Cyber Crime Lawyer Blog

Last fall, I wrote about Michael Reichert, a former University of Central Florida professor accused of possessing 138 images of child pornography. The case caught my eye as a child porn attorney in part because Reichert was the one who brought the images to the attention of UCF computer technicians. He brought his computer to the technicians, saying the machine had images of child pornography on it, possibly because of a virus, and he would like it to be gone. When technicians confirmed the images were child pornography, they reported the matter to police. Now, the Orlando Sentinel reported Feb. 21, prosecutors in Orange County have dropped all charges against Reichert, saying they cannot prove the images belonged only to him.

Reichert was an assistant professor of political science at UCF when the incident occurred. He spent about two weeks in jail before he could make bail and be released. At the time, authorities said they had discovered that 132 of the 138 images had been backed up to a handheld device of some kind, under the name “reicher.” As a result, Reichert was charged in 2007 with 138 counts of child pornography possession. Nonetheless, Reichert and his criminal defense attorney maintained that he didn’t know how the images got to his computer. It’s not clear whether the prosecution or the defense investigated Reichert’s statement that it may have been a virus, but the Sentinel quoted a spokesperson for the State’s Attorney’s office saying prosecutors couldn’t prove Reichert was the sole owner of the images. Reichert no longer works at the university.

As a child porn lawyer, I’d be interested to know the story behind the prosecution’s change of heart in a case now nearly four years old. The computer with the offending images was a laptop, so it’s not unreasonable to believe it may have been physically in someone else’s hands, with or without Reichert’s permission. There’s also the question of whether Reichert was hacked, which actually can happen; the child pornography community sometimes takes over computers remotely in order to store images in a safe — for them — place. Prosecutors must prove cases beyond a reasonable doubt in order to put someone in prison, so if they believed there was a serious question about whether Reichert owned the images or knew about them, dropping the case was the right thing to do. As a child porn attorney, I think it’s unfortunate that his name is now linked with child porn, something that will undoubtedly lead to trouble finding jobs and other social stigma problems even if he is ultimately cleared of suspicion.

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On this blog, I wrote a few weeks ago about the problems Palm Beach County has had collecting on its red light camera tickets. Courts in that county have ruled that the photos and video generated by their system are not sufficient to show that a crime was actually committed. As a result, a majority of tickets have been dismissed in court, and south Florida traffic ticket defense attorneys say the system may not be sustainable. Now, the South Florida Sun-Sentinel reported Feb. 19, Broward County officials are reporting similar problems. The cost of defending the tickets in court, and the dismissal of some tickets, has eaten into the revenue municipalities were expecting, and some representatives in the state Legislature have proposed ending authorization for any red light camera programs at all.

Red light cameras were sold to municipalities and voters as a revenue generator, as well as a way to stop the dangerous practice of running red lights. But according to the article, some cities are actually spending more money defending red light camera tickets than they are taking in in fines. The costs come in part from the time of city attorneys and law enforcement officers who must appear in court. Tickets are also being dismissed in court because the evidence automatically generated by the cameras is considered unreliable, and therefore not admissible, by some judges. Tickets for turning right on red without stopping, for example, are reportedly very difficult to prove. Courts have also asked for evidence showing that the car hadn’t already entered the intersection before the light turned red. As a result, at least three municipalities are waiting on installing their own camera systems, although others are going forward with theirs.

As a Miami red light camera lawyer, I’m pleased to see that cities are rethinking whether red light cameras are a good idea. This article only scratches the surface of the evidence problems the cameras can create. Without the human judgment of a human law enforcement officer, cameras miss a lot. For example, a still photo can’t reliably capture whether the vehicle entered the intersection before the light turned red; a video might, if the camera were pointed in the right direction. In addition, as I wrote last month, safety studies have found that red light cameras can actually increase the number of rear-end accidents, by giving drivers an incentive to stop short for yellow lights. An experienced Fort Lauderdale traffic tickets attorney like me may be able to find other problems with the evidence — and without evidence, the city has no case. If the revenue doesn’t add up and neither do the safety claims, the state should consider whether red light cameras are really in the public’s best interests.

