?” asked the consultant. Of course not. I was so wrapped up at the time about what I was hoping to speak about —- including the heartless-seeming prosecutor (or was that instead the disgusted prosecutor?), the horrendous child pornography images, and the potential jurors in this case, that I had not switched gears enough to express why I liked my client. Absent this case, he was a decent person who was abused in childhood, and ended up stuck in the mentality of a child, but was a sexual being in an adult’s body with his wiring all messed up, still identifying sexually with children.

Of course the trial consultant pushed me to articulate why I liked my client, because no juror, judge or prosecutor was going to like him any more than I did.

What is easier? Looking at gruesome photos of corpses when defending those accused of murder or the most explicit of photos of sex between adults and prepubescent children as young as one year old? Which type of case is going to push jurors’ hot buttons more? Child pornography and solicitation of sex with minors victimizes among society’s most vulnerable and innocent members. That is a huge hurdle in dealing with jurors, judges and prosecutors.

Defending such cases, among other things, requires humanizing the clients who often will initially be perceived as monsters by judges, jurors and prosecutors; handling forensic evidence issues; obtaining pretrial release; and sometimes dealing with much harsher sentencing schemes at the federal level than the state level. This article focuses on humanizing the client and dealing with forensic issues.

HUMANIZING THE CLIENT

Repeatedly, I have turned to forensic psychologist D________, of Charlottesville, Virginia —- who established Virginia’s sex offender probation supervision program, which helps underline his lack of bias for the defense —  to evaluate my clients charged with child pornography and solicitation for sex with minors, to set up a treatment plan, to render a prognosis, and to testify at sentencing.

Dr. D’s____ first evaluation takes around three hours, probing into the defendant’s background and life experience, determining how well the person copes with daily life, and determining the primary and secondary age, gender, and racial group that sexually interests the defendant.

Those lawyers who have led relatively trauma-free lives may be surprised at how rampant is the physical, sexual, and psychological abuse that so many people suffer in society. As confirmed by Dr. D________, those who commit child pornography crimes and solicit minors for sex often suffered abuse as children, and are stunted with the mentality of children, but as sexual beings in adults’ bodies, still identifying sexually with children.

Those adults who solicit minors for sex often are playing out fantasies that they do not plan to consummate, but often get caught in police stings when they arrive to meet their “date” only to learn that the date is a cop.

Those who view and trade in child pornography might sometimes start with adult erotic images. However, as Dr. D______ says, sex is not a spectator sport, so many become bored with adult erotic images, and veer towards such risky images as child pornography.

With the case of my client who distributed prepubescent child pornography —- to an undercover cop —- I spoke also with an excellent criminal defense colleague who suggested such themes as “Those who live in glass houses should cast no stones,” where some indulge in too much chocolate and others in child pornography. Comparing the overeating of chocolate to distributing prepubescent child pornography is quite a leap. However, it does help humanize the client.

Of course, the more confident the lawyer is in his or her trial posture, the better s/he can negotiate the case. We settled this child pornography distribution case for one count of child pornography distribution, avoiding the risk of a multiple count conviction at trial. We drew the right judge, and accomplished close to a time-served sentence for this client who had barely a parking ticket in his criminal history.

A key question at sentencing is why the defendant did not isolate his urges to fantasy rather than action, and to what will stop him from repeating such behavior. Psychological treatment is an important component, from an empathetic rather than paternalistic counselor. However, pretrial incarceration makes treatment very expensive and eliminates group therapy, which often is recommended. It can be hard enough to find a quality empathetic psychological professional ready to provide such counseling outside the jail, and all the more difficult to find for counseling inside the jail.

ANALYZING AND DISSECTING THE FORENSIC EVIDENCE

Internet and computer technology often are involved in child pornography defense and defense of charges of soliciting sex with minors.

The defense ideally will have a war chest to pay for a top-notch computer forensics expert who will not let retching over the evidence color his or her ability to do an effective job; will not report to the police any unlawful images that the police may have missed; and will be willing to view child pornography evidence at his or her own lab —- rather than at the police location —- when the law or a court order permits taking the images offsite from the police office.

