jury nullification, a good and necessary practice

Radley Balko on jury nullification:

We have a much more complicated, vague, and confusing criminal code now. A huge percentage the felonies prosecuted today are for consensual crimes. Conspiracy, racketeering, and money laundering laws enable prosecutors to take multiple bites from the same apple, from multiple angles. That improves the odds of winning a conviction on something. And that of course gives them another tool—the power to pile on charges in order to force a plea agreement. Which means that in 90+ percent of the felony convictions in America today, the government never needs to bother proving its case. 

Jury nullification more important than its ever been. And the power is still there. There’s little a judge can do about a jury that returns an acquittal based on their assessment of the justness of the law, rather than the facts of the case before them. But as regular readers of this site are well aware by now, prosecutors and judges screen any prospective juror who has even heard of the term.

Juries have the responsibility to refuse to convict when the law itself is bad. Do juries know that? Nope, and there is no way for the defense attorney to tell them that directly.


The recently passed New Hampshire law is a huge advance in this cause.

plea bargains...

...are no bargain.

ah...such a friendly place to hang out

Doing some research, I happened on to Prison Talk, a site loaded with information for people like me.  It includes a forum where you can find support, ideas, information, and some people with truly big hearts. The "Loving a Sex Offender"  forum is especially useful.


You will need to register in order to see the LASO forum but it will be worth it. I promise.


The forum is enormous and I haven't quite figured out how to navigate easily...but I'll get there.

the unknown

What should I expect when people learn about my husband? Because I've had a year to come to terms with it, I sometimes think that family and friends will also come to terms with it. Then I read about someone whose husband was caught with child porn and SHE lost her job.


Sometimes I feel incredibly strong. After all, our marriage is better than ever--who wouldn't feel strong with a better marriage? Then I read about someone who lost her job, or someone who had to move her children to a different school and I am frightened all over again.


When I talked about this with my counselor, she asked me how I would react if I learned that someone was going to prison for child pornography. My answer was that there is no way I can look at the topic for the first time again. After seeing how the legal system is stacked against child porn users, I could never be anything but sympathetic. Sympathetic with the offender, sympathetic with the wife and children. 

the feds are bringing charges

Ten months after the ICE agents raided our house and took all our computers, and about three months after I had--at first cautiously and then happily--decided nothing was going to happen, we got word that the federal prosecutor is going to charge my husband with receipt of child pornography. Once again, our world came crashing down. 


The "world crashing down" is a cliche, I know, but that is exactly what it feels like. Little bits and great chunks of my life have fallen into a heap around me. Here, I can see the little bit that is our simple expectation that we would watch football games together, over there is the big chunk that represents security, and crunching underfoot is what used to be our comfortable marital division of labor.


When I think of the huge numbers of families to whom this happens, I am overcome with grief for them. Grief for our own situation is numbing, horrifying, infuriating.


Laws against child pornography are justified in terms of protecting children so it is astounding to see that protecting my own children is not what the feds are thinking about. They weren't thinking about protecting my children when they planned to raid our house at a time when they knew the children would be there. They weren't thinking of protecting my children when they came in with weapons drawn. They weren't thinking of protecting my children when they chose to humiliate their dad in front of them. Protecting children is not what ICE is about.


So, here we are, praying and making plans about how to keep our family safe and strong with my husband in prison. Fortunately, we have not wasted the past year; we have already begun talking about how I will handle finances and home maintenance without my husband. In the months we have left--because everything takes longer than expected--we will continue with the prayers and plans.


If you can find it in your heart to pray for our family, I would appreciate it. We all would. 

jury uses common sense and refuses to convict

Radley Balko links to a happy story about a jury with common sense and courage. Dury jury selection, the prosecutor asked the prospective jurors "...if they believed beyond a reasonable doubt that the offense was committed, would they convict?"

...50 out of 130 jurors said no, they would not convict someone even if it was proven beyond a reasonable doubt...

“They said they weren’t going to make somebody a felon and ruin their lives over less than a gram of cocaine,” Dupont said.

Jurors often don't understand that a true choice is put in front of them. They actually <i>can</i> vote 'not guilty' even when the evidence says otherwise. The court doesn't like them to know this, so the judge isn't allowed (legal experts: is "not allowed" true? that's my understanding) to tell the;, the defense cannot tell them. And nobody tells them when there is a mandatory minimum sentence that will be applied if they decide 'guilty'.

20-year mandatory minimum sentence for Ronald Thompson

Man fires two shots into the ground and gets a 20-year mandatory minimum sentence. The judge tried to give him three years instead of the mandatory 20 but was overturned on appeal. This is an especially brutal sentence because the man is sick and elderly. The sentence does not make more sense if he were young and healthy: firing two shots into the ground shouldn't put anyone into prison. (Via Families Against Mandatory Minimums) Read the whole article.

The federal judges know. They know that sentences for child pornorgraphy offenses are too often too severe.

In 2010, federal judges deviated below sentencing guidelines in child pornography cases 43 percent of the time, compared with 18 percent for all other crimes, according to data from the US Sentencing Commission, the agency that Congress established to set the guidelines.

That figure has been steadily increasing since the Supreme Court in 2005 and 2007 affirmed that judges have the right to depart from commission recommendations.

I have noticed myself that our local federal judges tend to issue sentences below what the sentencing guidelines would require, which is a hopeful sign that judges are sensible people.

How did those tough sentencing guidelines come about?

