The Criminal Lawyer

So you were hanging out with your buddy Joe, a guy who buys weed off you every now and then. Joe tells you he knows a guy who’s looking to buy more than Joe usually gets, and offers to introduce you. One thing leads to another, and soon you’re making a big sale to this new guy. As soon as everything changes hands, you’re cuffed and arrested. Turns out your buddy Joe was an undercover all along. He set you up! A cop! That’s entrapment, right?

Or maybe you were a out on a call, meeting another poor schlub at his hotel room to trade a little physical pleasure for a little cash. As is your practice, you make sure to confirm he’s not a cop first. He says no, you discuss what he’d like to do and for how much, and now you’re in handcuffs. What the hell? He lied to you! A cop! That’s entrapment, right?

Or maybe you were out protesting the latest outrage du jour, and you and your buddies decide to move the protest to a major thoroughfare at rush hour. The cops don’t stop you until you’re there, and then they arrest you. They let you do it! The cops! That’s entrapment, right?

Nope, nope, and nope.

Entrapment is not what most people think. It’s not when the police conspired with you to commit the crime. It’s not when your decision to go ahead with the crime was based on a police lie. And it’s not when the police didn’t stop you from committing the crime.

The police helping you commit a crime is not entrapment. Entrapment is when the police made you commit the crime, when you wouldn’t have done so otherwise.

Entrapment is when you would not have committed the crime, period, if the police hadn’t made you do it. If you’d never sold drugs in your life, but the undercover begged you for weeks to do the deal to save him from being killed by his supplier… maybe that’s entrapment. If you were not going to that hotel room as a prostitute, but for a purely social encounter, and the cop gave you money you’d never asked for… that’s probably entrapment. And if the cops out-and-out told you and your fellow protesters to go onto that street, and then arrested you for doing what they told you… that’s entrapment.

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Different states deal with this differently. Some look at your (more…)

GEN. MELCHETT: Field Marshall Haig has formulated a brilliant new tactical plan to ensure final victory in the field.

CPT. BLACKADDER: Ah… Would this “brilliant plan” involve us climbing out of our trenches, and walking very slowly towards the enemy?

CPT. DARLING: How could you possibly know that, Blackadder? It’s classified information!

CPT. BLACKADDER: It’s the same plan that we used last time. And the seventeen times before that.

GEN. MELCHETT: Ex-ex-ex exactly! And that is what is so brilliant about it! It will catch the watchful hun totally off guard. Doing precisely what we’ve done eighteen times before is exactly the last thing they’ll expect us to do this time! There is, however, one small problem.

CPT. BLACKADDER: That everyone always gets slaughtered in the first ten seconds.

GEN. MELCHETT: That’s right.

From “Blackadder Goes Forth” Plan A: Captain Cook

(Quoted scene begins around 8:30)

Because of the frankly horrible topic of this post, we thought we’d dilute it a bit with a bit of Atkinson, Fry and Laurie. But it’s on point. As this clip illustrates, it simply defies common sense to try the same thing repeatedly and expect a different outcome.

But in child porn cases, defendants and their attorneys keep trying the same thing over and over, and all that happens is they go to jail.

We’re talking about the “I was only doing it for research” defense. Pete Townshend of The Who tried it, to no avail (although possession charges were dropped six years ago today, when no porn was found to be in his possession, he was still put on the sex offenders registry for paying to visit a child porn site). Any number of less-well-known defendants have also tried it and failed. Washington Post reporter Lawrence Charles Matthews tried it, and he actually had done a radio series on the subject, and he still got time (and his case, U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) specifically held that there is no exception for journalistic or other allegedly-legitimate uses of child porn). A law enforcement officer, Michael McGowan, claimed to have been doing his own investigation on his own time, and wound up getting 20 years. Talk show host Bernie Ward claimed he was doing research for a book, and got 87 months last year.

Even though the defense never works, people keep trying it. And so we come to erstwhile war hero Wade Sanders, the former assistant deputy Secretary of the Navy who came to national prominence when he vouched for former presidential candidate John Kerry, who just got sentenced to federal prison.

First, some background. CAUTION: EXTREMELY DISTURBING CONTENT FOLLOWS.

