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May 5, 2013

Notable new Judge Weinstein opinion on child porn sentencing for juve offender

Over the weekend, experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) alerted me to what he called a "new and (again) excellent opinion by Judge Jack Weinstein" in U.S. v. D.M., 12-CR-170 (EDNY May 1, 2013) (available here).  The opinion runs nearly 50 pages, and Mark provided a summary which he has graciously allowed me to post here:

D.M. is a child porn possession case wherein Judge Weinstein imposed straight probation. What is rather unusual about the case (in addition to the sentence imposed) is the fact that the government initially charged the defendant with distribution, which carries a 5-year mandatory minimum, but later allowed the defendant to plead to a simple possession charge in order for the court not to be bound by the mandatory minimum after the defendant successfully completed a couple of polygraphs regarding whether he intended to distribute (as is typical, he had used a peer-to-peer site to obtain the contraband).

The nature of the plea negotiation is quite interesting, and, as Judge Weinstein rightly notes, counsel for both sides should be congratulated for their effort to seek justice, as opposed to the all-so-typical bidding war regarding months' imprisonment that mirrors what occurs in civil settlement negotiations rather than what should occur (and what did occur here). 

Judge Weinstein begins the opinion as follows: “This case illustrates the sensible cooperation of prosecutor, defense, experts and the court to save rather than destroy an adolescent found to have used his computer to view child pornography.”  How many judges can say that in any criminal case that is resolved by plea?  Far, far too few. 

Judge Weinstein ends thus: “The sentence imposed will provide an opportunity for defendant to succeed in therapy, at school, at attaining employment, and at becoming a functioning and law-abiding member of society. A sentence involving incarceration has been considered and is rejected.  All concerned are best served by following this course.”

This is a good read for all, regardless of practice focus. (Of course, those who have clients charged with child porn, it is a particularly good case to read and cite, not the least of which is because it is the first published opinion to discuss in substantive detail the Commission’s new Child Porn report).

May 5, 2013 at 11:21 PM | Permalink


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Is this the same Weinstein as the author of the great evidence book?

Posted by: liberty1st | May 5, 2013 11:27:39 PM

Yes, same one.

Posted by: Subethis | May 6, 2013 12:55:02 AM

I am not really thrilled by making his judgment dependent upon a lie-detector test. Most sex offender suspects are nervous to the point of showing a bald-faced lie when they recite there name during the control questioning. In addition, the bias of operators are more apparent in sex offender cases.

Now, this may have actually been a result of going the OTHER direction: Making sure the defendant PASSED the test. I have no doubt that the questions that were asked, including the methodologies, were geared toward an optimal result. But for the run of the mill sex offender, the questioning is invariably geared toward forcing the subject to confess, even to crimes he may not have committed.

Posted by: Eric Knight | May 6, 2013 1:15:54 AM

Polygraphs don't work. The fact that criminal regimes continue to use them fully enforces the fact that they are criminal morons who should never, never be trusted.

I saw a TV documentary over the weekend about a trial and they were interviewing the jurors. Most of those people could not define "fact" if their lives depended on it. Common citizens have no business being part of a jury pool. And most of the criminal regimes' employees have no business working to convict anyone. The U.S. justice system remains pathetic.

Posted by: FRegistryTerrorists | May 6, 2013 8:52:56 AM

FRegistryTerrorists --

Mr. X belts Mr. Y over the head with a tire iron in order to get his wallet.

If you don't want prosecutors to bring a charge, and jurors to decide it, what system do you recommend?

Posted by: Bill Otis | May 6, 2013 9:01:13 AM

Eric, i'm sure that the questions "have you ever molested a child" and "have you ever raped a child," are real stumbling blocks for the icky pervs.

Posted by: Erika | May 6, 2013 9:08:07 AM

Once again it is a "peer to peer" website that seems to be the root of all evil. One never knows what will end up on your computer when you go to these sites.
Juvenile or Adult, the sentence should be the same, straight probation the first time, after that, well, you knew better.

Posted by: kat | May 6, 2013 9:26:40 AM

Bill Otis (May 6, 2013 9:01:13 AM):

Can't say I've put a ton of thought into it. It's not a problem I'm worried about helping solve. And I have so little faith in the huge majority of U.S. citizens that I don't think I would waste my time trying to fix something that probably can't be. Best just to let stupid happen.

