Cyber Crime Lawyer Blog

An unusual decision to re-sentence a child pornography possession defendant caught my eye as a child pornography lawyer. According to a Jan. 28 article from the New York Times, the Second U.S. Circuit Court of Appeals has overturned a 6 1/2-year sentence for a man convicted of one count of child pornography possession. The decision does not mean that Gary Cossey will not go to prison, but he will be re-sentenced by a different federal judge after the appeals court found that the original judge’s fairness was in doubt. That judge, Gary L. Sharpe of the Albany federal district courts, reportedly gave Cossey a long sentence under the theory that he was likely to re-offend, “because of an as-yet undiscovered gene.”

Cossey pleaded guilty to one count of child pornography possession in late 2009. The circumstances of the case were not reported, but he was apparently caught looking at child pornography even after an FBI investigation. At his sentencing, Cossey said he was in therapy and finding it helpful, and his criminal defense attorney presented two psychological reports suggesting he was at low to moderate risk of offending again. Sharpe reportedly told Cossey at the sentencing that those opinions were “virtually worthless” because sexual desire for children is “a gene you were born with. And it’s not a gene you can get rid of.” Sharpe predicted the discovery of such a gene in the future. The Second Circuit sharply reprimanded the judge with a ruling saying “it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics,” and that the decision cast doubt on the fairness of the entire system.

No decision has yet been made about how long the new sentence for Cossey might be, and it’s hard to speculate without knowing the details of the case. But as a child pornography attorney, I suspect Cossey fought the 6 1/2-year sentence in the first place because it was well over what he and his lawyer expected under the circumstances. Child pornography offenses are notorious for being harshly punished, thanks in part to a “tough on crime” Congress that has given judges little wiggle room. But as this case shows, judges don’t always use their discretion correctly. Regardless of what we think of any particular crime, it cannot be acceptable for judges to sentence defendants based on their opinions about what science might find in the future. Allowing this is tantamount to allowing sentences based purely on the judge’s personal prejudices. As a child porn lawyer, I know how important it is to hold judges to a higher standard than that -- because defendants charged with child pornography and online solicitation are rarely popular.

Continue reading " Appeals Court Overturns Sentence Based on Faulty Science in Child Pornography Case " »

As a south Florida traffic tickets defense lawyer, I was very interested to read about major flaws in the red light cameras in use in Palm Beach County and many of its cities. As the Palm Beach Post reported Jan. 17, a court ruled in December that the county’s system breaks basic rules of evidence by failing to show that the drivers in question actually ran a red light. Phyllis Franklin, 50, of Riviera Beach got her ticket and dozens of others dismissed after showing that the picture of her license plate used as evidence didn’t show where or when the car was. Challenges like this have helped get dismissals for 72 percent of red light tickets generated by the red light cameras in the county. Traffic ticket attorneys said the ruling could halt or severely limit the use of red light cameras.

Franklin and other motorists in Palm Beach County are implicated by a video and photos. Most of these have a timestamp and enough context to show whether the motorist was in the intersection after the light turned red. But they don’t have the quality to show a legible license plate, so a close-up shot of the plate is also taken. That shot doesn’t have the timestamp or context -- which means it’s impossible to prove the plate belongs to the car shown in the other pictures. The situation feeds into the controversy about red light cameras, which police agencies like because they catch more offenders than human officers could, and because they typically pay for themselves. According to the article, the cameras cost $4,750 per month each, and West Palm Beach has generated $41,000 from the cameras since Oct. 1. However, critics say the cameras are cash cows disguised as public safety and violate the Sixth Amendment right to confront one’s accuser. They can also point to a 2008 study from the University of South Florida suggesting that red light cameras increase rear-end accidents.

As a Miami-Dade traffic tickets defense attorney, I’d like to add another objection: the cameras are unable to exercise independent judgment. Photos can’t be biased the way humans can, but they also can’t take into account the circumstances, and often don’t show the whole picture. They can also be adjusted, timed or interpreted incorrectly, which can and sometimes does result in unjustified tickets. And as this article shows, cameras aren’t always able to connect a license plate with a car caught violating the law. At $158 to $264 a ticket (in Palm Beach County), that’s an expensive mistake for the city government to make. In my opinion as a Fort Lauderdale traffic tickets defense lawyer, local governments should seriously consider whether the public safety benefits of red light cameras outweigh the drawbacks of falsely accusing nearly three-quarters of those ticketed. But if they want to keep the program alive, governments will have to redesign it so it meets the basic requirement to prove the accusations against motorists.