During an apparently typical investigation, an undercover FBI agent logged onto a peer-to-peer file sharing service (where members can copy files from each other’s computers), and searched for computers containing files with the term “pthc,” which is shorthand for “preteen hardcore.” The agent found several child porn files on Sanders’ computer, including a photo of a preteen naked girl lying on her back with ejaculate on her stomach, a 10 minute video of adult males inserting their penises into the mouths of prepubescent naked girls with one scene of ejaculation, and a photo of two naked prepubescent boys engaged in anal intercourse. It was easy to identify the location of the computer where the files were located, and a search warrant was obtained. On executing the search warrant, three computers and an external hard drive were seized, all of which contained many more equally disturbing photos and videos. (This is common. Most offenders who possess child porn possess a large quantity of it.)

During the search, Sanders spoke with the agents. When asked if any child porn would be found, he only said that he sometimes encountered it while downloading adult porn, and always deleted it. At no time did he suggest that he was conducting research that might explain any child porn they might find. And he wasn’t found to actually have any research notes or materials.

The evidence appeared strong enough that he decided to plea to the charge, under 18 U.S.C. § 2252(a)(4)(B). Under the Guidelines, his offense level was adjusted upwards for having materials involving under-12 kids, using computers, distributing materials, and possessing over 600 images, to level 29. He got the standard 3E1.1 three-level reduction for accepting responsibility, getting him to level 26, with a sentencing range of 63 to 78 months.

At sentencing, the prosecution asked for the low end of 63 months. Sanders sought probation.

In his own defense, Sanders claimed that he was researching child porn, but with a twist. He started by saying he’d gone through hell in Vietnam combat. Then, in 2004, he started supporting John Kerry for president, and was criticized by other veterans. This criticism made him feel betrayed, and sparked an onset of post-traumatic stress disorder. This PTSD manifested itself with obsessive-compulsive behavior. He then stumbled on an image of child porn, was horrified by it, and became overly protective of the little kids. So he obsessively began trying to find out where the kids came from and the conditions they lived in.

The judge, Thomas Whelan, flatly stated that he didn’t buy it. He found no evidence that Sanders was telling the truth about being involved in any research. Sanders never mentioned this during the search, either. And his own story didn’t explain the stuff he’d downloaded before 2004. Judge Whelan also pointed out that the “I was only doing research” claim, even if true, is still not a valid defense under the law.

So, although the judge did come down off the Guidelines sentence, Sanders still received 37 months in prison — at the end of which he will be 105 years old. In all likelihood, this is a life sentence for the man.

* * * * *

What puzzles us is why people keep trying this defense, when the law doesn’t recognize it and it never ever works?

If we might be a little shameless here, we’d recommend that people try our piece titled “Understanding the Investigative Process to Better Defend Your Client,” in Inside the Minds: Strategies for Defending Internet Pornography Charges (2008). Or they might take our online CLE on defending internet porn cases, (the first in our “Hope for Hopeless Cases” series with West LegalEdcenter, which also includes that chapter in the course materials.

These cases rarely go to trial. Like Sanders, defendants usually plead out because the evidence appears overwhelming. Still, appearances can be deceiving, and there are often ways to attack the evidence itself. Maybe not enough to justify taking the case to a jury, but perhaps enough to negotiate a better deal. (Not implying that was the case with Sanders, nor impugning his attorney in any way, of course.)

What is most likely to work, however, is not trying to explain it away. Rationalizing the evidence is only going to hurt your credibility, as it did to Sanders.

Instead, what is most likely going to work is to attack the evidence itself. This is time-consuming and expensive, and isn’t guaranteed to work. After all, investigators have the luxury of building their own cases, and cherry-picking the strongest cases from the enormous number of possibles they could charge. Ideally, you want to be able to give the prosecution a new way of looking at the evidence, so that they realize it’s not necessarily as strong as they originally thought. It takes deep understanding and analysis by experts, as well as compelling advocacy. But even in a less-than-ideal situation, the more you can put the prosecution on the spot to defend its evidence — that the photos are real, that they depict real people, that the kids really are minors, etc. — or the more you can raise doubt about how incriminating it is, the better your chances of a decent plea offer.

Prosecutors rarely change their assessment of what a case is worth based on excuses and rationalizations. They made up their mind based on the evidence they have. A good defense is going to give them a new way of looking at that evidence, to get them to re-assess the defendant’s culpability, their chances of success, or (yes) the amount of work they’re going to have to do if this goes to trial.

And FOR THE LAST TIME, PEOPLE, “I was only doing research” is NOT going to do the trick.