Cyber Crime Lawyer Blog

As a Miami-Dade cyber crime criminal defense attorney, I was interested to see a recent article about a similar situation, in which the officer was posing not as a child but as a parent willing to sexually exploit a child. The South Florida Sun-Sentinel reported Nov. 23 on the arrest of Thomas Winters, a retired Cooper City police officer accused of using a computer to solicit a parent to engage a child in sexual activity, as well as obscene communication to a minor. Winters is being held in Volusia County Jail in Daytona Beach, because the “parent” came from that area.

According to the article, Winters, 64, thought he was chatting online with a parent of a 7-year-old girl. Law enforcement officers say Winters also thought the “girl” was watching through the webcam. They say he exposed himself over the webcam, thinking the girl could see, which gave rise to the charge of obscene communication to a minor. He then asked the “parent” to perform similar acts with the child on the webcam, violating Florida’s law against online solicitation of a minor. That law includes solicitation of someone believed to be an adult parent, guardian or custodian to allow a child to engage in sexual conduct. Law enforcement later searched Winters’s home and seized his computer equipment and digital media storage to look for evidence.

Unfortunately, much of this is old news for Fort Lauderdale cyber crime criminal defense lawyers like me. Florida law is written specifically to preclude defendants in this type of crime from arguing that there was no crime because the child or parent was really an undercover police officer. Thus, the fact that no child was ever in danger doesn’t matter -- all that matters is whether the prosecutors can prove that Winters’s behavior met the requirements of the law. From the article’s vague description, it’s possible that his request didn’t meet the legal definition of sexual conduct. But even if that’s true, this type of argument would be an uphill battle in any case involving child sex crimes, which is why it’s essential for defendants like Winters to hire a West Palm Beach cyber crime criminal defense attorney as early in their cases as possible.

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As an Orlando child pornography criminal defense attorney, I was very interested in a recent article suggesting that a Florida man may face violations of his Fifth Amendment rights in a trial on child pornography charges. Florida Today reported Nov. 18 on the Orlando federal trial of a Brevard County man who was already convicted in state court of molesting his adoptive daughter and taking pornographic pictures of her. Robert Howard reached a plea bargain with Brevard County prosecutors in 2009 on one count of sexual battery to a child and one count of possession of child pornography. However, he could have faced more than ten times as much prison time if he had been tried, the article said, which upset the victim, her legal guardian and other observers. This may have been the basis for the federal government to bring charges for the same conduct.

Howard and his wife were foster parents for at least 36 children from 2000 to 2002, but their license was revoked in 2003 after allegations of locking children up were substantiated. Two months after the license was revoked, the biological mother of two former foster children dropped them off at the Howards’ home. Despite the revocation, the Howards got permission to foster and then adopt the children, both girls. In 2005, Howard’s adult stepson called DCF to report physical abuse and suspicions of sexual abuse of one of the daughters, then 12. The girl told investigators that Howard had showed her pornography and asked her to flash him. After an investigator found multiple pictures of the girl, partially undressed, on Howard’s computer, she told the police he had molested her many times. He was arrested on 70 counts of sexual battery on a child and several child pornography counts, with a maximum sentence of life in prison.

Nonetheless, the article said, the state’s case against Howard was weak. According to documents from the state case, the victim had alleged abuse by past foster parents, but investigations by DCF found that the allegations were not true. This would have weakened her credibility in court. The head of the Sex Crimes Division for the State’s Attorney’s office said the evidence did not support the life sentence the victim wanted. As a result, the state agreed to four years in prison and a lifetime of sex offender restrictions on Howard, who was labeled a sexual predator. The victim and her guardian are upset that they were not consulted on the plea, which one attorney said was required by Florida’s Constitution. Documents suggest that investigators felt the same. The U.S. Attorney’s office in Orlando specifically cited the state court’s failure to hand down a stronger sentence when it started the new child pornography case against Howard, which could get him up to 10 years in prison.

Howard’s attorney is reportedly objecting on the grounds that Howard should not be tried for the same crimes in both state and federal court -- indeed, he is arguing that he was told he would face no federal charges if he took the plea bargain, though the state denies it. As a West Palm Beach child pornography criminal defense lawyer, I am interested because the double prosecution may violate Howard’s Fifth Amendment right against double jeopardy. The Constitution says no person may be subjected to prosecution for the same penalty twice. Incredibly, courts have found that this does not always apply to dual prosecutions in state and federal courts. However, in making that decision, the courts have also said a dual prosecution violates defendants’ rights when it is “a sham on behalf of the sovereign first to prosecute.” That is, if the federal government is prosecuting on behalf of the state government, it is probably violating the Fifth Amendment right against double jeopardy.

Judging by the facts in the article, Howard can probably make that argument. After all, the U.S. Attorney’s office is quoted as saying “If the defendant had been convicted on that charge [capital sexual battery] and received the mandatory imprisonment sentence of life, Wilson would not have proceeded on the federal case for possession of child pornography.” As a Miami-Dade child pornography criminal defense attorney, I think that’s a clear indication that the federal government is prosecuting at the behest of the state government, which apparently is unhappy with the way it handled the case the first time around. If that’s the case, this prosecution may be nothing more than an end-run around Robert Howard’s Constitutional rights. We may not approve of Howard’s actions, but the rule of law and civil rights should not have exceptions, even -- or especially -- when the defendant is accused of especially heinous and widely reviled crimes.