Continue reading " Flawed Technology Allows Challenges to Majority of Tickets From Red Light Cameras " »

Late last week, the Florida Supreme Court made a decision that could have an important effect on the work of child pornography defense attorneys like me. The court on Friday ordered a hearing within 60 days on whether Ronald Morel should be civilly committed for psychiatric treatment under Florida’s Jimmy Ryce Act. Morel was convicted in 1994 of kidnapping and raping a Boca Raton woman and served seven years in prison. Under the Ryce Act, the state could and did ask a court to commit him for psychiatric treatment. Defendants can fight this, and Morel has, but delays in his case have kept him in “temporary detention” for eight years in an Arcadia psychiatric facility. The high court ordered a hearing on Morel’s request for treatment as well as his contention that his rights have been violated, saying his case raises “serious concerns” about the legality and fairness of the system.

Detainees like Morel have already served their prison sentences. Once they finish, prosecutors can ask to commit them for psychiatric treatment until they are no longer a danger to society. The law requires a trial on civil commitment within 30 days, but defendants often waive that right in order to better prepare for the trial and enlist expert witnesses. The result, the Second District Court of Appeal said, is that many cases stay on hold for years. Morel’s case involves a civil commitment trial as well as a separate case arguing that his detention for eight years without a trial is unconstitutional. His defense attorney says he wants treatment -- which he can’t have until he’s formally committed -- but does not want a trial that could lock him up for the rest of his life. The prosecutor says Morel himself is responsible for many of the delays. The Sarasota Herald-Tribune added that the case was delayed by three years without action from prosecutors; a mistake by the clerk’s office; and possibly by a defense lawyer who has gotten complaints of neglect at the Florida bar.

The Jimmy Ryce Act, named for a nine-year-old boy who died at the hands of a sexual predator, allows commitment of anyone who was imprisoned for a sex offense and deemed a potential re-offender. That’s why this is important news for sex crimes defense lawyers and child solicitation lawyers. Under the Bill of Rights, everyone has a right to a speedy and fair trial. That includes people who committed very serious crimes that society reviles. Sex offenders are not popular, and locking them up indefinitely without trial may play well with voters -- but they have the same constitutional rights as everyone else. As a child pornography defense attorney, I’m pleased that the state Supreme Court is considering the rights of Morel and other detainees, who could number in the hundreds.

Continue reading " Florida High Court Orders Hearing for Sex Offender Detailed Eight Years Past Sentence " »

As a Miami-Dade drunk driving criminal defense attorney, I was interested to read about dropped charges for a nightclub promoter and real estate developer. Michael Capponi, who promotes nightlife events around South Beach, was arrested in late October for allegedly driving under the influence, according to the New Times Miami. Under the influence of what, however, was difficult to say because his blood-alcohol concentration readings were reportedly under the 0.08 legal limit and a urine test came back clean. Capponi has said publicly that he believes the arrests were connected to his acknowledged past as a heroin and methadone addict.

Capponi was arrested early in the morning of Oct. 22 after leaving a party. According to a New Times Miami blog post from the time, he was pulled over and then held for nearly 24 hours on bail of $1,000. On his release, he sent a statement to the media saying police told him he failed field sobriety tests. He said he blew a 0.06 BAC both times he took a breath test, only to have the officer insist that he must be on drugs. He voluntarily took a urine test, he said, but was kept overnight despite his cooperation. His statement said he was planning legal action against the police. In the more recent blog post, Capponi’s south Florida DUI defense lawyer said the urine test showed no drugs and that prosecutors should have waited for those results, as he said they normally do.