It is essential to pursue the foregoing inquiries in depth with computer forensic experts. Some computer forensics professionals who are great with other computer forensics work -— for instance with proving infidelity in divorce actions —- are not suited for the emotional toll that child pornography cases can take, or who just find such work too repugnant. However, when the almighty dollar is available to them, be careful about forensic experts who will require a long litany of questions before they admit to their discomfort.

My preferred computer forensics expert is David Greetham in Houston, Texas, who has an allied lab available in the Washington, D.C., area. His stomach is cast iron for such work, and he seems to delight in the importance of keeping the police forensics experts honest and to show where they have made mistakes. David is ready to testify and report on computer programs that enable others to hijack one’s computer from offsite, for instance with trojan horses, thus placing child pornography on the computers of innocent criminal defendants. He is able to talk about the ease of access that others have to the computer, thus raising reasonable doubt about knowledge, dominion and control over the images. He knows that when police turn a suspect’s computer on and off, they have compromised the hard drive for forensic analysis, and that a review of hash values helps determine whether police have in fact provided the defense with a precise duplicate of the seized hard drive.

Many computer users do not know that their every move online can be tracked through their unique Internet Protocol (“IP”) address that relates to their Internet account; their Internet service providers archive their online activity; and attempting to delete pornographic images does not automatically erase the evidence of the files’ having previously been on the computer and then deleted. Anonymity is a false expectation that countless Internet users are lulled into.

For trial purposes, and negotiation and sentencing purposes, it can be helpful to review the search phrases used on the computer, to determine the extent to which the suspect was interested in images beyond child pornography. Similarly, it can be helpful to determine the extent to which the alleged child pornography images are only thumbnails that have not been clicked to obtain enlargements, because mere thumbnails may support that the computer user did not intentionally place the images on the computer hard drive.

For negotiation and sentencing purposes, it can become important for the computer forensics expert to provide estimated percentages of non-pornographic versus pornographic images on the hard drive, and adult versus child pornographic images. This can help show that child pornography was but one type of image that interested the defendant.

DO THE POST-PUBESCENT IMAGES ACTUALLY DEPICT MINORS?

When dealing with alleged post-pubescent child pornography, it is critical to remember that in 2002, the Supreme Court ruled that images of adults posing as minors is not criminal, and that the bright line is whether the image is of a minor or not. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

One key when dealing with alleged post-pubescent child pornography is to challenge whether the prosecution has provided the original medium of the images. For instance, converting film to a VHS or DVD format can create distortion that makes the replacement medium unreliable or less reliable for determining whether the images depict minors or not. The defense can move to exclude all but the best evidence, which is the original format of the image.

A jackpot sometimes arises by tracking down the person allegedly appearing in a child pornography image, to show that the actor was actually an adult at the time of production.

Sometimes dueling pediatricians on both sides of the case will argue about the factors that point to the actor’s having been an adult or not at production time. Even when the jury has trouble deciding which pediatrician to believe, that supports a finding of reasonable doubt.

In 2006, federal trial judge Nancy Gertner placed substantial limits on the presentation of expert testimony about whether actual children in fact appeared in alleged child pornography images — and placed limitations on presenting the images themselves — by requiring the prosecution to show that the images are of real people in the first place. U.S. v. Frabizio, 445 F.Supp.2d 152 (D.Mass. 2006).

