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December 7, 2012

Just who decides whether serious child porn case is in state or federal system?

I kind of know the answer to the question in the title of this post (as explained below), but this is still the inquisitive reaction I often have after reading about a state child porn sentencing decision like this one reported today out of Pennsylvania:

Calling him a danger to the community who showed no remorse, a Northampton County judge handed down a state prison sentence Friday to a Nazareth man who had child pornography and sent inappropriate text messages to a 12-year-old girl in which he said he wanted to make her feel "warm and cozy."

Christopher M. Rothrock, 46, was sentenced to 21 months to 7 years in prison by county Judge Stephen Baratta. In handing down his sentence, Baratta said he would be "afraid for the community" unless Rothrock served time in state prison.

Rothrock was reported to police in 2011 by the girl's parents.  Police said they found 25 texts from Rothrock to the girl, saying he wanted to massage her and asking for photos of her exposed stomach, court records state. Police said they also found thousands of child pornography images on Rothrock's computer.

In September, Rothrock pleaded guilty to five counts of possessing child pornography and one count of criminal solicitation for the text messages he sent to the girl. Northampton County Assistant District Attorney Patricia Broscius testified Friday that the victim and her mother are "extremely hurt, extremely angry" by Rothrock's actions. "The bottom line is he's dangerous and he needs intensive treatment," Broscius said. "He had no remorse, no insight, no empathy for what happened."

In a pre-sentence report read aloud Friday by Baratta, Rothrock said he had been viewing child pornography for 20 years and didn't believe it was a crime unless he was selling or distributing the images. He also told authorities he didn't believe pornographic images of children over the age 10 were considered child pornography.  Baratta noted that Rothrock stopped going to sex offender treatments after Rothrock said he could no longer afford to pay for therapy.

Though not perfectly clear from this story, it appears that the defendant here (1) may have already had a conviction of some sort that got him into sex offender treatment, and (2) had sent numerous sexual texts to a 12-year-old, and (3) had a massive and long-standing collection of child pornography.  Add up these facts in the federal system, and the defendant here would likely be looking at decades in the federal prison system.  But in state court this guy, deemed by the sentencing judge as dangerous and with no remorse, could be free in less than two years.

My understanding is that state and federal investigative authorities and prosecutors are ultimately the persons who decide whether and when a case will be brought in federal or state court when both jurisdictions have authority.  But, as highlighted by this story (and so many others in this area), the sentencing consequences of child porn crimes will often depend a lot more on this (hidden and unreviewable) state/federal prosecutorial decision than any other facts or factors.

December 7, 2012 at 03:13 PM | Permalink

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Comments

The bit I find odd in this post is the following:

Northampton County Assistant District Attorney Patricia Broscius testified Friday that the victim and her mother are "extremely hurt, extremely
angry"

Specifically the word "testified". Certainly I could see that the prosecutor could argue such a thing, but to testify to it? How could such a statement possibly be admissible?

Posted by: Soronel Haetir | Dec 7, 2012 4:05:44 PM

Soronel --

Hearsay is generally not admissible (with a lot of exceptions), but the prosecutor's testimony was not hearsay, because it did not purport to be recounting a statement. I think it was permissible because it was no more than a description of the emotional state of another person, which is permissible if the witness has a basis for knowing (which can be tested in cross examination).

Posted by: Bill Otis | Dec 7, 2012 4:35:12 PM

Large differences between sentences in state v. federal court are common, not just in child porn cases.

I suspect that "testified" is just the reporter's incorrect word choice. Hearsay questions aside, you can't be an lawyer-advocate and a witness in the same case.

Posted by: Kent Scheidegger | Dec 7, 2012 5:11:18 PM

sure you can Kent! This is a sex crime! Alls fair game!

Posted by: rodsmith | Dec 8, 2012 2:08:10 AM

The girl seems uncommonly resilient if it took 25 texts before she became "extremely hurt, extremely angry" ‼

If she became "extremely hurt, extremely angry" on the first text „ why the delay before going after the defendant ?

Docile Jim Brady ♦ Columbus OH 43209
Nemo Me Impune Lacessit

Posted by: Anon. #2.71828 | Dec 8, 2012 10:43:53 AM

I'm thinking Kent is right -- just poor wordsmithing on the part of the reporter.

Posted by: Guy | Dec 9, 2012 9:33:23 AM

I was hoping for better clarification on this subject after seeing this article earlier this week:
Charges Dropped Against Former ADA Steve Giardini

http://www.local15tv.com/news/local/story/Charges-Dropped-Against-Former-ADA-Steve-Giardini/xioZtNv1SEm7M8k7YlQ6Ww.cspx

Basically he's a DA in Alabama that was caught in a sting operation where he was soliciting an FBI agent that was posing as a 15y.o.. I thought that given the fact that an FBI agent was doing the soliciting the Federal courts would prosecute. This particular case smells fishy to me and doesn't look good for the general public. I wish someone would explain why he wasn't tried in a federal court. If the federal court cannot prosecute these cases why are the FBI putting any effort into trolling like this?

Posted by: mike | Dec 9, 2012 10:39:29 AM

mother of convicted son
My son was caught up in this same FBI sting in Moblie. Big difference was that my son had never been in trouble before and when the Fed and police came to his house he signed a confession and pleaded guilty in Federal Court to possision of child porn. Mr. Giardini being a former ADA knew not to confess or plead to the same crime he had put so many other in jail. I too would like to understand how his charges became state charges. In Alabama the FBI agent was not considered a "victim" therefore Giardini was not convicted. Just goes to show justice is not fairly delivered. My son went to federal prison for the mandatory 5 years!

Posted by: Miriam Young | Dec 19, 2012 3:29:33 PM

Rothrock is definitely a dangerous person. He deserves to live in the prison. He might have more victims if he was not caught for such acts.

Posted by: Pascarella Antonio | Mar 21, 2013 3:43:20 AM

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