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By Tami Loehrs
May 10, 2022
“I’m innocent!”
How many times as an attorney have you heard that word? How many times does it actually ring true? It doesn’t matter. You are there to defend your client regardless of guilt or innocence. Nevertheless, you might want to assess the truthfulness of that statement for your own edification. An understanding of your client’s constitution. Is this a good person? A truthful person? A person of moral fortitude? A person I want to represent?
When the allegation is murder, you are likely to find a plethora of support for your client. Family members, friends and coworkers will offer you their honest opinions. “No way could he have done this. I’ve known him for years, it’s not in his character, he wouldn’t hurt a fly.” Innocent until proven guilty is alive and well.
Now put the word “child” in front of the word “pornography” in the allegation and all jurisprudence goes out the window. The same network of confidants respond with such things as, “Oh My God, we had no idea. I guess sometimes you just don’t really know someone. How disgusting.” Guilty from the get-go.
Let’s consider for a moment that your client, we shall call him John, has been charged with first degree murder. After law enforcement serves a search warrant that includes the seizure of electronic devices from John’s residence, the indictment is amended with charges of distribution and possession of child pornography. A tactic that is becoming a little too commonplace in a variety of criminal cases these days. Because an accusation of child pornography is a sure winner for the prosecution, while a murder conviction is still a gamble.
John admits that he killed somebody but claims it was an accident. He emphatically denies any knowledge of child pornography.
The murder case is pretty straight forward. There’s a body, a murder weapon and John’s unfortunate crime was captured by a surveillance camera. Case closed.
Luckily for John, the video is incontestable regarding motive. An argument that got out of control, a swipe at the head with an object a bit too heavy, unintentionally ending in death.
This is where sentencing John for his convicted crime gets complex. There are three classifications of murder with aggravating circumstances and downward departures to consider for each. The video of the incident clearly shows the murder doesn’t meet the definition of first degree, which carries a sentence of life in prison, without parole, and possibly death. The worst of all sentences.
This is an obvious case of second degree, a much lesser sentence of 15 to life, with mitigating factors to consider that may further reduce John’s sentence. He is devastated over the unfortunate incident and has shown his remorse. He has led a life void of any wrongdoing until this pivotal incident, a pillar member of the community. And John’s support system will march in like the cavalry to share stories of his strong character and well lived life as they beg the court for lenience. And John will likely end up with under ten years if he has an understanding judge. Deservedly so.
Now let’s look at the secondary allegation that John possessed and distributed child pornography. An afterthought brought on by the seizure of electronic devices, looking for a motive in the murder case, prior to the revelation of a surveillance video.
A forensic examination of the computer seized from a room identified as John’s home office, revealed over 3,000 images, only 10 of which included children being sexually exploited. The offensive images were found in the downloads folder under John’s user account, downloaded during late night hours with the same BitTorrent software that John used to obtain his favorite songs and software for his business. Tangible evidence of a man sneaking into his private space late at night, while his family slept, accessing his personal computer for the purpose of collecting incomprehensible pictures of child sexual abuse, including infants and toddlers. Lock him up and throw away the key!
The possession count for a first-time offender has no mandatory minimum and no mandatory maximum. Based on averages, John is likely looking at five to ten years for possessing such appalling images. Until … the enhancements.
If the images contain children under a certain age, imagery that depicts sadistic or masochistic conduct, and other depictions of violence, add more years to John’s sentence. If the offense involves a computer, which is kind of a no-brainer since it’s a computer crime, add another enhancement to the sentencing guidelines. If the images traveled over state lines, which is basically how the Internet works, add more time to John’s sentence. If there are over 600 images, add even more years. Let’s not forget that the guidelines calculate a single video file equal to 75 images. John is almost certainly looking at a life in prison.
But wait. John’s sentence is not complete yet. He still has multiple counts of distributing the very same child pornography files he possesses. A charge included almost by default when files are associated with file sharing software. Unlike possession, distribution has a federal minimum of five years with plenty of room to add the same enhancements applied on the possession counts, assuring the defendant never sees the light of day again.