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One of the many things that separate child pornography crimes from other crimes is the federal government’s ability to preemptively take down sites accused of involvement in child pornography. As with defendants in federal drug crimes, racketeering and certain other crimes, child pornography defendants may have their assets seized with no more authority than a search warrant they are not notified about or allowed to fight. Civil libertarians and child porn attorneys like me question the constitutionality of this practice — and more fuel was added to the debate earlier this month when the federal government wrongly seized 84,000 websites hosted on mooo.com.

The Department of Homeland Security apparently wrongly believed that mooo.com was involved with storing, displaying or selling child pornography, and seized it along with the nine other suspect domains. According to a Feb. 18 story in The Register, mooo.com is used by the registrar FreeDNS to direct Internet users to 84,000 domain names, most of which are websites owned by individuals and small businesses. Because of the DHS mistake, visitors to any of those sites on the night of Feb. 11 would have found not the sites they expected, but a redirect to a banner saying the site had been seized by DHS under the federal law that allows the government to seize property used in a crime. It then displayed this message:
“Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

According to PC World, DHS didn’t reverse its incorrect seizure until the evening of Feb. 13 — about two days later. At that time, FreeDNS wrote that for technical reasons, it would likely take another three days for the change to be reflected all across the Internet. Thus, it was as many as five days before the incorrect child pornography accusations disappeared from the sites. A spokesperson for the Electronic Frontier Foundation told The Register the restraint on free speech was likely to be illegal under current court rulings.

As a child pornography lawyer, I think this case is a fine example of why secret search warrants are a terrible idea. By seizing first and double-checking later, DHS wrongly accused 84,000 people and small businesses of involvement in child pornography. Law enforcement officers make mistakes at work just like everyone else, of course. The civil forfeiture laws use judges to review search warrant requests as a safeguard — but those judges can only work with the information the mistaken officers provided. During the two to five days the DHS message was on their sites, all of the visitors — who could have been a handful or thousands of people — would have seen a message implying that they were involved in child pornography crimes. As a child pornography attorney, I know from experience that a mere accusation of this serious crime can quickly lead to a “conviction” in the court of public opinion, broken relationships and even firings. With that much at stake, I believe our system can and should do better.

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A DUI for a local celebrity caught my eye as a south Florida drunk driving criminal defense attorney. As the Miami Herald reported Feb. 14, former Dolphins player Bob Kuechenberg, 63, was arrested Saturday for allegedly causing an accident while under the influence of alcohol. Kuechenberg, of Fort Lauderdale, is accused of swerving into another driver’s car on Interstate 95, causing a sideswipe crash with property damage but no injuries. Responding troopers measured Kuechenberg’s blood-alcohol content at 0.127 and 0.122, both well above the 0.08 legal limit. He is charged with a second-offense DUI, DUI with property damage and improper passing. His previous DUI conviction came from a no-contest plea in 1994. In 1993, Kuechenberg pleaded guilty to reckless driving after being charged with DUI. Neither incident led to injuries.

Kuechenberg, known as “Kooch,” was a lineman for the Dolphins who started four Super Bowls and was part of two championship teams. The crash leading to his arrest happened at about 9:30 p.m. on Feb. 12. According to the Herald, Kuechenberg was just south of Commercial Boulevard on I-95 when he swerved into another lane and hit the right side of a car driven by Jose Median. Kuechenberg did not stop to acknowledge the accident, so Median followed him and flashed his lights to get him to pull over. Kuechenberg’s Volvo apparently had major damage to its front left side. Police responding noticed that Kuechenberg had a red face and watery, bloodshot eyes, smelled of alcohol and slurred his speech. He agreed to perform field sobriety tests but couldn’t keep his balance. He was arrested and eventually freed on bail the next night.

As a Miami-Dade DUI criminal defense lawyer, I hope Kuechenberg has an attorney. Everyone charged with DUI should have legal help, but it’s especially important for celebrities, because public interest unfortunately ensures that their cases will be watched in the media. That’s bad news when it puts pressure on prosecutors to prove that they’re not going easy on the famous person, because they often take it too far the other way. The standard penalties for a second drunk driving conviction are already very serious; Kuechenberg is facing a license suspension of six months to a year, probation for the same time range, possible jail time, an ignition interlock device, impoundment of his car and DUI school. Prosecutors interested in “making an example” of him might push for the upper range of penalties – but that’s not usual in a case where the prior DUI was 17 years ago. As a Fort Lauderdale intoxicated driving criminal defense attorney, I hope Kuechenberg has an experienced advocate to remind the court of this, if necessary.

