Computer Crimes

The problem is most of the child pornography defendants your going to see, are a little bit tougher to work with. Now you can send them to the tanning beds so that they don’t look so quite so pasty white. Now you can get them to shave off their porn stash. But, we are still going to have some problems. So, I want to talk to you about ways, principled ways that we can try and get them a lower sentence that even a judge who hates them may listen to. Alright!

Now once you’ve seen some of these cases, you start to get some perspective. So let’s talk about Joe Possessor really quick, possesses some pictures, one picture of a kid under 12. Everyone’s going to have that anymore, you can see the percentage. I know your going to be shocked. He used a computer to look at the picture. Ahh he had a couple of images, no criminal history, never abused or exploited a child. Full points for acceptance. Prominent lawyer, banker, whatever you want to say in the community.

Alright because I have seen worst and almost all of you probably have or soon will have seen worst. Alright but that’s not, how he looks to people who set out the sentencing systems. Back in 1987, he would have got no punishment. Possession was legal and you can see punishment keeps going up. Now in 2008 I wrote a article about this. I went back and I looked at the findings in congress that were driving up sentences both, Federally and in the State and I found that they had no imperial backing. And when I put that article out the Department of Justice responded and they said, “well, there’s been a gradual incremental increase in sentencing of child pornography defendants”. I don’t believe in those sort of blurring euphuisms so I want to put everything in the way so that the judge can understanding.

So what I say is, if gas was $3 a gallon in 1991 it would be $21 a gallon now alright. How many of us would call that a gradual incremental increase in our gas prices. Okay! Alright, so what about Jim Bob Swapper and to any Jim Bobs in the audience, I apologize. Jim Bob Swapper does basically the exact the same thing as Joe Pessessor but he swaps the picture and oh by the way he has a picture of bondage. Now you got to watch out. In different places, in different States and in different jurisdictions, they don’t care if it’s a picture of a child in bondage. So, if your client has a picture of Janet Jameson, that’s a very adult, very mature, voluptuous porn star and she is tied up with silk scarves and her boyfriend’s tickling her with a feather. And in the very next set of pictures, her boyfriend, lucky fellow, is himself bound with silk scarves and she is tickling him with a feather.

You may get a higher sentence for your defendant, because they are going to say well possession of bondage pictures means, this guy’s more likely to kidnap, rape, molest and kill a child. Alright, this is the sort of logic we are talking about. But in any case, Jim Bob Swapper, prominent architect, 62 years old, military veteran, no criminal history, never abused anyone, full points for pleading guilty in the Federal System. You get points for pleading guilty. What’s going to happen to Jim Bob. Well, this is what the hearings are like in my experience. It’s my turn – I make an argument for Jim Bob about what a swell fellow he is – the prosecutor weighs in with the Governments opinion and the Judges neutrally give their support you know – to the prosecutor’s argument. You know – I had this argument case after case and it practically wore on me. Ahhm and Jim Bob who would have gotten 12 to 18 months back in the 80s now in Federal Court will be right up at 15 to 20 years for the exact same conduct. Getting back to our gasoline example — $47 a gallon for gas. Just a tad price increase. Okay – well Jim Bob’s alternate sentence in the Federal System if he has a couple of 5 or 10 seconds video clip is an automatic 20 years, $50 a gallon. Well how did this happen and why should you care. How many people practice in Federal Court. Alright some of you but not all. Here’s why you should care if you don’t practice in Federal Court;

Reason#2 you should care! Some of you, I understand like to make money. Ahhm and there is nothing that a 55 year old banker facing 20 years in prison and a sex offender registry and sex offender registration for the rest of his life will not pay to get a better result. And unlike many of your 18 year old DY clients, these people tend to have money or their families do. So, that’s why you should carry your personal hook. Alright, well how did this huge phenomenal increase occur.

