Third Manassas

They backed down.

This time.

The cops in Manassas, Virginia got a search warrant allowing them to medically induce a hard-on in a 17-year-old boy, take pictures of his erect penis, and have some dirty-old-man penile expert compare their pictures to ones they say the boy took himself so that they can prove he made kiddie porn of his own penis.  So they can prosecute him for the felony.

I mean, what's the big deal?  They already forcibly took pictures of his flaccid penis, so it's not like they haven't already sexually abused him once.  And if the first not-quite rape didn't satisfy. . . .

And when they're done?  Prison.  Lifetime registration.  After all, he took a photo of his penis.  (They did, too, but he took his picture willingly and for his girlfriend who first sent him pictures of herself naked, but that's OK because Hoo Ha! Pussy!  For the cops, on the other hand, it's all about inflicting justice on the miscreant, so they can sexually assault the child with impunity, because they seek only to punish him for having a picture of his penis which is altogether different from them having a picture of his penis.)

There was, as you might imagine, some indignation among the usual folks who are soft on crime.  You know, Emily Bazelon at Slate (who doesn't really believe it) and Rick Horowitz and Scott Greenfield.  And apparently everyone else, too.

And so the cops and the prosecutors issued a statement saying that they don't do shit like this and haven't actually done it in this case.

It is not the policy of the Manassas City Police or the Commonwealth Attorney’s Office to authorize invasive search procedures of suspects in cases of this nature and no such procedures have been conducted in this case.

Which seems to be true, since the kid got permission to skip town for the weekend and they wouldn't get to make their kiddie porn until he got back.

But that was so Wednesday.  By Thursday, with the firestorm breaking all around them, the cops backed off.  Matthew Barakat in the Huffington Post.

Police in Virginia on Thursday backed off efforts to take sexually explicit photos of a 17-year-old to prove a sexting case against him.
Police and prosecutors faced a wave of criticism following news media reports that they had obtained a warrant to take photos of the teen's erect penis. Police wanted the pictures to compare against photos he is accused of sending to his 15-year-old girlfriend at the time.
On Thursday, Manassas Police Lt. Brian Larkin said the Police Department will not proceed with the plan to take the pictures and will let a search warrant authorizing the photos to expire.

That's a good thing, of course.  And maybe it says something about the ability of quick and loud and universal scorn to have some effect.

So let's have a moment of pleasure that they backed down.  And then let's remember the rest.  

THEY ACTUALLY GOT A MAGISTRATE TO SIGN OFF ON THE FUCKING WARRANT!

And they sure as hell intended to execute it.  And if you don't think they won't do it again.  Or the cops a few zip codes over.  Or the ones in your neighborhood.  When they can keep it under the radar a bit.  

Law of Rule.

* * * * *

First and Second Manassas were battles of the civil war.

On Parsing the Cost of the Harm - and Its Cause

There are, in this world, people who do unspeakable things to others.  Some of their victims are children.   And some of them - Well, thereby hangs a tale.

Someone rapes a child, films it, and puts the film out in the ether where others can see it.

That's a whole bunch of crimes.  Maybe the baddie is found, convicted, and punished.  But the child is (and no one possessing even a hint of a sound mind can fairly disagree) likely damaged.  And then there's the follow up.  That film out there in the ether where others can see it actually gets seen. Repeatedly.  Over and over.  And the child, later an adult, learns that those films (or still pictures, that really makes no difference) are being masturbated over by (almost exclusively) men who get their jollies seeing little whoever getting raped.

And the child or now adult feels that with every viewing there's another violation.  Which is (and really it's hard to deny this) damaging again.

I mean, we're not just talking hurt feelings and being overly sensitive here.  This is real stuff.

Enter Congress which, in its infinite wisdom, enacted the Mandatory Restitution for Sexual Exploitation of Children Act to see that those who get off on seeing that kid raped are criminals and should be punished.  And, in particular, that they should pay for the harm that's caused to the child when she learns that they're jerking off to the visuals of her rape.  And so there's this law that says they have to pay her damages.

Calculating damages that aren't just out of pocket expenses is a tricky business, actually it's largely a matter of picking a number out of thin air, but put that aside and do the math for "Amy unknown" who's rape is the subject of what's known as the "Misty" series.  The figure they've come up with is 3.4 million.  Amy's claim is that every time she learns of another person who looks at her being raped, it brings it all back. So she wants every one of those people to pay 3.4 million.  And there's this law.

Of course, one guy has watched Amy being raped dozens, maybe hundreds of times. While Doyle Paroline of Tyler, Texas (it gets personal eventually - Amy isn't the only real person in this story) only a couple.  But they both, maybe, get hit with the 3.4 million.  Which doesn't exactly seem right to Paroline who's stuck paying for damage that other guy caused Amy.

And that's the case that went to the Supreme Court which yesterday explained how much Paroline should pay.

And the court, in its wisdom, concluded . . . .  Here's where it gets tricky.

Sotomayor, and she alone, said that he should be stuck with the whole 3.4 million.  If he thinks that's more than his share, he can hire a lawyer and track down the other baddies and try to get some money back from them.