The specifics in John’s case involve the distribution of 10 videos, identified by law enforcement’s proprietary software that scans file sharing networks 24/7 looking for “files of interest.” Mind you, the files of interest need not contain material that violates any laws, only files that law enforcement agents have deemed objectionable.
Within minutes of downloading two torrent files to John’s computer, one titled “Big Boobs Archivos” the other titled “sexy big boobs” law enforcement’s software flagged data within those torrents as files of interest. Once flagged, the software reported the IP address, registered to John as the name on the Internet bill, documented the version of the BitTorrent software, along with the name and MAC address of the computer containing the illegal files. John’s computer.
But much like the surveillance video proved motive did not meet the definition of first-degree murder in John’s case, the forensics examination of John’s computer proved that he had nothing to do with the child pornography found there.
The digital evidence, reviewed by a defense expert nearly a year after the Indictment was filed, revealed that John’s 17-year-old son accessed the computer in John’s office, the only computer in the home with high-speed Internet, and logged in under the only account. John’s. He then searched for “hot chicks with big boobs” on the same BitTorrent network that John used for classical music and business software. The two torrents were automatically downloaded to the default folder specified by the BitTorrent software, the Downloads folder under the only account on the computer. John’s. Each torrent contained over 1,200 images and hundreds of video files, with over 3,500 total files downloaded in under a minute.
John’s son did not open the torrent files after the downloads completed on his father’s computer. Rather, he copied them to his personal thumb drive so he could open and view them on his own private laptop.
John had no idea the torrents had been downloaded to his computer by his son on a night that he was able to prove he was out of town on a business trip. The forensic evidence revealed none of the thousands of files within those torrents were ever opened or viewed on John’s computer. His son was not a suspect and his son’s computer never examined.
Of the thousands of files that were downloaded to John’s computer that evening, approximately twenty of them contained illegal images of child pornography. Images of prepubescent minors. Images of violence and abuse. Thirty-minute videos containing the most horrific scenes nobody should ever have to witness. And nobody did. Especially not John. Because he had no idea they existed on his computer.
Those files sat unnoticed by John for months in the downloads folder of his computer, the default for sharing files on the BiTtorrent network. As such, John’s computer was resharing the same vile content depicting horrific acts of child abuse to anyone on the BitTorrent network who put in similar searches as John’s son. And all of this activity occurred in the background, invisibly and completely unbeknownst to John.
This scenario is not a fantasy. It is not an anomaly. It is not concocted. This happens more often than anyone wants to admit or talk about. Because the words “child pornography” are so offensive we can’t possibly discuss a scenario where a defendant might be innocent. Or innocent to varying degrees. Files obtained inadvertently, downloaded by others, the result of viruses or hacking, and hundreds of other means in which files with offensive content find their way onto our computers without our knowledge.
Unfortunately for John, his case was made public the moment the indictment was filed. His name and face plastered all over the Internet for all to find with a simple Google search. The actual count of offending files, only ten, had not yet been determined. Nevertheless, he was accused of having thousands of horrific images of children being sexually abused. No forensic examination of his computer done yet. No further investigation conducted. No witness statements. No lie detector tests. No trial. No judge. No jury. His life ruined in an instant. His career over. His business defunct. His family destroyed. Because this is a crime so grotesque, nobody is without guilt.
And John’s chance of defending himself in front of a jury of his peers, clearing his name, impeccable character and a life well lived, will be about as successful as licking your own elbow. It can’t be done. Try it.
So, how does the judge sentence John in a case such as this once convicted for a crime he did not commit? Give him the mandatory minimums? Add all of the enhancements? Follow guidelines that are unduly harsh and completely outdated with respect to modern technology. Throw John’s son under the bus? Or just put John away for the rest of his life over his son’s innocent negligence? A fact that was kept from the jury that convicted him.
