Author Archives: tsclaw2209
Post-Indictment Strategy
Use evaluation to show low risk or recidivism
If your client is found guilty either through plea or trial, it is important to have the client evaluated for a risk assessment. First of all, the Court will likely order it anyway so it is helpful to have it down ahead of time. Furthermore, it may help lower the sentence and if the client will be incarcerated, it may help them be released faster. This is because whenever a person is convicted of a child pornography offense, the concern from the State and the Court is that the defendant may act on his interests and harm a child at some point. It needs to be shown that there is no risk of recidivism and that this was a one time issue. Thus, even if the defendant is to be sentenced to the lowest possible term, it is still good practice. I have seen defendants (not mine) max out on a minimal term because parole thought they would present a danger to the public. A simple evaluation before sentencing could have prevented that.
Do not let the State double count
The State may try to argue that there are numerous aggravating factors even if the defendant has no criminal record. They may point to the number of files, the descriptions of the files and the ages of the children in the files. In support of their argument, they may cite to U.S. v. Ferber, 458 U.S. 747, 758 (1982) for the proposition that children are re-victimized throughout the extended time that the defendant viewed and possessed the child pornography. They may also argue that there is a significant physical and emotional harm caused to children by child pornography. In support, they may cite to U.S. v. Williams, 128 S.Ct. 1830, 1844 (2008) (explaining that child pornography constitutes a permanent record of the children’s degradation) as well as State v. A.B., 328 N.J. Super. 96, 99 (Law Div. 2000).
Of course, this is all double counting. To counter this, defense attorneys should argue that an element of the offense may not be cited as an aggravating factor to increase punishment. State v. Yarbough, 100 N.J. 627, 633 (1985). Clearly, the legislature had all of the above issues in mind and if it wanted to set specific prison terms, it would have. It didn’t so therefore, the State cannot double count them now. However, defense attorneys should be prepared to make a very strong argument when faced with a very serious child pornography collector as the State may have good arguments to overcome the issue of double counting.
What the State may argue at sentencing
Defense attorneys representing a client convicted of a child pornography charge must be prepared for the State to file a hard hitting brief with the Court absent a solid plea offer making same pointless. In this brief, the State will ask for the maximum penalties. The attorney should anticipate this and ask the Court for a briefing schedule. This will prevent the State from filing their brief at the last minute giving you no time to respond. Since most judges make up their mind about sentencing before the sentencing date, you will want to have all of your argument in well ahead of time.
The State will make a number of arguments, most of which will be double counting. For more on that issue, please see the post on double counting.
The State may also cite to the Federal Sentencing Guidelines and argue that if this was a Federal case, the defendant would receive a prison term within a range of a certain amount of months. Specifically, the State may argue that the defendant would have received an increase of 10 levels due to various factors including: possessing material involving a prepubescent minor, an increase for possessing material portraying sadistic or masochistic conduct, use of a computer as part of the offense and for having over ten images of child pornography. This has to be one of the worst arguments I have ever seen a prosecutor make and I am not aware of any case that would ever permit this. Don’t get bogged down with this argument if you are unfamiliar with Federal sentencing. Just argue that this is nonsense and swat it away like the garbage it is.
Finally, the State may argue that State v. Rosenberg, 207 N.J. Super 350, 358 (Law Div. 1985) suggests that white collar criminals should be subject to a period of incarceration because that is the only way that the sentence will have some sting and hurt. The first way to respond to this of course is to distinguish the case as Rosenberg did not involve a child pornography charge. Secondly, its been over 25 years and it is just a law division case. Surely, if the Appellate Division or Supreme Court wanted to adopt such a holding, it would and it hasn’t. Thus, its not binding and I think the entire case is taken out of context. White collar crime or not, each sentence must be based upon the aggravating and mitigating factors found by the sentencing court. The legislature could have imposed mandatory prison time for possession of child pornography and it hasn’t. It could have included a specific parole disqualifier for distribution of child pornography and it hasn’t done so either. Thus, the State can’t create one for them.
Summation
Everyone has their own style of how to practice and there are countless articles, books, etc. on how to give a proper summation. Truth is that there is just no one way. Who knows if the summation is what worked or not? Maybe the case was won or lost before you even gave your opening? There is just no way to really know unless you are in one of those jurisdictions where someone gets to speak to the jury after the trial. In my opinion, your summation should be drafted well in advance of you giving your opening. I know this is foreign for some attorneys but it has served me well. Of course, the summation will be edited as the trial move forward. However, I have found that having most of the trial scripted ahead of time allows me to have a very relaxed approach as I don’t have to worry about what to say at any given time. I can concentrate more on listening to the testimony and thinking creatively about how to adapt my strategy as unexpected issues arise. For me at least, my track record shows that this is a sound strategy.