Frabizio shows how the technology now exists to make virtual images look staggeringly like real people:

“A significant body of literature also indicates that digitally manufactured images may be confused with real photographs. Faculty in the Department of Computer Science at Dartmouth College, for example, have noted ‘photorealistic images can be created that are nearly impossible to differentiate from photographic images.’ S. Lyu and H. Farid, ‘How Realistic is Photorealistic?’ 53(2) IEEE Transactions on Signal Processing (2005) ¦ Other articles suggest that such virtual image creation can be achieved using current technology and that even ‘experts cannot know whether a digital image is real or virtual.’ Timothy J. Perla, Attempting to End the Cycle of Virtual Pornography Prohibitions, 83 B.U. L. Rev. 1209, 1216 (2003). See also, A.C. Popescu  and H. Farid, ‘Exposing Digital Forgeries by Detecting Traces of Re-Sampling,’ 53(2)IEEE Transactions on Signal Processing (2005) ¦ (‘”[D]igital images can be easily manipulated and altered. Digital forgeries, often leaving no visual clues of having been tampered with, can be indistinguishable from authentic photographs”‘); Caught On Camera, NEW SCIENTIST, Sept. 6, 2003 at 5 (‘Warnings about the potential for faking digital images are not new. But the proliferation of cheap digital cameras and computers, together with programs for altering photos and editing video footage, is turning that potential into reality. Where once a specialist was needed to alter analogue images, even beginners can now create digital fakes good enough to fool discerning experts.’). But see Susan S. Kreston, Defeating the Virtual Defense in Child Pornography Prosecutions, 4 J. High Tech. L. 49, 62 (2004)  (‘Creating realistic images of people . . . continues to be very difficult, with the difference between a real picture and one created by a computer, even using today’s best technology, being discernable to the human eye.’).”

Frabizio, 445 F. Supp. 2d at 157-58.

Frabizio includes the following three URL’s showing excellent examples of manipulated images that look strikingly like real people: “https://forums.cgsociety.org/showthread.php?t=141461; (depicting a nude woman in the fetal position); https://forums.cgsociety.org/t/jennifer-rami-shtainer-3d/951465 (showing a remarkable likeness of actress Jennifer Garner); see also https://forums.cgsociety.org/t/my-love-in-bed-marek-denko-3d/778388.” Frabizio, 445 F. Supp. 2d at 158.

Will prosecutors ever be able to meet their burden to show that alleged child pornography is not manipulated imagery? Frabizio answers: “Whether the images in this case are real or virtual cannot be determined based on mere observation, however, even by a photographic expert. More specialized, computer-based knowledge is required to exclude the possibility that the pictures are wholly virtual.” Frabizio, 445 F. Supp. 2d at 170.

HOW TO GET HOLD OF THE ALLEGED CHILD PORNOGRAPHY IMAGES

Beware of how to handle alleged child pornography images that the prosecution hands over without a court order protecting the criminal defense lawyer and the defendant’s computer forensics expert from prosecution for possessing child pornography. By the same token, do not automatically accept a prosecutor’s refusal to provide the images for review by the defense.

Support for obtaining a duplicate of all the alleged child pornography images for forensic analysis is found in U.S. v. Knellinger. 471 F.Supp.2d 640 (E.D.Va.2007).

In Knellinger, Two technology experts testified that 18 USCS § 3509(m)’s requirement that computer hard drives in child pornography prosecutions generally only be examined at government facilities, would make it too expensive to transport their equipment to a government facility. Criminal defense attorney Louis Sirkin testified that such restrictions would make it harder to find a computer forensics expert for the case.

Although computer forensics experts’ tools today are less bulky and heavy to carry around, it is still less expensive for them to review hard drives at their own labs, in that at the very least they can be running diagnostics on the hard drive as they attend simultaneously to other clients’ work.

The Knellinger trial judge agreed to order that the defense expert — when designated — receive a duplicate of the defendants’ hard drive(s) to examine. Knellinger acknowledged that “the practical reality is that computer experts would not agree” to transport their equipment to government facilities to examine computer hard drives there, as opposed to conducting the analysis at the experts’ offices. Consequently, if a hard drive copy were not provided to the defendant, the defendant “ultimately would be prevented from conducting his analysis at all.”

CONCLUSION

Revulsion is a common reaction to anyone, even criminal defense lawyers, hearing allegations of child pornography possession or distribution, and solicitation of sex with minors. It is essential for the criminal defense lawyer to humanize the client, to reduce the revulsion, and to recognize that the defense holds at least some of the key cards in such cases, and sometimes the winning cards.