Of course, no one can tell us what the officers and prosecutors were thinking except those individuals. But as a Fort Lauderdale intoxicated driving criminal defense attorney, I suspect Capponi and his lawyer are right that Capponi’s past influenced their decisions. Police officers may have genuinely believed Capponi didn’t pass field sobriety tests -- especially since those tests are known to be unreliable -- and jumped to conclusions. However, those conclusions shouldn’t have survived even after the police received the contradictory evidence provided by the breath and urine test results. This situation shows that police officers and prosecutors absolutely do make mistakes -- and that sometimes, innocent people are criminally charged as a result. That’s why no one charged with a DUI in south Florida should plead guilty just because they believe the evidence against them is solid.

Continue reading " Prosecutors Drop DUI Case Against South Beach Nightlife Promoter Michael Capponi " »

As a cyber crime criminal defense lawyer, I was interested to see an arrest of two teenagers here in Florida for alleged cyberbullying. The Naples News reported Jan. 13 on the arrests of 16-year-old Taylor Wynn and 15-year-old McKenzie Barker, both girls, on charges of aggravated stalking of a minor under 16. The two allegedly created a false Facebook page for the victim, who is not being named, showing her head “Photoshopped” onto a sexually explicit picture. This violates state cyberbullying laws, including the Jeffrey Johnston Stand Up for All Students Act, which strengthened criminal laws after the 2005 suicide of a Cape Coral teenager who was bullied. Wynn and Barker were sentenced to 21 days of home detention and will be arraigned Feb. 8.

The article quoted at length from a police interview with Taylor Wynn and her mother. Taylor said she used to be friends with the victim but was not anymore. She said she created the page because nobody liked the victim and she thought it would be funny. After the photo and comments about sex appeared on the fake Facebook page, the victim reportedly suffered ridicule and teasing. The page had 181 “friends” as of the article’s publication. The Lee County Sheriff’s Office said it got access to the page with help from other teenagers and traced it to an Internet addressed owned by Taylor Wynn’s mother. They also found text messages about the page sent between Wynn and Barker. A spokesperson for the school district said the felony arrests could cause the district to move the two girls into alternative schooling.

I hope the penalties are not so severe. As a cyber crime criminal defense attorney, I think this charge may be inappropriate for the situation. Like child pornography laws, Florida’s “cyberstalking of a minor” statute was likely written with adults offending against juveniles in mind -- not juveniles offending against each other. This is not to say that the girls shouldn’t be in any kind of trouble -- but the criminal charge they face is a third-degree felony, opening up the possibility that these girls will go to juvenile detention or even adult prison. In addition, the girls would also have a felony conviction hanging over their heads as they enter adult life, which can take away opportunities like student loans and military service. That’s why, as a cyberstalking criminal defense lawyer, I believe it’s best to handle student-on-student crimes through the schools whenever possible. When cases do enter the court system, I advocate for a response that takes into account the teen’s age and potential for rehabilitation.

Continue reading " Florida Teenagers Face Aggravated Stalking Charges for Alleged Facebook Bullying " »

A prosecution out of Detroit isn’t getting much attention here in south Florida -- but as a Miami-Dade prostitution criminal defense lawyer, I’m very interested. According to the Miami New Times, Michigan authorities are prosecuting Gregory Carr, his ex-wife, Laurie Carr, and three other people -- all from south Florida -- for running a high-priced prostitution business named Miami Companions. A federal judge has agreed to let Gregory Carr’s attorney review a 30,000-name database of clients that’s currently in prosecutors’ possession, so that he can build an adequate defense. Reportedly, the database contains some information about customers’ sexual preferences as well as their names, jobs and contact information. The move has raised concerns about the privacy of those customers, who are not currently being prosecuted.

Miami Companions was set up as a high-end dating service, but reportedly charged as much as $500 an hour for sexual services. Though it was based in Miami, it did business around the world. Michigan authorities uncovered the business last summer and brought charges against the Carrs and three employees. Gregory Carr is charged with 11 counts of conspiracy to coerce and entice prostitution, coercion and enticement of prostitution and money laundering. His Florida prostitution defense attorney asked the judge earlier this month to order prosecutors to share the client database so they could prepare for trial. Prosecutors opposed this, saying they believe Carr was trying to embarrass past clients because they are also potential witnesses. The judge released the database, but ordered that the attorney be given only a paper printout of the clients with area codes from greater Detroit. That printout must be returned to prosecutors at the end of the case. The attorney may also review the entire electronic database at an FBI office in Tampa, but not take a copy home and return any notes at the end of the case.