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I’ve written here several times in the past about the issue of sexting among teenagers. From my perspective as a child pornography criminal defense attorney, I don’t believe teens should be prosecuted under child pornography laws for sexting, since those laws are typically designed for hardened adult criminals, not kids who made a dumb mistake. I’m pleased to say that in the early part of this year, more and more state legislatures have proposed bills that would draw that distinction, removing penalties or lowering them for kids caught sexting other kids. Proposals in New Jersey and Texas have gathered a fair bit of media attention, but legislatures in Ohio and South Dakota are also considering sexting laws.

Sexting is taking nude or explicit pictures of yourself or someone else and sending them as text messages with a phone or computer. As a rule, state criminal codes don’t have a way to handle this, so when these cases make it into the legal system, teenagers can face charges for making and possessing child pornography – usually a felony with lifelong sex offender registration requirements. In New Jersey, the state Assembly has already passed a law that would allow judges to sentence first offenders to education on the criminal and social consequences of sexting, including the possibility that the picture could be traded in the online child pornography underworld. Assemblywoman Pamela Lampitt, D-Camden, has also introduced bills that would require education in schools and with each new cell phone contract.

In Texas, the bill is similar, but more controversial. Judges would be authorized to send minors to anti-sexting classes, but at least one parent would also be required to attend. The state Senate’s proposed legislation would also lower sexting from a felony to a misdemeanor, taking away the penalties of two to 10 years in prison and lifelong sex offender registration. Juveniles convicted could petition to have the crime expunged from their records. Texas Attorney General Greg Abbott has endorsed the legislation.

As a cyber crime criminal defense lawyer, I think these laws are a step in the right direction. What’s missing: proposals that would take the offenses out of the justice system’s hands entirely unless they truly need to be there. Most kids caught sexting aren’t exploiting each other or themselves, in the way an adult criminal making child pornography might do. They’re exploring their sexuality, but in a way that could be socially, legally or personally dangerous. It’s appropriate for our society to discourage this behavior, but in a way that doesn’t send teens to prison, saddle them with sex offender registration or hurt their chances for college, military service and good jobs in the future. As a child pornography defense attorney, I believe schools and parents should take the front lines on sexting, and leave prosecutions for cases where there is some genuine criminal intent.

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As a Miami-Dade DUI criminal defense attorney, I was very interested to read about a plea bargain that helped a high-profile defendant avoid a conviction for drunk driving. Jeffrey Donovan, an actor from the television show Burn Notice, pleaded guilty last week to reckless driving. The deal came after Donovan was charged with driving under the influence in July of 2009, when he narrowly avoided an accident with a stopped Miami-Dade police car. The plea bargain allows Donovan to avoid jail time. Instead, he will pay fines totaling more than $1,000 and serve six months of probation. A typical first DUI in south Florida usually includes probation, fines, community service and a driver’s license suspension. It does not typically involve jail time.

The case stems from events late in the evening of July 12, 2009. Donovan reportedly nearly ran his car into a police car that was stopped at a red light, but swerved at the last minute to avoid it. The officer’s later report said Donovan appeared intoxicated, with bloodshot, watery eyes and a smell of alcohol. He also reportedly failed field sobriety tests, but declined to take a breath test. At the scene, the officer said, Donovan said he had had three glasses of wine at the Fontainebleau Hotel and said he thought he was only “borderline” drunk. However, he said, he’d also taken a Benadryl, and told the officer that was probably his biggest mistake of the evening. The officer took him in for DUI anyway. The reasons for the plea bargain weren’t reported, but his choice to plead guilty to reckless driving will help him avoid disruptions to his show, which shoots in Florida, as well as a movie currently being filmed in Colombia.

The Benadryl comment has prompted some snarky comments from the Miami New Times – but as a Fort Lauderdale drunk driving criminal defense lawyer, I happen to know that Benadryl actually can interact with alcohol. Its active ingredient, diphenhydramine hydrochloride, is an antihistamine that also has a mild sedative effect, which means it can increase the impairment caused by a few glasses of wine. In fact, the warning label tells patients not to mix it with alcohol because it might increase the sedative effect. If Donovan didn’t realize this, he might have truly thought he was within his personal tolerance when he got in the car. It’s not clear whether that was the basis for the plea bargain, but an experienced south Florida intoxicated driving criminal defense attorney can use circumstances like these to negotiate the best possible deal with prosecutors.

