Cyber Crime Lawyer Blog

Because I am a Miami sex offender registration defense attorney, I have kept an eye on the local scandal involving sex offenders who live under the Julia Tuttle Causeway Bridge. The colony made the news a few years ago when it came out that sex offenders faced residency restrictions so severe that they actually couldn’t find anyplace else in the county where they could legally live. In fact, an investigation by New Times Miami found that the Florida Department of Corrections was ordering recently released inmates to live there, and some even have the address on their driver’s license. According to a Jan. 21 article in the Miami Herald, Miami-Dade County Commissioners have finally taken steps to address the problem by making new rules about residency.

The county’s new law is intended to stop confusion about the patchwork of city ordinances by superseding them. Under the new law, offenders still may not live within 2500 feet of schools. However, it also adopts the state’s lighter 1,000-foot residency restriction for all other places where children congregate, such as parks and day-care centers. This lifts harsher restrictions on those areas imposed by many cities. The county also added a 300-foot “child safety zone” in those areas, in which sex offenders may not loiter. The hope is that this will create more areas where offenders can find indoor housing. The ACLU of Florida, which has sued the city over the Tuttle Bridge colony in the past, said the new law was a step in the right direction, but still a half measure that doesn’t fully address the problem.

I agree. The easing of the 2500-foot restriction in many cities may help open up more housing, and that’s a good thing. But the new law leaves residency restrictions intact, and even adds a no-loitering restriction, despite no evidence that residency restrictions work. Police and Fort Lauderdale sex offender registration criminal defense lawyers like me know that most child sex crimes are perpetrated by someone the victim knows; that around half of perpetrators are relatives; and that the vast majority had never been arrested for anything before the molestation began. Furthermore, virtually forcing sex offenders to be homeless makes police’s job harder by making it harder to find those offenders.

Practical arguments aside, sex offender residency requirements also create a legal and ethical problem by re-penalizing people who have already done their time. This is against the spirit of our justice system, though perhaps not the letter, and creates real obstacles for ex-offenders who are trying to move on. Under the onus of sex offender residency and registration requirements, offenders have a hard time getting an address, getting a job and building law-abiding lives. And as far as I know, our society does not impose this kind of post-prison penalty for any other crime. As a West Palm Beach sex offender residency defense attorney, I wonder if the real motivation behind these laws is vengeance rather than protection of children.

Though my work as a Miami cyber crime criminal defense attorney, I’ve encountered numerous cases involving “sexting.” In far too many of these cases, prosecutors and school officials overreact and teenagers end up criminally charged with producing and sending child pornography, even in cases where they photographed themselves and were never in danger of exploitation. Now, according to the National Law Journal, the first sexting case has hit a federal appeals court. The Third U.S. Circuit Court of Appeals is considering whether prosecutors can bring child pornography charges against three teenagers whose pictures were found by school authorities in a “sexting” bust.

The case involves two pictures. One was of two girls, 12 at the time, who were photographed wearing training bras. The other was of a 16-year-old coming out of the shower topless, with a towel wrapped around her waist. They were among 16 kids who faced child pornography charges when their mid-Pennsylvania school district uncovered widespread sexting in 2008. The district attorney said he would file child pornography charges against them if they didn’t take a class about avoiding sexual predators, then write an essay about why sexting was wrong. Most of the students agreed, but the three plaintiffs did not. In their federal lawsuit, Miller v. Skumanick, the three girls argued that the photos were not child pornography, which makes them protected speech under the First Amendment and not appropriate for prosecution.

Before the Third Circuit, the girls’ attorney, Witold Walczak of the ACLU, argued that the photos were far too tame to be considered pornography. That meant the prosecutor lacked probable cause to charge them. He also argued that child pornography laws were not meant to apply to teenagers who photograph themselves. The attorney representing the district attorney argued that the law was intended to protect kids from their own bad decisions, and from sexual predators attracted to naked pictures. The NLJ reported that the Third Circuit gave that argument a tough reception, with one judge suggesting that the class was “a particular government official’s views of what it means to be a girl in today’s society[.]”

As a Fort Lauderdale child pornography possession defense lawyer, I hope the Third Circuit’s ruling sets a precedent for sensible behavior by prosecutors and school officials. It is not a good idea for teenagers to send each other naked pictures, but criminal prosecution takes that bad situation and makes it much worse. As the ACLU attorney pointed out, child pornography laws are intended to protect kids from adults who exploit them. That concern doesn’t apply to pictures kids take voluntarily, especially self-portraits or pictures taken by peer group members. Prosecuting them for this behavior doesn’t protect them so much as it produces lifelong negative consequences for a youthful mistake.

This is not idle speculation. As a South Florida child pornography possession criminal defense attorney, I have written on this blog several times about kids who face prison time and sex offender status for sexting. They include a young man here in Florida who was kicked out of college and has trouble finding work because of a child pornography conviction related to sexting. I hope the Pennsylvania case paves the way for jurisdictions around the country to take a less life-altering approach.