Just like with the opening statement, the summation should be hard hitting right out of the box. Tear apart the State’s case and go through each witness. Explain how the State failed to prove its case and why the witnesses actually support the defense’s case. I like to explain why we got here to begin with which is usually a haphazard investigation that focused solely on the defendant’s guilty instead of what really happened. The State will have likely left a lot of stones unturned and its the defense’s job to expose them all. The jury instructions should also be explained but only those that focus on the defense’s theme, I.e reasonable doubt and the element or elements of the crime you are attacking. Remind the jury about your laser like focus on the issues that create reasonable doubt and how the State danced around those issues by wasting our time with various nonsense that does not prove anything.
Should the Defendant testify?
Some criminal defense attorneys take the position that the defendant should never testify. This is foolish and I have had great success with the defendant testifying. Of course, if you do it enough, it is bound to blow up in your face. Like anything else in defense work, I only do what it necessary. If it isn’t necessary, don’t take the chance. If you call your client because it was necessary and it blows up in your face, then you are likely in the same position if you didn’t call the defendant anyway.
The best trial run for a defendant is a Miranda hearing (assuming the client made a statement). The defendant can really be put through his paces and see how they handle the witness stand and more importantly, cross examination. In one child pornography case I had, I called my client during the Miranda hearing. The prosecutor destroyed him and from that point on, we decided that he would not be called during trial. Luckily, we won the trial without having to call him because we adapted our strategy well ahead of time.
While I am open to all options, I think the prime scenario for calling a defendant to testify is where he/she made a statement that needs further explanation due to ambiguities that the State can go far with. If these problems are not cleared up, the case may be hopeless. Thankfully, I haven’t had to do this in my own practice but I have seen a few cases on appeal where this was an issue. Again, it should be the last resort. Of course, the final decision as to whether or not the defendant should testify is the defendant’s alone but I have found that almost all will follow their attorney’s advice.
The witnesses that the State will call
Of course, every child pornography case is different and who the State will case is dependent upon the facts of the case, the possible defenses and the personal style of the prosecutor. Nevertheless, there are some patterns that emerge. In no real order, the State may call the following witnesses in a typical child pornography P2P trial:
Case agent, lead detective, initial detective, undercover detective
Whatever you want to call this person, he/she is the person that was in charge of the initial downloading process although they may have had limited involvement at the time of the arrest. Typically, they will search for the child pornography, download it from the client, prepare and send out subpoenas and then prepare the search warrant. They may not actually execute the search warrant or have any other involvement after that except for possibly a supervisory role. However, during their testimony they may testify as a non-expert on how a P2P program works. In the end, this witness will be a big nothing as they will not have any interaction with the client and this fact should be brought out in a number of ways on cross. I will not detail them here however.
Arresting/Interviewing detective
If the undercover detective does not participate in the execution of the search warrant, two other detectives will likely take over the case from there. Along with over a dozen other officers from a SWAT type unit, they will execute the search warrant, collect the computer(s) and bring the client down to a local police station to be questioned. While short of doing the good cop bad cop routine, these officers will question the client and it should all be recorded.
This may be the most important witness(es) as these detectives helped to determine who will be interviewed, what will be asked, etc. The defense attorney needs to get very creative with cross examination here.
Witness with regard to return on search warrant
A minor witness may be a chain of custody witness that drafted the return on the search warrant and transported seized equipment from one place or another. Sometimes, both sides can stipulate to the documents that the witness would introduce to avoid pointless testimony.
Surveillance
Prior to any search warrant, there is at least one detective that performs serveillance on the premises about to be raided. This witness was normally never called as there was no real testimony at issue here. However, the State is now making it a point to verify whether or not there was an open wi-fi signal outside of the defendant’s house/business thus attempting to foreclose this defense at trial. As a result, this witness will likely come to trial more often in the future. Of course, there are ways to attack this witness.
Computer Forensics Technician
Perhaps the State’s star witness. This is the person that will put it all together. This is also the person that may show the files to the jury (but not always). Despite this witnesses extensive training and experience, the State may not qualify this witness as an expert. This may limit the witness in what he or she can say. The defense attorney should have a brief on this issue ready to go to be faxed to the Court or to at least make an oral argument. I don’t like handing a Court a ready made brief as it makes it clear that you anticipated the argument.
Don’t let the witnesses (likely) nerdy appearance fool you. They are out to bury your client and they are trained in how to testify and how to respond to cross examination. Thus, questions must be very carefully scripted. They will do anything they can to get around your questions. Your job is to nail them down and not let them escape. Most of the witnesses have a script and if you can get them off script, they may quickly crumble. This is where computer forensics knowledge is vital. I cannot see how a defense attorney can spar with such a witness if they cannot speak the lingo and understand the concepts. This witness will likely try to use their superior knowledge to pull a fast one on everyone. Don’t let it happen! A skilled cross examiner and quickly turn this witness into one of the best tools for the defense.
The Child Porn Lawyer 