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August 21, 2008

Iowa prosecutors trying to ensure teens practice safe cell

This story from Iowa about a teen being prosecuted for modern cyber-locker-room talk is remarkable for many reasons.  Here are just some of the highlights:

High school senior Andy Dougherty sent a 17-year-old buddy a 10-second cell phone video that showed Dougherty with his pants down, fooling around with his teenage girlfriend. The prosecutor in Woodbury County charged Dougherty, 18, with a sex crime: telephone dissemination of obscene material to a minor.

The teenager pleaded guilty to a lesser offense this week, but the implications of the original charge have prompted some questions about the state's sex offender laws and may serve as a warning to teens.  If he had been convicted of the sex crime, Dougherty could have spent up to two years in jail and 10 years on the sex offender registry. He wouldn't have been able to live in any dorm at any state university in Iowa because registered sex offenders are prohibited. And for the rest of his life, he couldn't live within 2,000 feet of a K-12 school or child care center.

Dougherty and his parents have lived with the dread of those possibilities for the past six months. "It's destroying our family for what amounts to a high school prank," the teen's father, Jim Dougherty, who drained $50,000 of his retirement savings to pay for legal fees to defend his son, said last week....

Andy Dougherty was 17 and his then-girlfriend was 16 when they made the short video that prosecutors said contained "a sex act," Jim Dougherty said. Andy later forwarded it to a 17-year-old friend because he was seeking revenge on the girl for spreading rumors about him, his father said. The video spread like wildfire through the Sioux City area.

"Yes, he deserves punishment, but he didn't do anything wrong that would make him deserve being on the sex offender registry," said Jim Dougherty, an electrical engineer. "He knew what he was doing was mean, but he had no clue of the legal ramifications."   Jim Dougherty is relieved that the prosecutor, Woodbury County Attorney Patrick Jennings, agreed to a plea agreement. Under the deal, Andy Dougherty pleaded guilty to three counts of third-degree harassment. He must spend 20 days in jail next summer, do 100 hours of community service and pay $300 in fines....

"I keep thinking: How many other high school kids are forwarding e-mails or texting pictures that if prosecuted would nail them on the sex offender registry?" said state Rep. Christopher Rants of Sioux City, the Republican leader in the Iowa House.  Rants said what Andy Dougherty did was wrong, but the punishment allowed by current law is too harsh for teenagers making "this particular stupid mistake."...

Rants isn't the only legislative leader with an interest in the case. House Majority Leader Kevin McCarthy, a Des Moines Democrat, was listed in court documents as one of the lawyers for the Doughertys. McCarthy said he doesn’t think the laws need to be amended. “I support getting tougher on sex offenders and, as a former prosecutor, I believe that the prosecutorial edict of seeking justice, not merely convictions, provides safeguards in the process of certain charges being appropriately matched to the underlying facts of a situation,” he said....

After listening to some basic facts of the Dougherty case, Ernie Allen, the president of the National Center for Missing & Exploited Children, said it's "fairly uncommon" for prosecutors to seek such tough punishment in cases of teens in dating relationships who created photos or video of sex acts.

August 21, 2008 at 04:02 PM | Permalink


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What a waste of time by this prosecutor. However, seeing that the defendant was a lawyer, and likely his parents were not, either, no injustice is worked. The $50,000 in legal fees is simply a fine for not having the common decency and patriotism to go to law school. It is good that his son will not have the chance to become a lawyer, as well.

Posted by: S.cute.us | Aug 21, 2008 4:13:08 PM

Oh, if prosecutors want to do something about cel-phones, why don’t they tell kids not to use them when driving. That actually HURTS people.

Oh, but it isn’t sexy and the fines might not ruin someone’s life.

Posted by: S.cute.us | Aug 21, 2008 4:23:14 PM

That's a shame. It was a mean prank, no doubt, but hardly worthy of prison, the sex offender registry, or the time of anyone outside their immediate circle.

The Woodbury County Attorney is Patrick Jennings. I wonder if there anyone who lives in the area that can give us more background on this prosecutor who chooses to use his position to hurt people instead of help people.