As Ketanji Brown Jackson put it, everybody is not at the same level, you need to look at what a person has done.
So how should John be sentenced? There are no options when there are mandatory minimums. John is being charged with distribution which carries a mandatory minimum of 5 years. And according to the sentencing enhancement USSG § 2G2.2(b)(3)(F), there is a two-level enhancement on the separate possession charge for distribution – a crime for which he is already serving a sentence, for an act that was done passively, autonomously, and without volition.
What about the rest of the sentence which is based on the judge’s discretion? Should the judge add all of the enhancements for use of a computer, the number of files, or the atrocious content within those files? Files and content John had no knowledge of.
Nobody could obtain thousands of files with a single click of a button in under a minute when these guidelines were written. They were adopted during a time when the offensive images were sent with an envelope and a stamp. And someone who took the time and effort to send hundreds or thousands of images via the postal service was undisputedly engaged in this horrible conduct. And extremely patient.
Should the judge add enhancements for using a computer when that’s literally how these crimes are committed? Because it is 2022, not the 1980s.
USSG § 2G2.2(b)(6) is an increase by two levels (same as distributing child pornography) but for “use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of materials.” If you are not using a computer for these crimes, you are likely to be a more dangerous offender because it means you have adopted a community of people that enables you to possess and distribute physical materials – materials that likely depict their hands-on offenses in contrast to the mass distributed material circulated on the internet.
And speaking of mass distribution, should the judge add enhancements for the sheer number of images?
USSG § 2G2.2(b)(7)(D) is an increase in five levels (more than double that of distributing) if the defendant was responsible for more than 600 images. However, each of the ten videos, considered to be 750 images, were all downloaded in an instant by the single click of a button, with more than three thousand other perfectly legal files. Because one download can cause hundreds or thousands of files to be created instantaneously, is it fair to count the download of one file, an innocuously titled torrent, as 600 separate images that someone knowingly possessed?
Let’s not forget the additional restraints these guidelines include when convicted of such a crime. Twenty to forty years of supervision. Registration as a sex offender, which makes it nearly impossible to find a job or a place to live. Not permitted to use a digital device in a normal manner for decades affecting every aspect of life in today’s world of technology. It’s a life sentence nearly impossible to endure. And for what? Some computer files downloaded in an instant, the contents of which John had no knowledge of. The answer for most of society is… a resounding YES! And this needs to change.
What about John’s son? The forensics evidence was indisputable in proving his son was responsible for the late-night downloads containing the illegal material, albeit unknowingly, because he was just looking for “boobs.” He blindly downloaded two torrents with thousands of files, some of which contained horrific content he also knew nothing of, identified immediately by law enforcement’s monitoring software. Should he now be charged as well? Should he be publicly shamed? Should he be convicted and put away for life? For one click of a button? Essentially a child himself who made a life changing mistake looking for breasts on his dad’s computer.
We all need to take a closer look at these cases. We need to focus on material facts, recognize outdated laws, and put all emotional biases aside. Because those two words, “child pornography”, are ruining innocent children in the name of protecting children, destroying entire families, and dismantling businesses and careers. We are punishing soldiers with PTSD, people suffering from depression, alcoholism and addiction. We are incarcerating individuals with Autism, Asperger’s syndrome and other ailments who are underserving of their punishments. Simply because they have access to a digital device, a connection to the Internet, and a complete unawareness of the dangers that lurk there.
To clarify, this article is not about actual pedophiles. They are incredibly easy to identify through an examination of their electronic devices. And quite honestly, most of them are well aware of their misdeeds and openly admit to them. But a convicted pedophile who physically molests a child is looking at a presumptive term of approximately 10-15 years in prison, decades less than those who possess computer files depicting the same offense.
This article is about the innocent. And for all of those who object to reexamining these draconian guidelines in an honest effort to apply punishments more accurately fit to the reality of today’s technology, and the guiltless, be wary. In the infamous words of Shakespeare, changed only slightly to include everyone, “Thou dost protest too much.”