Continue reading " 'Burn Notice' Actor Pleads to Reckless Driving in 2009 Miami Drunk Driving Case " »

A recent piece about a misdirected FBI investigation caught my eye as a child pornography lawyer. As the Sarasota Herald-Tribune reported Jan. 31, attorney Malcolm Riddell was temporarily wrongly accused of sending thousands of files’ worth of child pornography – because he hadn’t secured his wireless router very well. The real culprit turned out to be someone in a boat moored in the Sarasota marina 12 stories below Riddell’s condo, who was using Riddell’s network without authorization. Riddell said he knew he needed to password-protect his network, but incorrectly thought the wireless wasn’t available more than 400 feet from the router itself. He was eventually cleared of suspicion, and the FBI arrested 52-year-old Mark Brown, the boater, for possession of more than 10 million images and videos of child pornography.

Riddell found out about the investigation the hard way. One June morning in 2010, he and his wife were awoken at 6 a.m. by loud knocking and a voice announcing “FBI, open up!” When he did, a dozen armed agents entered his condo, held him against the wall and separated him from his wife for questioning. After searching his computer, the police finally told a confused Riddell what they were looking for: child pornography coming from someone using his router. Riddell, 58, said he didn’t bother password protecting his router because he didn’t believe the network reached very far and most of his neighbors were of retirement age, making it unlikely that they would steal his Internet access. But after the FBI put a tracer on the router, they discovered Brown using it from much further away to commit very serious child pornography crimes. Brown is now jailed, awaiting a trial that could put him in prison for decades if he’s convicted.

As a child pornography attorney, I’m very pleased to see that this FBI office knew enough to check whether Riddell was responsible for the traffic coming from Riddell’s router. Unfortunately, in my experience, this is not always the case. Just like everyone else, law enforcement officers can overlook or misinterpret things. To make matters worse, officers often won’t take defendants seriously if they say there must be a technical mistake, in part because people who are truly guilty will often say the same thing. In some cases, it takes an experienced cyber crime defense lawyer and a team of technical experts to prove to a jury that the defendant truly didn’t know what was going on. In the meantime, the defendants may be jailed, rudely and roughly searched as Riddell was, and spend thousands of dollars trying to exonerate themselves – not to mention the judgments they can face in the community.

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As a Fort Lauderdale drugs defense attorney, I was interested to read about the arrest of a South Plantation High School student for bringing drugs to school. The South Florida Sun-Sentinel reported that the teenager was arrested Jan. 28 after a cookie he gave to another students made that student sick. He is not being named because of his age, and neither are the two students to whom he gave the adulterated cookies. However, he is being criminally charged with possession of marijuana under 20 grams and delivery of a controlled substance within 1,000 feet of a school. He and the other two students also face a 10-day suspension from school.

The teen being charged reportedly brought two marijuana cookies to school with him. Before school, he apparently gave one of the cookies to two other students to share. A Plantation police detective said the other students probably knew the cookie had marijuana. After eating the cookie at around 8:30 a.m., one of the teens started feeling stomach pain and went to the school nurse’s office, which prompted an investigation by the school. The teen responsible for bringing the cookies to school did not eat his other cookie and did not appear to be under the influence, but both of the teens who split the cookie appeared intoxicated. Both of the students who did eat the cookie were taken to Plantation General Hospital as a precaution, but appear to be fine.

The article goes on to say it’s relatively rare for teens to be arrested for edible marijuana offenses at school. As a Miami drug crimes criminal defense lawyer, however, I can assure readers that the same drug charges apply no matter what form the drug might have taken. Possession of less than 20 ounces of marijuana is a misdemeanor, but unfortunately for the defendant, distributing drugs within 1,000 feet of a school is a felony. This law is intended to discourage drug crimes at or near schools, but it also has the unfortunate side effect of turning a misdemeanor -- a teen’s mistake -- into a felony with a mandatory minimum of three years in prison. That’s not likely if the case is tried in juvenile court, fortunately, but that doesn’t mean the penalties will be reasonable. In addition to the criminal penalties for any drug convictions, the student could be made ineligible for federal student aid or military service, and the felony on his record could hurt him in future job searches. That’s why parents of teens facing drug charges should get in touch with a south Florida narcotics criminal defense attorney right away.

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