Continue reading " Man Faces Federal Trial on Child Porn Charges Despite Conviction on State Charges " »

A recent item in the Palm Beach post caught my eye as a West Palm Beach cyber crime criminal defense lawyer, because it grew out of “sexting” at local schools. According to the Nov. 3 article, the Palm Beach County school board has settled a lawsuit from a former administrator for $1,500. The former administrator, Thomas Hawkins, accused the school board of retaliating against him for reporting student “sexting” at a middle school to law enforcement authorities. The school district had previously declined to report the sexting. The settlement was 10 percent of what Hawkins had originally requested in his lawsuit, suggesting that his case was not strong enough to net him the full amount requested in a trial. In fact, the article said the attorney for Hawkins couldn’t find the evidence to make a strong case, but it was unclear whose opinion that was.

Hawkins was an administrator at Gold Coast Community School in April of 2009 when he reported the alleged sexting. He wrote to the district that students at Lake Shore Middle School were taking pictures of themselves naked in school bathrooms, with captions offering sex for money. It was not reported how he knew this, but the article does note that he had worked at Lake Shore previously. In his lawsuit, he alleged that Lake Shore’s principal never reported the sexting to authorities, as required by Florida law. Hawkins responded by reporting the sexting himself. He claimed that after the reporting, the district retaliated against him by not renewing his contract and making him ineligible for more administrative work with the district, He has taken a lower-paying job as a teacher at Spady Elementary in Delray Beach, which is also part of the Palm Beach County school district.

Lawsuit settlements are not directly part of my work as an Orlando cyber crime criminal defense attorney. But I’m interested in this case because it’s strongly connected to criminal laws -- laws against child pornography, which are used in sexting cases, and penalties for school administrators who fail to report child abuse or juvenile sex offenses. We can’t say for sure, but let’s assume the article is correct that Hawkins didn’t have a strong case. It’s possible that the school administrators disagreed that there was anything to report to begin with. Sexting is not child abuse as it’s generally understood -- unless you think kids can abuse themselves -- and legislatures across the U.S. are debating whether sexting should be considered a juvenile sex crime. It’s also possible that there was no sexting, or no proof of it. Any of these would explain why administrators took no action -- and why DCF and the state’s attorney’s office apparently did not find anything newsworthy, if they investigated.

Different parents handle this sensitive issue in different ways. But if there was sexting, and the school district declined to treat it like a crime, I applaud. As I’ve written here many times in the past, I do not believe that sexting by teenagers should be penalized and prosecuted as if it were exploitive child pornography. A nude self-portrait by a 13-year-old may technically be child pornography, but it’s very far from the kind of child pornography produced by adults using force, fear or deception on children. By reporting the sexting to authorities, the district would have been inviting them to get involved, with potentially life-altering results for the students involved. If they were criminally charged with making child pornography, the young teens could have faced serious time in juvenile facilities or prison and lifelong sex offender registration.

These penalties are ludicrously disproportionate to the harm these kids could have caused (mainly to themselves) by sexting. In fact, Palm Beach Country legislators have already recognized this and proposed a bill that would treat sexting teens differently from adults, though still with criminal penalties. That’s why, as a Fort Lauderdale cyber crime criminal defense lawyer, I’m glad that there was ultimately no report about a criminal investigation of these kids. I hope that, if the district did indeed choose not to report sexting to the authorities, it did so with the intention of protecting these kids and their futures. Sexting is not appropriate behavior for school, but with the stakes so high, it’s much better for schools and parents to handle it without bringing in criminal authorities.

Continue reading " Former School Official Gets 'Nuisance Settlement' in Lawsuit Over Student Sexting " »

More than a year ago, I wrote on this blog about the conviction of John Stelmack, a school principal in Bartow, on child pornography charges. The case caught my eye as an Orlando child pornography criminal defense lawyer because it presented an unusual question: Can images be called child pornography if they are images of adult women with children’s heads pasted on top? Not surprisingly, lawmakers hadn’t considered this possibility when writing child pornography laws, and the Stelmack case was the first I had heard of in Florida presenting the question. To make matters worse, Stelmack had used pictures of two children he knew personally at elementary schools where he had worked, and was already under investigation for inappropriate hugging.

At the time of his June 2009 trial, Stelmack argued that his images were not really child pornography. He was convicted, but he appealed to Florida’s Second District Court of Appeal, making the same argument. That court heard his case in mid-October, as the Ledger of Lakeland reported. Before the court, Stelmack’s criminal defense attorney argued that the images did not fit Florida’s definition of child pornography -- “any image depicting a minor engaged in sexual conduct” -- because the images did not depict children’s bodies. The state’s attorney on the case disagreed, saying Stelmack’s purpose in creating the images was to objectify real children by showing them in a form of sexual behavior. Stelmack is currently serving five years in prison with ten years of probation, and courts have not granted his requests to be released while his appeal is heard. The appeals court didn’t say when it would rule.