Roberts (with Scalia and Thomas along for the ride) said that Paroline can't be forced to pay more than their share, that is, for the portion of her 3.4 million in damages that he personally actually caused. And since it's impossible to calculate that amount (which nobody really disputes), and since criminal punishment isn't supposed to be just pull-it-out-of-your-ass (though of course that's what it often is, though as Scott Greenfield points out this morning taking off from a post by Judge Kopf yesterday, the alternative of rigid sentencing guidelines is just as bad if not worse).  So, since we can't come up with an answer, the answer must be nothing.  Which isn't particularly satisfying to Amy but is the only logical and coherent view.

Logical and coherent not being hallmarks of the law (despite its pretensions), the Court's actual decision was that Paroline ought to pay exactly for the percentage of the 3.4 million in damages he personally caused Amy when she learned that he jerked off to her rape (3.4 million that was determined to be the amount of her damages before he ever got involved) and even though there's no way to figure out how much that is, or even to make a good guess, judges are to reach deep into their asses and decide with rigor and logic and . . . 

Well fuck.  Justice Kennedy, on behalf of himself Breyer, Ginsburg, Kagan, and Alito declared that they're supposed to make it up.  Which is, in essence, splitting the difference even if it's wholly stupid.

The case is Paroline v. United States (which I've written about before) and you can read the opinions here. 

But wait, 'cause this isn't just a lesson in how the Supremes do whatever they do.  And it's not just a report on one of the two criminal cases the court decided yesterday.  (The other was a terrible decision reversing a grant of habeas corpus relief from the 6th Circuit, White v. Woodall.)  Because there's a question you may have been wondering about:

How is it that Amy knew Paroline had her stuff on his computer?

I mean, he's got to pay the percentage of 3.4 million that he caused not just by having his fun while she got raped.  That percentage would be zero if she didn't know he was doing it. And she knew because (I'm going boldface and bigger font and centering here)

Congress required that she be told.

Yep.  That's the law.  The government is required to let her know whenever they find out that her rape is on someone's computer.  And as she says, whenever she learns, she feels violated again.  And wants her money so that she can be, in the twisted language of the law, "made whole."

And, of course, if she wasn't told . . . .  We're not supposed to go there.

And amid the years of squabbling about how much Doyle Paroline should be out of pocket, it's an issue nobody talks about.

Paroline, Haugen, Maharaj - Catching Up on the News

We here at Gamso For the Defense (that's the Royal we, since I'm the only one here) struggle to stay atop the news and to keep tabs on stories.  Occasionally we even succeed.  As it happens, there are developments of a sort in two of the things about which I've written before.

So while we wait to find out how SCOTUS will parse the language of the Mandatory Restitution for Sexual Exploitation of Children Act -- Oh, I guess I'd better explain.

In 1994, Congress passed this law that said anyone convicted of federal crimes of sexually exploiting children must pay restitution to the identified victims of those crimes.  (There are a bunch of preliminary hoops that folks have to jump through - not least of which is identifying the victims.)  One child, known as Amy Unknown, was raped by her uncle when she was 8 and 9.  

She's 21 now, but her life has, apparently been a complete mess ever since she learned some years later that her uncle took pictures of the rape and they've been circulated widely on the internet.  (Don't go looking for them.  That's a serious federal crime.)  The damages she suffered and will continue to suffer from the knowledge that the pictures of her rape are being viewed by folks have been calculated at 3.4 million dollars.   To date she's been paid some 1.7 million in restitution.  Which means she's still owed 1.7 million.  The question is who should pay.  And how much.

That question made it to the Supreme Court this morning for oral argument in Doyle Randall Paroline v. United States.  (Transcript here.)  Paroline was discovered to have thousands of pictures of child pornography on his computer.  Two were of Amy.  He's been ordered to pay Amy 3.4 million for the harm he caused her by looking at her pictures.  Oh, nobody thinks he personally caused all 3.4 million in harm.  But he caused part of her harm by looking at the pictures of her being raped.  He's to pay what he can. After all, she's harmed whenever she learns that someone looked at her pictures.  

But should he really be stuck with the whole bill since he didn't cause the whole harm?  Maybe he should only have to pay restitution for the portion of the 3.4 million harm caused by his looking at those two pictures.  And how do you calculate that?  That's what the Court will try to work out in his case.

But hang on a second.  So he looked at Amy's pictures.  That doesn't harm her unless she knows, right? How is it that she knows?  How did she learn that Paroline had those 2 pictures?  Good questions.  The answer:  Our government told her.  Congress says the children in these pictures, if they can be identified, have to be told every time someone's caught looking at their pictures.  Which harms them. But the government isn't liable for the harm, even though it's actually the immediate cause of it.  That issue wasn't before the Court.

Did I mention that this is really fucked up?

Anyway

ALSO IN THE SUPREME COURT

Or maybe it would be better to say not in the Supreme Court, is Gary Haugen.  You remember Gary. He's the guy on death row in Oregon who was due to be executed when Governor Kitzhaber granted a reprieve explaining that he would not allow any executions as long as he's governor. Haugen was pissed, wanted to be killed.  He sued the Governor claiming that Oregon law makes a reprieve something like a contract and it has to be accepted or it doesn't count.  Since he didn't accept it, it didn't count and he could be killed.  The Oregon trial court agreed, grudgingly.  The Oregon Supreme Court said no. 