I suspect professional jurists would be the way to go. And force everyone working for the criminal regimes to have psych evaluations every 6 months or so. And drop junk science and conjecture.

Posted by: FRegistryTerrorists | May 6, 2013 10:59:27 AM

Erika (May 6, 2013 9:08:07 AM):

Polygraphs don't work. Given that, does your comment make any sense?

Posted by: FRegistryTerrorists | May 6, 2013 11:02:52 AM

interesting case which once again raises the not always clear question of "icky perv" or "loser perv" - in many of these child pornography (and online socilitation) cases - especially involving young defendants - the defense is basically that the defendant is a complete loser who is unable to effectively to communicate with girls so they turn to the computer to satisfy their lust for girls. Ironically, had the defendant as a 14 year old been more able to communicate with actual 14 year old girls, there is a good chance that he wouldn't have to spend his life listed on the sex offender as a disgusting icky perv.

One especially difficult issue is in this sort of case, that of course, for a teenaged boy to be attracted to teenaged girls is hardly a sign of a sexual disorder or deviance - hence, in this case, the mere possession of child porn does not necessarily show that the defendant is an icky perv. After all, he was a juvenile male as young as 14 years old when he obtained the images. Of course, in this case, it seems that he had numerous images of very young children - as young as three years old. That suggests that he may be in fact a digusting icky perv and not a loser.

But effectively, it seems that ultimately the verdict is that this guy is a loser - it is amazing that 5 professionals all agreed that this guy is just a total loser and not an icky perv. And that if maybe he you know actually tries talking to young women around his age, he might be okay (never mind that the odds of him having a relationship with a young woman around his age is much lower now that the guy is on the sex offender registry as an icky perv child pornography offender).

But ultimately, despite the fact that a potential icky perv was let go by the court doesn't really bother me very much in this case - the evidence that the defendant was in fact a complete loser and not an icky perv is strong. What bothers me about this case is the fact that the defendant reported that he first saw child porn when he was 14 and a "friend" showed him a picture of a naked 11 year old girl. What bothers me is that i'm wondering how did his "friend" get that photo - and was his "friend" in fact a disgusting icky perv who may have actually sexually assaulted a child? Or was there no friend and no photo and did the defendant at the age of 14 actually sexually assault an 11 year old girl? That would definitely make him a digusting icky perv (as well as destroy the basis for his diagnosis as being a loser perv but not an icky perv). That thought is really bothering me about this case - and i find it a bit disappointing that there appears to be no examination of his initial story - in fact, they reported that he had no assaulted any children since he turned 18 (or 4 years ago, which was most at the age of 16 since he is 22 and was initially arrested 2 years ago at the age of 20) it appears that they made no thought on whether he might have in fact sexually assaulted a child (either alone or with other boys) when he was younger.

or it could be that the defendant is telling teh truth about how he got into seeing images of young children being raped and its bothering me because its just me being oversensitive about the problem of a group of 13/14 year old boys sexually assaulting 11 year old girls because it happened to me. Maybe this defendant really is a loser perv, but i still worry that he is an icky perv and got away without punishment due to pretending to be a loser.

Posted by: Erika | May 6, 2013 11:30:02 AM

Maybe, just maybe, "it just is what it is". A young guy who got caught with porn on his computer, whether he wanted to download adult porn and got a "hop-a-long" attachment from a share-website, or if he actually intended to download kiddie porn, he "looked" and that was it. Maybe he "looked by himself" maybe he "looked with a bunch of his friends". He didn't make the porn, he didn't distribute the porn, heck, it was probably on a Free website and he didn't even buy the porn. Are we to now assume this guy "WOULD" have gone on to actually molest a child? We wouldn't Assume that someone who gets drunk once in their life will become an alcoholic, or that someone who inhales weed will become a junkie.
Why ASSUME that these guys would go on to molest children?
People are curious and "look" at stuff, it's a human behaviour we can't get away from. Calling these guys "icky pervs" or "loser pervs" doesn't help the situation. Too many prosecutors out there trying to make cases like this into something they are not, for what, to ruin as many lives as they can and make themselves look good.