Posted by: babalu | Aug 21, 2008 4:51:29 PM

S.cute.us, you joke about lawyers and the idiot non-lawyers but there is something to that. The truth is that though we are a "nation of laws" a citizen is impotent under the law because of ignorance of the law, in the sense of not being able to exercise the power of the law, and that person is really a second class citizen. That citizen can be mowed over like a blade of grass. What if he/she can't afford an attorney but its not a criminal case? Take this example stolen and edited from a comment at Mr. Yung's blog.

Kruska v. Perverted Justice Foundation (with briefs)

There is a summary of what it's about on the ABC News 20/20 program. Here is the video from ABC News.

Why does Perverted Justice get pro bono help [despite making big money] and no one is helping Jan?

I don't know if there is any merit to her case or not but do know she, Jan "Blade-of-Grass" Kruska, will likely to be procedured to death before it gets to the merits. How are all equal under the law?

Posted by: | Aug 21, 2008 5:20:13 PM

Rarely does steam come out of my ears but this part of the quote did, "I believe that the prosecutorial edict of seeking justice, not merely convictions".

Actual meaning of quote: What is everyone all upset about? The kid was white, his daddy was a professional, he paid his fee to the lawyer. Once we realized his social-economic status and got the shakedown fee, we's all cool. Why the dissing brothers? We all down.

Ugh, just ugh. I don't believe for one second that if this had been some poor minority kid anyone would have given a sh*t.

Posted by: Daniel | Aug 21, 2008 5:20:16 PM

" I don't believe for one second that if this had been some poor minority kid anyone would have given a sh*t."

The problem with counterfactual allegations of racial bias is that they're easy to make and virtually impossible to refute. But the Genarlow Wilson case seems to call your premise that no one "give[s] a sh*t" about minority kids into question.

Posted by: Anon | Aug 21, 2008 6:48:50 PM

Daniel that's well said. Lots of reason not to respect the law here.

Posted by: beth curtis | Aug 21, 2008 7:15:28 PM

“There is a summary of what it's about on the ABC News 20/20 program. Here is the video from ABC News”

Sorry, I don’t watch news sources aimed at lay people.

They are not worth my time. I don’t really no the specifics of your case, but there are plenty of people willing to take on worthy causes where the parties are not nutty. .Unfortunately, many lay people are nutty and are bad clients.

Posted by: S.cotus | Aug 21, 2008 7:27:52 PM

Anon. (1) That case happened in the South, this is Iowa. Iowa doesn't have the history of black empowerment (such as it is) that the South does. That's just reality.

(2) The Wilson case is the exception, not the rule. You don't make a scientific law based upon the existence of a single pickled monster and you shouldn't do that with the legal system either.

In any case, I seriously doubt the wisdom of turning over the legislative function to "prosecutor discretion". It not the prosecutor's job to determine who the "real" pedophiles are; that responsibility falls directly on the legislature. Prosecutors do and should have discretion. But that discretion should center round whether the facts justify a prosecution at all. If the prosecutor has the facts that fit the crime as defined by the legislature, he/she has an ethical obligation to try that case. Giving prosecutors discretion to not try cases when the facts of the case make certain popular groups uncomfortable is merely an excuse to avoid difficult legislative decision making; that is simply irresponsible.

"I believe that the prosecutorial edict of seeking justice, not merely convictions, provides safeguards in the process of certain charges being appropriately matched to the underlying facts of a situation"

Those remarks are a cop out, period. I just love the comment about "certain charges". I assume he means charges against people of the right color and socio-economic status.

Posted by: Daniel | Aug 21, 2008 9:20:51 PM


Are you actually suggesting that there's *less* racial bias in the South than there is in Iowa? That's certainly contrary to all conventional wisdom. I'm not sure what "black empowerment" has to do with it, since your initial comment seemed to be directed at the non-black community's supposed apathy to the plight of poor minorities (something we hear about an awful lot given that no one cares about it). And in any event, a lot of the attention focused on the Wilson case did not originate in the South. Neither Professor Berman nor the New York Times, as far as I know, are based in Atlanta.