As a Fort Lauderdale prostitution criminal defense lawyer, I hope this compromise allows Carr to defend himself adequately against the very serious charges he faces. In this case, the rights of the defendant -- who has a legal right to access to the information being used against him -- are at odds with the rights of the people on that client list. Those individuals are not currently charged with crimes and may never be, making their identities none of the public’s business. In fact, even if they are charged with crimes, the information on their preferences wouldn’t be necessary, or tasteful, to release to the public. In fact, being identified as a client could destroy relationships and careers for some -- which is why I wouldn’t be surprised to learn that clients have retained defense attorneys of their own.

Continue reading " Judge in Miami Prostitution Case Rules Defense May Have Limited Access to Client List " »

A recent blog post by forensic consultant Paul Laska has valuable information for criminal defendants throughout florida and for south Florida criminal defense attorneys like me. In this post, Laska explains a change in policy for the International Association for Identification, which is the professional organization serving forensic fingerprint specialists. Last July, the IAI removed its ability to sanction specialists who make faulty identifications. As a result, there isn't much but professional pride to keep specialists from putting forth uncertain, sloppy or biased work as scientific and accurate. This has bad implications for both prosecutors and Miami criminal defense lawyers, who can't rely on fingerprint identification with the same confidence as before. In my own practice, I expect to rely more heavily than before on forensic specialists who can give their own opinions on the accuracy of a fingerprint identification, to defend clients who may be victims of false identification.

Continue reading " Lowered Standards for Identification of Fingerprints " »

A child pornography case out of Oregon caught my eye as a child pornography attorney, because it was a rare victory for someone accused of a child porn crime. The Oregonian reported Jan. 6 that the Oregon Supreme Court has ruled that computer users commit no crime by merely looking at images of child pornography, unless they download, pay for or print out the images. The 5-2 ruling overturns the conviction of Barry Lowell Barger on eight counts of encouraging child sexual abuse (an Oregon state crime). He will remain in prison on a separate 25-year sentence for sexually abusing two children under age 12. However, the ruling has wide implications for child pornography defendants in Oregon, and may also affect defendants in other states with statutes worded similarly to Oregon’s.

The case turns on Oregon’s state law against “encouraging child sexual abuse,” which forbids knowingly possessing or controlling child pornography, or knowingly paying to obtain or view such material. In Barger’s case, it’s not disputed that he didn’t pay for the pornography. Police officers investigating the child molestation case visited Barger’s home, where his wife told them Barger had “weird” material on his computer. They looked into his Web browsing history and found that he’d visited some websites with sexual pictures of girls in their early teens and younger. Some such pictures may have been stored automatically by the computer. That was the basis for the charges of encouraging child sexual abuse. The trial court in Barger’s case decided that he had “possession” because he could have printed, saved or otherwise controlled the images, and an appeals court agreed. The high court, however, said Web browsing was more like “walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them.”

This ruling applies only to Oregon, of course. It also won't affect Florida, where courts have ruled that merely viewing child pornography -- as established by the temporary files stored in the user's "cache," may be enough for a possession charge. An experienced child pornography possession lawyer may be able to argue that there's no possession if the user was genuinely unfamiliar with computers -- but any attempt to clear the cache or otherwise delete temporary files can be taken as evidence of knowing possession. Police officers and prosecutors who understand the difference between intentionally saving files and the temporary Internet file folders created by a Web browser may try to charge an individual with possession without actually proving knowledge of the user's actual possession. For example, prosecutors might argue that the user exerted dominion and/or control over the images/knew of their existence on the computer, albeit temporarily. That's why it's important to hire an experienced child pornography possession attorney in such a case, so that you can ensure your rights are not violated.