Last year, I wrote that in my judgment as a Miami-Dade child pornography criminal defense attorney, Stelmack’s images don’t meet the definition of child pornography. This is a difficult case, because the images sound very disturbing. The parents of the children whose heads are in the pictures (who are not identified) undoubtedly feel strongly about this, along with other parents at his former school. It’s easy to see why a jury would vote to convict in this situation. However, his actions as reported do not appear to clearly meet Florida’s legal definition of child pornography -- and the law is what controls things in appeals courts. In fact, this issue has already arisen in federal law, which most recently led to a law specifically outlawing obscene depictions of minors appearing to engage in sexual conduct. This law left open the possibility of non-obscene images, which could include, for example, Renaissance art or scenes from movies.

However, this is a federal law, and Stelmack is being tried in Florida state court. Florida law does not explicitly forbid artistic or altered depictions of children involved in sexual conduct. However, it does include simulated intercourse in its definition of “sexual conduct,” and child pornography again is “any image depicting a minor engaged in sexual conduct.” The question is, is nudity by itself sexual conduct, and is pasting a head onto a clearly different body enough to depict sexual conduct? As a West Palm Beach child pornography criminal defense lawyer, I hope the appellate justices are giving those questions serious thought. This case may be unsavory, but as our justice system recognizes, people involved in unsavory cases have the same rights as every other defendant. In Stelmack’s case, that means fair consideration of whether his actions actually broke the law he’s accused of breaking.

Continue reading " Florida Appeals Court Considers Whether Photoshopped Images Are Child Pornography " »

Pop quiz: If you are arrested, what should you say to the police?

a) Explain why you are innocent.
b) Confess, if you are guilty.
c) Identify yourself, then say nothing more.

Some defendants may be surprised to find out that the answer is c) -- regardless of whether you committed the crime you’re accused of. In fact, as a West Palm Beach criminal defense lawyer, I advise all of my clients to politely decline any questions from police until I can get there. Doing otherwise can lead to big trouble -- a criminal conviction, new charges, implicating someone who you'd like to protect. In fact, two recent Supreme Court cases have dealt with cases that could have been tainted by failure to explain that the defendants had the right to stay silent. In this post, I’d like to discuss why that’s one of the most important rights available to anyone who is suspected or accused of a crime.

Fundamentally, you should never talk to the police because talking to the police can’t help your case. That’s true regardless of whether you are guilty. But let’s say you’re not guilty of the crime they’re asking about, so you think it’s okay to tell them whatever you know. This is bad because:

• The police are not interested in proving that you’re not guilty -- their job is to get a confession. Their job makes them suspect that anything you say is a lie unless it fits with what they know or think they know.
  
• Police interrogations are designed to be stressful, to make it harder to think about your answers and remember your rights. This makes it easy to contradict yourself by accident or even say things that aren’t true. In fact, the Innocence Project, which uses DNA evidence to free people who are in prison for crimes they didn’t commit, found that a quarter of its clients had confessed -- even though scientific evidence proved they were innocent.
  
• By giving the police more information about yourself, you’re giving them reasons to blame the crime on you. For example, if you say you don’t like your neighbor’s loud dog, they could decide that’s a motive for the neighbor’s murder.
  
• Any time you make any statement, it can be compared with something you said earlier or something you say later. If those things seem to contradict each other, the police can call you a liar in court. This actually happens, even with small, unimportant statements or with details no one could reasonably remember.
  
• Any statement you make, even a true statement, can be contradicted by a witness who is lying or remembers wrong, or by faulty physical evidence.
  
• You could inadvertently confess to something else. There’s no guarantee that the police are interested only in the events you think they’re interested in.
  
• If you talk to police officers without a non-police witness or a recording, you have no guarantee that the officers will remember the interrogation the same way you did. Even if you say nothing to incriminate yourself, they could remember a detail differently and make you look like a liar. More rarely, officers can lie intentionally.
  
• Even if officers do listen and believe the evidence supports your story, they cannot testify at trial about what you said. Under a legal rule called the hearsay rule, no one can testify that something is true without direct, firsthand experience.

Many of these objections also apply to people who are guilty and want to confess. For example, let’s say you confess in the interrogation room that you did kill your neighbor’s dog. That’s not the same as confessing that you killed the neighbor, but if there was no recording of your confession, you have no way to prove that. Furthermore, with the help of Miami-Dade criminal defense attorney, you can use a guilty plea to negotiate a lighter sentence, lower charges, immunity or a chance to pay restitution. You won’t have that opportunity if the police have a confession on record before charges are even filed.

The best way to avoid these problems is to have an Orange County criminal defense lawyer like me present to protect your rights. As an attorney, I know the law, so I can object to questions and interrogation tactics that violate my clients’ rights. I can tell clients which questions shouldn’t be answered. And I can help clients use the information they do have to get the best possible outcome, whether that means a not guilty verdict or a plea deal. As a client, your job is to ignore police questions, pressure and intimidation tactics until I can get there. You can should identify yourself and be polite, but your answer to every other question should be “I can’t answer that without a lawyer.”

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