It occurred because of bogus fact finding by congress. Now I know that all of you have – hold congress in the highest esteem and you know that they spend each and every single day researching ways to make your life better. So it just happens that in 1996 on one particular day, they made some peculiar findings; they found that anybody who had a computer, when they looked at child pornography, deserved a higher sentence. Alright! And they gave a couple of reasons. And there’s more detail here but one short timeline. Here’s some of the reasons;

#1 They looked at a small number of offenders and said all offenders must be like the worst in the Federal System.
#2 They said, “well since, some of these guys have had repeated problems, we can assume all child pornographers are repeat offenders”
and this is my favorite one;
#3 They said, “anybody with a computer has to get a higher punishment because we know 3 things about computer users”.

#1 “only sophisticated, evil, rich, connected, mobster type criminals have access to this secret technology called the internet”.

# 2 “if anybody does anything online, there is no way of any law enforcement to ever detect the crime”

#3 “and if anybody uses a computer there will be no evidence of what they did left over ever”

So step # 1

Dig into the evidence and don’t presume your judges know anything about computers.

Perfect! Forensic technology in computers is more sophisticated to that. There will be evidence so, rule #1 Stay in your lane. Nobody here knows enough about computers. I’ve been doing computer crimes cases since the mid 1990’s. I teach computer forensic investigators all over the country about what we look for as attorneys and I still make sure that I have a computer person in on any computer crimes case I have. Even the ones I think the answer is obvious. And I will give a little story to illustrate this. Here’s the evidence they found.

They found a folder on the desktop, it was suddenly labeled, good child pornography. Alright! the files had names it stands out particularly to me, it was, 5 year old fuck stabby. Okay now some people would consider this strong evidence for the government. Ahm but my forensic examiner and i, we sat down and we took a look and we discovered something interesting. The files were created after the police took my clients computer. And nobody – we were there a day before trial and I was asked to come down and help. The police department hadn’t noticed that, the FBI had not noticed that, the military investigators had not noticed that, the prosecutor and the defense attorney had not noticed that and my client was about to go to prison the next day. And here’s what we figured out.

My client, called his uncle, a police detective in L.A and said, “my girlfriend who is very attractive, and she was, encouraged me to watch some pornography online to spice up our life”. No what 22 year old soldier is going to say no that proposition. So lo and behold they looked for some pornography online. And they found some, but it wasn’t what they were expecting. So, he called this uncle and we told him and he said go to Bestbuy to wipe your computer, you got some stuff you didn’t want. The Bestbuy employee did a virus scan, saw a picture and called up an El Paso police detective and said hey, this guy came in with his girlfriend, there’s a picture on his computer, he looks a little young. And the police detective says how young. He says ah I don’t know, it could be a high school student, it could be a young college co-ed, I don’t know. And the police detective said, “I’m authorizing you to search his whole computer”. Make a folder on his desktop, and label it, good child pornography so at least what you find that is good for the subject. And re-label any files you find to describe what is happening in the videos. So, the actual title of the video was like xxx hard core porn and it got renamed 5yr old with daddy. Okay? So always look at the evidence with an expert.

So what do we do? We examine the evidence, we examine every picture, we look at it’s location, was it deleted. Is it in the unallocated clusters. If you delete something. If you go to MSNBC and then close out of it, there is a record of it on your computer. In most cases, there are exceptions but I’ll let you talk to on that to your expert. But normally there is a record. Alright there are little pictures there, because your computer puts the stuff together like a jigsaw puzzle.

Alright, Now, most of you do not have the sophistication necessary to go into you unallocated clusters and pull those video files back out. But the detectives will try and do that to your clients and say that he was still possessing it and there is great case law just about everywhere now that says no that’s not the case. Unless they can establish that your client is really sophisticated. You look at it in its native form. If it’s a little thumbnail, and your client was looking at it on a cellphone, that little picture, you’re not going to be able to tell whether it’s a 4 year old or an octogenarian. So if it’s going to be shown to the jury, I want it to be shown in its native format. “There Jury! That little tiny white thing that’s the stuff they want to send my client to prison for 20 years for”.