Continue reading " Oregon High Court Rules Viewing Child Pornography Online Is Not Possessing It " »

An arrest in a high-profile fatal car wreck caught my eye as a Miami-Dade drunk driving criminal defense attorney. According to the Miami Herald, police have arrested Cedric Williams, 48, on suspicion of causing a crash that killed three people and seriously injured a fourth. Williams is accused of running a red light just before 4 a.m. on Jan. 2, smashing his van into a Honda Civic and leaving the scene. The crash killed Robbie Wissler, 25, Lindsey Ellen Ennis, 20, and Kayla Elizabeth Bain, 19; and sent Robert Judd, 69, to the hospital with serious injuries. Wissler was a recent transplant to Florida, entertaining visitors Ennis and Bain and family friend Judd.

Williams has a long arrest record and has been to prison ten times, most recently on charges of selling cocaine. Police say they got a call shortly before the crash about a man matching Williams’ description driving erratically. After the crash, Williams reportedly left the scene on foot despite minor injuries and paid a passing driver $20 for a ride. Miami police officers arrested him after a standoff at his home. Once in custody, he admitted to the police that he had been drinking, ran a red light and left the scene because his license was suspended. He waived his right to an attorney and reportedly cried as he described the accident. Currently, the charges against him include four counts of leaving the scene of an accident with death or serious injury and one count of driving with a suspended and expired license.

Anyone in the position Williams is now in would need a south Florida DUI criminal defense lawyer. But from the description in this article, I believe Williams needs help very quickly. When you are accused of a very serious crime like this one, the best thing you can do in your own defense is keep quiet until you can get advice and representation from an experienced attorney. By telling police his story, Williams is giving them information they may not get on their own and undermining any defense he may need to put together later. Waiving his right to an attorney guarantees that he won’t be able to get that help soon. Even in situations where the client genuinely feels remorse -- as this article suggests William does -- and wants to plead guilty, an experienced Fort Lauderdale intoxicated driving criminal defense attorney can still help negotiate fair and lenient penalties.

Continue reading " Suspect Admits to Drinking and Driving on Suspended License in Fatal Hit-and-Run " »

A recent ruling by a Florida court of appeal caught my attention because it’s relevant to my work as a south Florida cyber crime criminal defense lawyer. As the Associated Press reported, the First District Court of Appeal ruled Dec. 21 that evidence of child pornography possession could be used against James Linn Higerd, even though the evidence came from a search intended to find only things that might be dangerous on an airplane. The ruling (PDF) is the first of its kind in Florida and much of the nation, but courts in Hawaii and Ohio have found that such searches are unreasonable under the Constitution. Higerd pleaded no contest to 194 counts of possession of child pornography and is currently serving 2.5 years in prison, but reserved his right to file this appeal to the search.

Higerd was passing through Pensacola Regional Airport when his checked bag was selected for a physical search, although the X-ray scanner turned up nothing suspicious. The TSA agent searching it found physical photos that depicted child pornography, leading local law enforcement to search Higerd’s computer and find more. In his appeal, Higerd argued that the TSA’s physical search of the bag violated his Fourth Amendment right against unreasonable search and seizure. Because the TSA has the technology to look for contraband without opening bags, he argued, the search was not “minimally invasive” as required. The First District disagreed, saying the TSA agent was following TSA protocol for seeking out weapons and explosives. Unlike in the Ohio and Hawaii cases, the court said, the agent was not intentionally looking for evidence of any other type of crime.

The article quotes a travelers’ group that disagrees with this ruling, calling it “a continuing assault on the Fourth Amendment rights of travelers.” As a Miami cyber crime criminal defense attorney, I also have reservations about this ruling. The question is not whether the search of Higerd’s luggage violated TSA protocol; it’s better to ask whether TSA protocol violates the Fourth Amendment. I suspect the answer depends on whether explosives could reasonably be found in a sheaf of papers. The Fourth Amendment is not just window dressing; it provides the main bulwark against overreaching by law enforcement officers. In my work as a Fort Lauderdale cyber crime criminal defense lawyer, I’ve seen other cases where officers eager to find a crime overstep the bounds of privacy or reasonable suspicion. As more and more airport searches turn up evidence of crimes unrelated to terrorism, I hope most courts do not follow the First District’s example.

Continue reading " Florida Appeals Court Upholds Airport Search That Found Child Pornography " »