Congress has been so aggressive in its efforts to toughen child pornography sentencing guidelines over the last decade that it overrode the Sentencing Commission’s edicts for the first time in its history, in 2003. The changes effectively doubled what the average sentence for possession of child pornography had been in the two previous years, according to a Sentence Commission study, from 28 to 54 months.

Elected officials have a hard time arguing against any kind of get-tough-on-crime measures because of the danger that an opponent in an election campaign could use it against him or her.

The Department of Justice has also pointed to a study at a federal prison that found that found that 85 percent of inmates convicted of child pornography possession who took part in therapy sessions later admitted to having sexual contact with children. Before they were sentenced, 74 percent of the 155 men who took part in the study indicated they had no history of contact with children.

“I’m very cautious when I hear people use the term child pornography offender with this underlying assumption that they haven’t done anything else,’’ said Michael Bourke, a psychologist who conducted the study and published its findings in 2009.

Let's think about this for a moment. They are arguing for longer sentences for child porn charges because the offenders may have molested a child. Please notice that the offender was not arrested for or charged with molestation, only suspected. The suspicion also falls on the entire category of offenders instead of looking at individual cases.

police officer fired for brutality is reinstated

A year ago, Omaha police beat a man in a hospital parking lot and the beating was recorded by security camera. The public was scandalized by the actions of the police and two of the officers were fired, as they should have been. Go to the link and see if you agree.


Last Friday, we learned that one of those two officers got her job back.

Former Police Chief Alex Hayes elected to fire Dolinsky and Officer Aaron Pennington for their roles in the videotaped scuffle. 

The police union contract, however, allows officers to appeal disciplinary actions publicly to the city's Personnel Board or, as Dolinsky did and Pennington will do, privately before an independent arbitrator. The arbitrator's decision cannot be appealed. 

Three days of private hearings were held at City Hall late last month. Documents or rulings related to arbitration proceedings are not released publicly. 

Dolinsky will be disciplined in an unspecified manner and will receive additional training, as part of a reinstatement agreement between the city and police union. In two years, Dolinsky can ask to have any record of her discipline removed from her personnel file.

Again, watch the video and see if you can agree. 

laws against posessing child porn make no sense

I'm not quite sure what to think about this court decision. The legal distinction between possession and viewing internet content shouldn't be all that tough. Do you possess something by simply looking at it? If I look at photos of a car, do I possess the photo? I certainly don't possess the car, correct? What does it mean to possess the photo? Why is it a crime to possess certain photos? The standard explanation, when it comes to child porn, is that possessing images of children enduring sexual abuse is like abusing the children all over again.


But let's look at the photo of a murder scene. Who would claim that looking at the images of the murdered person is like murdering that person all over again? If I look at images of a child who has been beaten, is that like me beating the child myself? I can't think that anyone would argue that.


Ah, you say, but it should be illegal to get sexual satisfaction from looking at images of child sexual abuse. Okay, so how do we decide if the person downloading those photos got sexual satisfaction or not? Did the person truly get off on this photo or did this person download the photo and immediately delete it? Did the person download the images and watch them while jerking off...or while knitting sweaters? 


Computer forensics can tell us that someone downloaded the images but the science cannot tell us what the person did with the image. Did he enjoy the image? Did he turn in disgust from it? Did he ignore it entirely? Did he hold it on his computer for a long time? Did he look at it more than once? The science cannot say.


What do we do with people who don't need to download images from the Internet in order to get off on the idea of child sexual abuse? How do we know what they are thinking? We don't. Fantasy is completely interior. The difference between this person and the one who downloads images is that fantasy cannot be tracked.


The Gizmodo article says, "Thanks for that, appeals court. You're doing a great job upholding the spirit of the laws that prevent horrendous child abuse." Reading that should stop us all in our tracks. Do those laws prevent horrendous child abuse?


If the laws are meant to prevent horrendous child abuse, we should be able to decide if the laws actually accomplish that. My argument is never that child porn is acceptable, but that the laws against posessing child porn make no sense. 

addictions...or not?

We are out of town, enjoying some lovely family time and enjoying even less access to the Internet than we have at home. Yesterday, I was surprised to realize that I had spent a few hours online without a break. I was only catching up on emails and the news but it was easy to let my time drift by without much thought.


We often hear someone say they are addicted to Facebook or their son is addicted to video games. We chuckle a bit because it sounds silly--addicted!--but we do know what it means. It means someone has trouble staying away and once started, has trouble breaking away. Time spent online slips through our fingers too easily. There is always one more link to click, one more level to try. There is no end of the book, no last page of the newspaper. 


The same with porn: always one more link, one more image. There is no end to pornography online. There is no end to free pornography online. Pornography is ubiquitous but it isn't quite socially acceptable--you may hear people joke about porn but you won't hear anyone talk about staying up all night with it. You won't hear someone say they chose to skip the family barbecue because they wanted to spend more time with porn...but that is exactly what happens when someone is addicted to porn. They make choices based on whether they can spend time with porn. "You and the kids go ahead without me," is a way to make sure of time alone with porn. No one talks about that part of porn use. We hear only the raw jokes about porn that show we are only entertained by it, that we don't take it too seriously.


This is a kind of addiction, even when we are reluctant to recognize it formally the way drug addiction or alcohol addiction is recognized. Addiction to porn? That's just a sleazeball's excuse! To my mind, it doesn't matter what we call it. What matters is how we deal with it. Is there a way for someone to find help if they want to stop? When a porn user crosses the line from legal porn to illegal porn--child porn--his ability to ask for help is practically eliminated. Anywhere he goes for help, he runs the risk of getting turned in. He is left alone with pornography and his secret.


This is no way to stop the use of child pornography.