So Haugen went to the U.S. Supreme Court.  Which on Tuesday told him to go away

. They wouldn't hear his case.  Damn.  Now if he wants to die he has to kill himself.  Or wait till Kitzhaber's no longer governor and hope that the next guy is more bloodthirsty.  

The good news from Haugen's point of view is that Kitzhaber only has another year in his term.  The bad news is that he he just announced he's running for another term.  If he wins, that's 5 more years of reprieve.  Shit.

Oh, and there's this.  Jason Brumwell, Haugen's co-defendant is also on death row.  Same song, second verse.  Two weeks ago. Brumwell announced that he wants to be killed and will sue the Governor if he's granted a reprieve.  

Maybe it's something in the water.

WHILE IN FLORIDA

It was November 2012 when I reviewed Clive Stafford Smith's The Injustice System which told the story of Kris Maharaj, how he ended up in prison in Florida, first on death row, then just for decades, for the 1986 murders of Derrick and Duane Moo Young in a Miami hotel room.  A pair of murders he almost certainly did not commit.  He's 74 years old and confined to a wheelchair.  He's served some 27 years so far.  He'll first be eligible for parole in another 27 years, when he's 101. If he lives that long.  

Clive's been on the case for close to 20 years now, struggling to free him.

Just maybe.  

The evidence Clive presented in the book suggests that the actual killers may be from Columbian drug cartels.  There's more evidence now, including witnesses who can say that Pablo Escobar personally ordered the murders and that Maharaj had nothing to do with them.  And there are the fingerprints in the room which can be matched, maybe, to the actual killers.  If Florida would just let the examination be done.

But why would Florida do that?  Why would they want to find out?  Oh.  Right. 

What I say about the DNA in other cases, I say about the prints in this one.

TEST THE FUCKING FINGERPRINTS.

I mean, there are three possibilities.  Either they'll strongly corroborate the claim that Kris didn't do it and that a couple of Columbian drug cartel types did.  Or they'll show nothing of the sort.  Why wouldn't they want to know. 

There's supposed to have been a hearing earlier today.  I haven't found a news report.  

But when I do.

* * * * *

Just another day in the trenches.

This one's not a felony, it turns out

I've written here and here about Stacey Anvarinia, the woman who was found guilty of felony child endangering and sentenced to six months for drunken breastfeeding. It turns out that there's good news in her case. She didn't have a camera handy.

As Jonathan Turley noted via Alaska Live which just stumbled across this old story at DallasObserver.com, a couple in Richardson, Texas wasn't so lucky.

Jacqueline Mercado and Johnny Fernandez are Peruvian immigrants. She came first, and they were delighted to be back together after he emigrated. It was also their son's 1-year birthday. To celebrate, they took pictures of themselves and their child. They took them for 1-hour processing at an Eckerd Drugs. (This is before everyone had digital cameras; and it's a damn shame they didn't have one.) The one of their son getting out of the bathtub set off the Eckerd alarm system and the drugstore called the cops. Cops took one look at the picture, next thing you know, they're rummaging through the Mercado/Fernandez one-room home. And they find a photo of the boy breastfeeding.

Kids taken out of the home. Charges of child pornography. Possible 20 year sentence. For the one picture of the breastfeeding 1-year old.

Prosecutors eventually dismissed the case, though they called it a close call. Finally, a week after the story ran in the Dallas Observer, Child Protective Services returned the boy to his parents. After 5 months.

It's a horrible story. If it were unique, I probably wouldn't write about it. Just another example of overzealous cops and prosecutors pursuing their own agendas (agendae?) until the disinfectant of public obloquy got them to back off. Alas, it's not unique.

There is, for instance, the case of 59-year-old Donna Dull who dropped off some film at WalMart. The photos included pictures of her 3-year-old granddaughter in and getting out of a bath. 15 months later, the child pornography charges were dropped. The special prosecutor who dismissed the case said there's no problem; people like Ms. Dull who take innocent pictures will never be charged or prosecuted? Except sometimes.

Then there's Jody Jenkins who took some pictures of his kids, during a family camping trip. Eckerd's. Police. Child protective services. Months of horror and fear.

Then there's this whole set of stories mentioned here.

I'm not arguing in favor of child pornography. It's real and it's a problem. But not every photo of a naked kid (or a suckling one) is porn. Parents take those pictures all the time. Child on bearskin rug is iconic. So is mother giving the breast to her child.

We endow police and prosecutors with enormous discretion, and the damage they can do when the discretion is abused is incalculable. But the real problem here, in these cases, isn't with the cops or the prosecutors (though they could all certainly have exercised some real and sensible restraint). The real problem is with a culture so fearful of predators and so horrified (and yet attracted to) the sexualization of children that it seems to encourage this sort of behavior. (See the sexting cases, which I'll speak of in detail another time, for a clearly related example.)

As we struggle to protect the children, so we demonize the parents. And, of course, the children suffer along with them.