"The Wilson case is the exception, not the rule. You don't make a scientific law based upon the existence of a single pickled monster and you shouldn't do that with the legal system either."

At least my example is an actual case, as opposed to accusations based on nothing more than your own preconceived notions. If you'd like more, try googling "Jena 6." And those are both just this year.

Of course it's obvious that a kid whose family has familiarity with the law and can afford legal representation is likely to actually get better representation than a kid of any race whose family is neither legally sophisticated nor affluent. But the high-minded accusation that no one (no one but you, apparently) cares about the injusticed inflicted on poor minorities is not only trite, it's completely at odds with the fact that an enormous amount of ink and electrons are spilled on a regular basis discussing those very issues.

Posted by: Anon | Aug 22, 2008 12:26:06 PM

Anon. Let me try again and be explicit. First, my one and only point has been that the comment this lawmaker in Iowa made strikes me as pre-textual. *All* my comments relate to the remarks this one specific man made. You seem to have taken my line about "anyone" a little too literally to include yourself and the rest of the entire world. I never meant it that way; I thought that was obvious from the context of my post. Obviously I was in error and I regret being too casual with my language in this instance. I also compounded the problem by responding to your criticism before attempting to reemphasize my original point in my second post. If I could, I would go back and eliminate point (1) and (2) from my second post because they only confuse the issue.

I have no desire to debate with you the relative racism of the south vs the north or other such issues; they are completely off the topic as I see it.

Posted by: Daniel | Aug 22, 2008 1:10:12 PM

“Of course it's obvious that a kid whose family has familiarity with the law and can afford legal representation is likely to actually get better representation than a kid of any race whose family is neither legally sophisticated nor affluent.”

This is not entirely true. In many jurisdictions, the middle-income people are the most screwed. If you are poor, you may be represented by a Public Defender agency whose sole reason for existence is to represent your kind. They don’t do personal injury law. They don’t “develop business.” All they do is represent the indigent. They usually work in one courthouse (or one jurisdiction) and they know all the prosecutors and judges. They know each one’s quirks, and they keep up with the law day-by-day. They speak the language of that courthouse and they rarely need to research. (It is a lawyer’s ethical obligation to read all binding authority within 12 hours of its issuance.) These lawyers know all the tricks (such a judge-shopping, prosecutor-shopping, continuance policies, etc.) Don’t worry, prosecutors know these tricks, too. So, provided such an institution exists, the representation will be of a rather high quality.

If you have money, but not enough, you will open the phone book and choose a lawyer. I hate these people already. Lawyers should be chosen by referral. The average lay person has no way of knowing the degree of mastery that this lawyer has of the law within his jurisdiction. It will be hit or miss, because these lawyers need to pay the rent on their office and need to resolve the case fairly efficiently. Likely they will practice in more than one jurisdiction, which may create scheduling problems. This isn’t to say that they are bad lawyers, but the pressures and commitments are different.

Real people will be able to afford a large law firm. Their lawyer will likely be a former AUSA. However, this person will likely not have the day-to-day familiarity with that courhouse. But, he will be able to have other people research legal issues. He will not speak in shorthands and local jargons, but he will be able to turn out lots of memos and briefs (even if they are not necessary).

Posted by: S.cute.us | Aug 22, 2008 1:13:55 PM

TalkLeft has a relevant post.

"As pro bono counsel, I unsuccessfully litigated a Virginia appeal of a mentally retarded minor who had been convicted and sentenced to death for a crime that I firmly believe he didn't commit, because his court-appointed attorney didn't want to represent him and was basically worthless as his lawyer. After seven years, the Virginia governor ultimately lacked the courage to stay the sentence, and my client was executed."

Is this what you mean by "bad clients," S.cotus? And if lawyers won't represent the nutty, then how is it that Petra Luna got representation? Maybe Jan Kruska's gun scared you off.

P.S. I know you're being flippant.