Posted by: kat | May 6, 2013 12:16:00 PM

FRegistryTerrorists --

"I suspect professional jurists would be the way to go."

But the Constitution requires a jury of ordinary citizens, not professionals. Did the Founders not understand the fallibility of ordinary citizens?

I'm also interested in your comment that, "Best just to let stupid happen."

I don't understand what you mean. Do you mean that, given the deficiencies of the system, we should just take a pass and not prosecute the guy who belts the other guy over the head to steal his wallet? Just tell the fellow with the cracked skull and no wallet that, hey, stuff happens, so move along?

Posted by: Bill Otis | May 6, 2013 12:51:15 PM

Good for the defendant, but polygraphs ought to be beside the point, as they are unreliable. It would be better if we were able to reach the point of admitting that passive viewing of this material is simply not an offense worthy of incarceration, period.

Posted by: D.M. | May 6, 2013 1:42:26 PM

kat, this charming defendant had hundreds of photos and videos of children as young as 3 being raped and sexually assaulted. He intentionally sought out such images reportedly after a "friend" showed him a picture of an 11 year old girl when he was 14 which made him want to seek out more images of children. That cannot be explained away as mere curiousity. And its also perfectly reasonable to question that explanation (especially in light of the fact that at most the sex offender treatment people seem to have only went back to when he was 16 years old in their inquiries).

And calling the defendant a perv of somesort is simply stating the facts - his own defense witness evaluation shows that he has multiple paraphillas. His defense was that he is merely a socially awkward porn addict who has trouble talking to girls and not a pedophile. Why that results in him having hundreds of images of young children being raped i do not know, but the experts all agreed that was the case. In fact, his entire defense amounts to telling the court about what a loser he was. That is why i think its perfectly fair to call this defendant a "loser perv."

i do not really understand why anyone would be attracted to any pornography and do not understand its appeal at all - but apparently it has something to do with a severe imagination deficit in the male of our species ;)

Erika :)

Posted by: Erika | May 6, 2013 5:57:54 PM

D.M., most of these passive child pron defendents are dangerous pedophiles [or icky pervs as i prefer] - the arguemnt for incarceration if only for the purposes of incapacitation is overwhelming.

Posted by: Erika | May 6, 2013 6:04:38 PM

Bill Otis (May 6, 2013 12:51:15 PM):

I think that citizens and the environment were a lot different when the Founders wrote the Constitution. I think people were a million times more serious back then about what it meant to be an American. The U.S. today is a hateful place where people don't care about being Americans.

You aren't saying that you trust ordinary citizens to be jurors, are you? I'm just not okay with the prosecuting machine imprisoning innocent people.

What I meant by "Best just to let stupid happen" is that the U.S. justice system is stupid and I'm not going to be worrying about trying to do anything about it. The only thing I am going to continue to do is try to keep them broke, as all government should be.

I'm all for arresting and prosecuting people, but only when we can prove that we got the right people. If we can't, it's just too bad for us and we have to figure out how to do better, not convict innocent people. And I'm against prosecuting people at all if we can't be better than them and treat them fairly (which is why I would never turn anyone in for any sex crime).

"If you see something, do nothing."

Posted by: FRegistryTerrorists | May 6, 2013 6:20:48 PM


I propose a VFL list so that the males of the species know whom (icky females) to avoid.

I find this comment from Judge Weinstein's Sentencing Report interesting, 2nd paragraph - Page 4:

"The crime is serious. Punishment is required. Defendant's guilty plea will result in the stain of a federal felony conviction for a sex-related crime. Extensive restrictions affecting where he can live and work, and how he will be controlled, will follow him for many years."

I think the good judge has it right and just acknowledged that the registry is punative and not regulatory! He got something right that the nine Supreme Black Pajama wearers could not comprehend.

Posted by: albeed | May 6, 2013 9:49:02 PM

Right you are.

Maybe your personal issues with this subject make you unfairly biased, but you're entitled to your opinions, just like the rest of us.

Posted by: kat | May 7, 2013 10:28:12 AM

Erika -

Please define the word "pedophile."

Posted by: Brian G. | May 7, 2013 11:03:06 PM

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