You go through It and you really examine it. Alright, and you think about enhancements, they will say things like this picture here, matches up to a series of images where this little girl was raped violently get a sadistic enhancement and you could say, “aahh aahh ha it’s the same girl but my client doesn’t have the pictures where the bad stuff happens. All he has is this girl standing there naked. That doesn’t apply to us”. Alright, watch out for shady tactics. I had a client 2 years ago, this is the actual language from the report. “Agents found thousands of images of pornography with nearly all depicting females with shave or partially shaved pubic hair. Several depicting females portrayed as teens dressed in school clothes, cheerleaders with braces or virgins. Several of the magazines advertised child oriented such as barely legal”. Alright, oh this sounds bad.

I’m going to show you the 3 magazines that my client had a subscription to. Hooters, jugs and busty and these were the three subscriptions that they tried to convince the judge indicating that he had a preference for pre-pubescent kids. Because in the back there is advertisements like barely legal magazines by producers of Hustler whatever and one of the girls have like a catholic school skirt on and some shirt that like even as a xxx could barely be tied over her chest and so they said that indicated that he likes children. So be very careful of what they see. There is a tendency now for investigators to have a little checklist and they are like has some school clothes, check at least one image of a kid under 12 check. and they just go down their little check list and stop investigating.

They’ll investigate a $200 bank fraud for 4 years with 20 investigators. They will give his one hour, Alright.

Okay, our clients, our clients do not give it a ponder. There’s going to be stuff in their computer that’s going to be bad. It’s your job to do 2 things. Assess how bad it is and mitigate it. Alright, So now they have an image of a 4 year old and they have a image of a 40 year old and they have Sophia Loren and they have a somebody in a bikini and they have a bondage image and then any prosecutor in my experience is going to go judge. “Thank God we found him when we did. He was just about to take the next step”. Okay like there an inevitable link like you smoke a joint you become the head of the madine drug cartel. Alright, you look at an image of child pornography you go out and become a serial rapist/murderer.

Alright so, you look at the pictures and if they are all over the place like one day he is looking at adults and the next day he is looking at animals and the next day he is looking at kids then he is back to adults, then there is no pattern there is no next step. If you look at the stuff and you see that your client has looked at 14 year olds then 10 year olds then 4yr olds then 2 year old then 2 year olds in bondage you might want to beat feet to the prosecutor’s office and get a sweetheart of a deal before they figure that you. Alright, If there’s some stuff in there like fantasy stories or those sort of things okay, it’s going to be tough but you got to talk to the judge about them. Just because somebody has a story on their computer does not mean they want to live it. Alright, I mean I read military book and I’m an army officer and I like the books where they are in the worst sort of conditions.

I’m also I like mountain climbing, you know, so I want to read books where they are stranded in the North Pole and its miserable and it’s sucky and people are losing their fingers and their toes. It doesn’t mean I want to live that. Alright, So we have to come up with comparisons. A great comparison are the movies Hostel and Saw. I think we lost the, we lost the! Alright Hostel and Saw. Alright, Hostel and Saw. Why are Hostel and Saw great examples. Who here seen Hostel and Saw? Alright, torture is not a plot device in the Hostel and saw series. Torture is the whole movie. Who here seen more than one of those movies? Brave soul! Thank you. Thank you. Well, according to several psychiatrists I have talked to, and some psychologist I talked to, anybody who chooses to watch more than one of those movies is at some way and at some level aroused by the torture and dismemberment of others. So, we know who to be careful around at the bar tonight right. Except here is the thing. Those movies make hundreds of millions of dollars. It doesn’t mean that we have 5 million new Jeffery Dahmers roaming the streets. We look for other things. The guy who was always quiet, right at the end of the block, and tortured little animals and has a history of psychopathic behavior. The same thing in these cases. Alright so know your client.

Francisco Hernandez

Author Francisco Hernandez

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