As a Miami cybercrime criminal defense lawyer, I frequently defend people who are charge with possession of child pornography. In most cases, the evidence against my clients comes from images law enforcement found stored in special folders on their computers, or sometimes on other electronic devices or in their homes. However, every now and then, a defendant comes along who is accused of possessing images stored only in a “temp” or “cache” folder, where recently viewed files are stored until they are purged some time later. This is despite the fact that Florida and federal child pornography statutes require that the defendant “knowingly” possess the material. Can this type of unintentional “possession” be considered a crime?

On the federal level, the answer seems to be yes. At least three federal appeals courts have addressed the issue. In United States v. Romm, 455 F.3d 990 (9th Cir. 2006) and United States v. Bass, 411 F.3d 1198 (10th Cir. 2005), the Ninth and Tenth Circuits both ruled that defendants’ knowledge that the temporary cache existed, and attempts to erase the temporary files, was enough to show “knowing” possession. The Eleventh Circuit, which does include Florida, has indicated that it agrees. In United States v. Kain, No. 08-3396 (11th Cir. 2009), the court arguably took it even further. It wrote, “A computer user who intentionally accesses child pornography images on a web site gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses’ those images, even if he later puts the magazine down without purchasing it.”

In Florida state courts, the answer may not be as clear. In a 2006 case, Strouse v. State WL 436028 (4th DCA, 2006), the Fourth District Court of Appeal found that merely viewing child pornography is not enough to establish knowing possession of the images, even if the images are cached in a temporary folder. However, it said, when defendants try to delete or manipulate the files, this can help prove knowing possession. After that ruling, the Florida Department of Law Enforcement cautioned its officers against basing an entire case on temporary files. However, officers finding temporary files are unlikely to stop looking for stronger evidence elsewhere on the computer.

This state of affairs creates a sticky situation for Floridians whose computers may have been used to view child pornography, or may have been compromised by a virus. Unfortunately, even though our legal system promises that every defendant is presumed innocent until proven guilty, the reality is that child pornography possession defendants need a good Fort Lauderdale child pornography criminal defense attorney, as quickly as possible. In Florida state courts, defendants may be able to challenge cases based only on the existence temporary files that the defendant has not tried to manipulate. But in federal courts, district judges following the Eleventh Circuit’s instruction would be forced to treat mere viewing of files as possession, even though the user may have arrived at the site by accident and left quickly. Fortunately, as an experienced West Palm Beach child pornography possession attorney I can often find other avenues of defense for clients.

As a Fort Lauderdale child pornography criminal defense attorney, I was interested to see what may be the first large child pornography arrest in Florida of 2010. According to a Jan. 4 article in the Orlando Sentinel, Lake County authorities arrested a Walt Disney World employee Dec. 24 for possession of child pornography. James Treanor, 32, was charged with 200 counts of the crime, for possessing more than 5,000 images and 75 movies involving minors in sexual situations, many of whom reportedly appeared to be under the age of 12. Treanor told authorities that he had more, but deleted it because a friend planned to stay with him over the holidays. He is jailed with bail set at $10,000 per felony violation, which could be as much as $2 million if all of the counts are felony counts.

The newspaper said Treanor had a public defender, although that person was not reached before the article was published. I hope this attorney is prepared for a battle, because Treanor is facing serious penalties if this article is correct. Each image in the defendant’s possession can create a separate criminal count, which is likely why Treanor is charged with 200 separate counts of child pornography possession. Each of these carries up to five years in prison, which means he could be sentenced to as much as 1,000 years in prison -- effectively a life sentence. Judges have some discretion in sentencing, but public opinion is not kind to people accused of this crime. This may be especially true because he worked at Disney World, and presumably had contact with children.

One of the most difficult parts of my job as a West Palm Beach child pornography possession lawyer is to fight a premature conviction in “the court of public opinion.” Long before they get to a court of law, clients who are accused of child pornography possession and related crimes face serious, sometimes permanent consequences in other parts of their lives. This can include separation from a spouse, the loss of a job, loss of friendships and even physical attacks or intimidation. Even if the client is later found not guilty, it’s generally too late to reverse most of this damage. These attitudes can also bleed into the officially neutral justice system, which is why judges frequently have no flexibility in sentencing; defendants face lifelong sex-offender registration and residency requirements; and jurors and investigators can sometimes be prejudiced.

Of course, some people accused of child pornography possession are guilty. The goal of our justice system is to determine who is guilty and who is not, and even those accused of unsavory crimes are entitled to a fair trial. Another part of my job as a Miami child pornography possession criminal defense lawyer is to ensure that my clients get that fair trial, as far as that is possible. In some cases, that means excluding people or evidence that could prejudice the jury; in other cases, it means a full computer forensic search to find evidence that might exonerate my client entirely. Even when the system produces borderline absurd results, like a 1,000-year maximum sentence, I will fight to get my clients the fairest possible day in court.