As an Aggressive Criminal Attorney and former prosecutor with 20 years of experience, I have been involved in the prosecution of hundreds of cases involving the possession and distribution of Child Pornography, on both sides of the aisle. These are very serious offenses that almost invariably result in the incarceration of defendants who are convicted.
Because the Child Pornography is almost always distributed and downloaded from the internet, there is dual federal and state jurisdiction to prosecute these cases. Often the mere threat of a federal prosecution is enough to convince defendants charged in the state system to accept plea bargains because the penalties in the federal system are draconian and mandatory. Anyone charged with these very serious charges needs to immediately retain an experienced criminal defense attorney to represent them. As I said, I have handled many of these cases. Here are the specifics on one I handled recently.
I represented a young man who was charged with various charges related to the possession of child pornography. At the time of the offense, he was 19 years old and had never been in any trouble in his life. He appeared in my office for a consultation after his house was raided by the police and his computer was confiscated. The basis for the warrant was that my client had visited a child pornography site that the police were watching and they traced the IP address from his computer to his residence. At the time of the execution of the search warrant, he was read his Miranda Rights and questioned about the case. He openly admitted that he searched many times for child pornography on the Internet using search terms typically used to search for young gay male pornography images. He admitted that he had used filing sharing programs such as Limewire to conduct the searches but denied that he had ever intended to distribute or share the images with anyone else. He further advised the police that he was only interested in images of post pubescent teenagers (in other words, his peers) and would immediately erase any images of young children captured by the Limewire search. He told the police that he utilized Limewire and other such programs because they allow a person to conduct multiple searches simultaneously, and not to distribute or share the images with other people. He advised that his computer is very old and very slow, so he would punch in the terms and then leave the computer for long periods while it conducted the search.
Unfortunately for him and many other similarly situated defendants, he will probably never have a chance to assert that defense to the felony possession with the intent to distribute child pornography charge. This is because the State’s Attorney utilized a common but some argue, unfair tactic to pressure him to plead guilty to the felony. Namely, they have threatened him with a federal indictment if he does not accept the state plea offer. The plea in state court will require him to serve a year in jail and register as a sex offender. While this may seem a harsh penalty for a young man with no prior criminal record, as it most certainly seems to me, the alternative is far worse. The alternative is to go to trial in federal court where he would face no less than five years in prison and very likely 10 years in jail if he were ultimately convicted. Given that he has no defense to the possession of pornography charge, which carries five years mandatory in the federal system, it would be utterly foolish to not accept the offer to serve one year made by the State’s Attorney’s Office, especially given the fact that federal sentences must be served in their entirety without the possibility of parole.
The reason I say that he has no defense to the possession charge is that the evidence against him on this charge is overwhelming. The police executed a valid search and seizure warrant on his premises during which they recovered a computer which they had previously linked to child pornography sites through the IP address. On that computer hundreds of images and videos of minor children engaging in sexual activity were found. My client then executed a valid written waiver of his right to counsel and confessed to being the person who had used that computer to search for those images. So even if he were successful in convincing a jury that he did not intend to distribute the materials to others, the best he could possibly hope for would be to be convicted of receiving the illegal images and being sentenced to the mandatory five year term.
As I said, many on the defense side see this tactic as unfair and coercive. However, the view of the U.S. Attorney’s Office is that they are basically giving clients such as mine a tremendous break by allowing them to plead guilty in the far more lenient state system in cases in which they could clearly exercise jurisdiction. I will leave it up to the reader to determine which view is more persuasive.