Posted by: George | Aug 22, 2008 1:55:48 PM

As a criminal defense paralegal, I've become convinced that the underlying problem is that we, as a society, have made the court system and prisons our primary and preferred means of dealing with problems. It's a simple and quick solution that is, unfortunately, usually also the wrong solution. It's worse in the case of sex offenses because we've also made a presumption that if it's illegal and sexual, it's gotta be traumatic per se to whomever is the younger of the participants and the other person must be punished harshly. The worst example I've seen was about fifteen years ago when two boys, 7 and 8 years of age, were arrested for having sexual contact with a 6-year-old girl and charged with first degree child molestation. News reports at the time indicated that the prosecutor was seeking to try them as adults because of "the nature of the crime". When I was a kid back in the 1950s, this was called "playing doctor" and if you got caught, you got your butt beat and that was the end of it. Now, we use it to ruin people's lives forever. Oy!

Posted by: Eli | Aug 22, 2008 3:03:13 PM

"As a criminal defense paralegal"

Well, that about covers it.

Posted by: S.cotus | Aug 22, 2008 10:45:19 PM

Thank you, Eli. Sometimes it seems that non-lawyers are the only ones who can see the utter insanity of this whole sex offender hysteria. I remember several incidents in my neighborhood while I was growing up in the fifties for which kids received spankings but which now would result in sex charges. None of those kids grew up to be sex offenders. However, we have to remember that spanking is now child abuse, so I guess prison and lifelong registration are the only other solutions.

Unfortunately, I think I see a sinister logic to all this. Picking up on S.cotus's idea that a large percentage of the population should be in prison, I believe that the real objective is eventually to designate almost everyone as a sex offender. The exception would, of course, be lawyers. This would provide a number of benefits. Lawyers would finally achieve total control of the government. This would be appropriate, since only lawyers are really qualifed to govern. The value of their stock in CCA and other private prison companies would soar. The cost and size of government could be dramatically curtailed. After all, sex offenders don't deserve social services. Who cares whether they have places to live? So what if they starve? And, of course, sex offenders would not be permitted to vote.

But what about their children? Simple. You pass a law that the children of sex offeners are automatically sex offenders. Then they don't need schools or medical care since sex offenders don't deserve them.

Furthermore, we won't need any cumbersome criminal justice system, because sex offenders don't deserve due process or justice. Of course, there will be hoards of homeless, starving sex offenders, but not to worry. Lawyers can live in heavily fortified gated communities and have armed escorts to the compounds containing shops and expensive restaurants, or to the airport to go on Carribean vacations. Certain trusted sex offenders can perform the menial tasks for the legal community. They will behave, because the threat of being thrown out on the street hangs over them.

For that matter, the members of the legal class had better behave and do the bidding of the great prison industrial complex which employs them. After all, with minimal government and no criminal justice system, we won't need so many of them. If they don't toe the line, they can be declared sex offenders and banished to the jungle outside the gates.

Posted by: disillusioned layman | Aug 23, 2008 1:43:17 PM

Disillusioned Layman,

Please provide a citation (e.g. reported appellate case, or some way of ascertaining the facts behind a conviction) to one person convicted of child abuse merely for spanking a kid. If you can’t do that, then 1) your argument falls apart; and 2) you illustrate why the lay people are blamed for ruining the US.

Posted by: S.c.cutus | Aug 25, 2008 1:07:13 PM


Have you forgotten how to spell your name, or are you somebody new?

I didn't say spanking was illegal (although it is in over 20 countries). I said it was considered child abuse, which it is by many people. Assemblywoman Sally Lieber of California has introduced two bills, AB 755 in 2007 and AB 2318 in 2008 to ban spanking. Neither bill went very far, but they generated a lot of news coverage. Brookline, MA passed a resolution against spanking, although it did not make it illegal. However, that is beside the point. I am not making an argument, so it can't fall apart. I am simply attempting to carry the legal machinations regarding Mr. Dougherty to their logical, albeit (I hope) absurd, conclusion. Since you are apparently a lawyer, as opposed to a lay person, you are unable to see this. Have you ever heard of S.arcas.m?

Posted by: disillusioned layman | Aug 25, 2008 7:54:25 PM

Okay, you have not provided a citation to someone that was actually convicted of disciplining their child via spanking.

Posted by: S.c.cutus | Aug 26, 2008 10:57:54 AM

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