As an aggressive Criminal Defense Attorney, who is also a former Assistant State’s Attorney, I have helped numerous clients accused or charged with possession or distribution of child pornography. These serious charges can be prosecuted in State court or Federal court. Since State criminal charges are different than Federal criminal charges, which often carry far more severe punishment, I team up with my partner and former Federal Prosecutor Andrew White, who led the sex offense unit of the United States Attorney’s Office for more than 7 years. Over the years Andy has had tremendous success using his connections to have these cases prosecuted in State courts where there are no minimum mandatory sentences, as there are in the federal system. However, even in State court, these serious crimes may result in a felony conviction, extended prison sentences and the requirement to register as a sex offender.
Serious consequences In Maryland, a conviction even for Misdemeanor Possession of Child Porn mandates registration as a Tier I Sex Offender for 15 years. A conviction for Felony Distribution or Possession with the Intent to Distribute Child Porn mandates registration as a Tier II Sex Offender for 25 years. Additionally, a charge of possession for distribution of child pornography will likely impact every aspect of your life. From job prospects, to where you can live, to not being able to step on the property of your child’s school, to having the police notify your neighbors of your status, as well as inclusion on sex offender websites with your exact home address and picture.
I recently had a young man facing these daunting consequences. Here is what happened:
Facts of the case My client (I have changed or left out any identifying facts to protect my client’s privacy, otherwise the facts of the case are accurate) is a 21-year-old man raised in the suburbs of Washington D.C. with no prior criminal record. After graduating from high school he enrolled at a community college where he had earned nearly enough credits to obtain an associate degree. He then was going to transfer to a 4-year university to finish his education. To save money he was living at home and working at a restaurant to help pay for his tuition and living expense. In other words, he was a normal young guy living a normal life until early one morning last summer.
On this particular morning, his entire family was awakened at 5 AM by extremely loud banging on the door of their home accompanied by shouts of, “Police, we have a search warrant.” Unlike many cases I have seen, in this instance the police allowed the client’s father enough time to get to the door to let them in, rather than breaking it dwon.
The police, now inside the home, read the warrant to my client, his parents, and younger siblings and each was Mirandized. The police informed my client and his family that the downloading, and according to the police, the distribution of child pornography had been traced to a computer in the home via the computer’s IP address. The police requested all computers and external storage devices in the home to be given to them. At this point, my client admitted he had downloaded child pornography, but denied any distribution of the material. He cooperated and led the police to his room where his computer and half a dozen external storage devices were located. He provided his password and the police were able to match the computer’s IP address to the one they were searching for.
My client asked that his family’s machines not be confiscated, but the police refused saying they had to do a thorough search of all computers in the home but promised to return all computers not found to contain illegal content quickly if they all provided their passwords. They all agreed. The police collected all computers and performed a thorough search of the house. After several hours the police left without arresting my client to his astonishment.
Retaining an Experienced Attorney
The next day, using a friend’s computer, my client searched for a criminal defense attorney experienced in handling these matters. He found Andy and me and we met that afternoon. He retained us that same day and immediately I informed the police of my law firm’s involvement in the case. I asked that if they charged my client, they do so with a criminal summons instead of a warrant. On the spot, they refused but said they would consider it depending on what they found. In any event, they agreed that they would contact me to arrange my client’s surrender if a warrant was issued.
Upon speaking to my client about the case, he admitted to downloading child pornography. Like most of the men I have represented in these cases, my client had started looking exclusively at adult pornography and had unintentionally downloaded child pornography through large file downloads using BitTorrent and similar peer-to-peer sharing programs. He did eventually begin searching for and downloading child pornography, but explained he NEVER distributed the material to anyone, and didn’t understand why the police claimed he had.
I explained to him that during the downloading process, peer-to-peer sharing programs make a user’s files available to others for download. In other words, the police probably accessed his files, while he was downloading material. My client was adamant he had turned off this feature after each download was complete-further showing he did not intentionally distribute any material. Despite being confident he would be found not guilty of doing so in trial, I cautioned him that often in these cases prosecutors use the threat of federal indictment, with more punitive consequences, to obtain a guilty plea to the felony count in State court. Based on the facts my client gave me, I advised him he would probably be charged, which he was.
On the misdemeanor possession counts, I advised him it would be difficult to defend this charge since he gave a Mirandized confession. My strategy was to attack the warrant hoping it contained a Constitutional defect. We had successfully attacked warrants in similar cases, but advised him that finding case dispositive defects is rare. While I worked on this strategy, I referred my client to a top doctor, whom I had used in other similar cases, to administer a psycho-sexual evaluation to help convince the court that my client was neither a predator nor a danger to the community.
Ultimately, the State indicted him on 3 counts of distribution of child pornography (for the two images and one video detectives had downloaded from his files in the manner that I had advised him they had done) and 50 counts of possession of child pornography, although over 300 images and videos were found on his computer and thumb drive. Unfortunately, we found the warrant was issued legally so there was no viable defense to the misdemeanor possession counts. The best option for my client was to convince the State to drop the felony counts, which would mean the case would have to be resolved by negotiation rather than trial.
Conclusion First we were successful in convincing the US Attorney’s Office to allow the case to remain in state court. Needless to say, this was a huge victory for the client.
We made it clear our client lacked intent and having no prior record he would never plead to the felony. The prosecutor relented and agreed to 6 counts of possession to child pornography, agreed to drop the other 44 counts of possession, and decided not to pursue felony charges.
We then convinced the court to grant probation before judgement (PBJ) so our client did not have to register as a sex offender or serve any jail time. The PBJ allows him to expunge the matter from his record in 3 years.
Since the client had given a confession, there was no defense to the misdemeanor charge. Therefore the resulting outcome which included no felony charges, no sex offender registration, and no jail was the best conceivable outcome for the client and is one that will allow him to put this behind him some day.
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