I'm not aware of any jurisdictions with a conviction rate below about 90%
[citation needed]
If you include people stupid enough to plead out, you *might* get there, in your dreams, but even traffic court has only a 50% conviction rate.
Your claim is false on the face of it. Using an over-worked public defender, whose only interest in the case is to dispose of it so they can get on to the next case, is the worst thing you can do.
Firing the PD also sends a signal to the other side that you're not going to just roll over and die. They have two options at that point - proceed, or drop the case.
A bogus case like this, there's a good chance they'll drop it, since title 18 section 2252a makes it clear that deleting the file is an affirmative defense, as is possession of less than 3 (three) items of k.p.
The FBI makes mistakes, but they typically only turn these over to prosecutors when they're confident they can make the case
The FBI clearly made a mistake here, and is compounding it by lying. 2252 and 2252a state clearly that you have the option to either delete the material or inform law enforcement. Once they saw the material had already been long deleted, that should have been the end of it, especially since it falls under the "less than 3" cited in the statute. Saying that people have to inform law enforcement is clearly contradicted in the statute.
Innocent people are charged and convicted all the time - it's estimated that 20% of all death-row inmates are innocent, but don't take my word for it - just look at all the ones who have been released because of DNA testing.
He wasn't in possession of kiddie porn. The FBI reconstituted the data (which was in 4k blocks on the drive and totally inaccessible to him) and re-created the kiddie porn.
Accidental possession isn't "strict liability". It's strict liability ONLY if you KNOWINGLY make, distribute, or possess kiddie porn. If you did it knowingly, then your intent is irrelevant. If you knew the kid was under-age, your "intent" to "make a harmless art film" is irrelevant.
http://www.law.cornell.edu/uscode/18/usc_sec_18_00002252----000-.html
Possession of less than 3 items is an affirmative defense. Making a good-faith attempt to destroy the material in question is an affirmative defense. they don't have to report it if they've deleted the images.
Also, 18 2252a uses the term "knowingly", and subsection d 2 a again says that if the recipient then destroys it, that is sufficient.
The law is clear - if someone sends you kiddie porn, or you are tricked into downloading some, you only have to immediately delete it.
The deal is, he has to prove accidental, make the jury believe that, etc.
No he doesn't. Don't they teach your your fundamental rights any more?
The defendant doesn't have to prove a damned thing. That's the law.
The prosecution has to prove both the act and the intent - and has to prove both beyond a reasonable doubt. Their own evidence indicates that it wasn't his intent. It was one file that the defendant couldn't even access himself.
Reasonable doubt is a much higher standard than "balance of the probabilities" in civil cases.
On top of which, they would have to prove that he was the one who downloaded it in the first place. Did other people have access to the computer, etc? No intent beyond a reasonable doubt, no felony conviction. Let them re-enact the process of "recovering the file" for the jury to see that he wasn't actually in possession of kiddie porn - they had to reconstitute the file (out of 4k blocks of data), thus recreating the kiddie porn.
That's your first mistake. YOU, as defendant, do NOT have to make your case. You don't have to say one word in your own defense, beyond "not guilty."
THEY have to make the case beyond a reasonable doubt. Just the presenting of the "evidence" as described would make it VERY doubtful that the person had the intent to download kiddie porn, and without intent, there's no felony conviction.
Don't you people know your basic rights any more? "Innocent until proven guilty."
And objecting isn't that hard. If it sounds fishy, object. If it's not relevant, object. If it's "I heard this person say", object.
As for physical evidence - break the chain of custody - though in this case, its trivial - the computer was not under the defendants' care and control at all times, so prove the defendant was the one who did the dead.
You don't need to be a lawyer to figure all this out. I've had to do it often enough, and not in "small claims court." I always win, because unlike a lawyer (1) I *know* I'm innocent, and (2) it's *my* butt on the line. You can't fake sincerity and righteous anger; the judge will figure it out.
BTW - If you're wrongfully charged, we have this wonderful tool called the Internet - you may have heard of it. You can do your research there, find sample pleadings and motions, etc. If he's going to plead guilty when he's not, he has nothing to lose by pleading innocent and giving it his best shot.
You put rapists in prison so they can't rape anybody else.
So all those "soap on a rope" jokes aren't true?
Why does the US have more people in jail than ANY other country in the world?
Pot-heads. The pot-heads in Washington keep throwing (other) pot-heads into jail. Seems to me that fines and confiscation would be cheaper - but then again, I don't do drugs, unlike the people who keep winning the top spot in the good ole USofA.
They almost certainly would. The prosecutor just has to make it clear that the only relevant fact is that he did download the images. It's completely irrelevant to his guilt or innocence that he immediately deleted the images. These laws leave absolutely no wiggle room with regards to intent.
You're fired. Look up "mens rea". Proof of intent "beyond a reasonable doubt" is required for felony convictions.
Innocent people are more likely to be flustered, etc., when confronted with allegations of a crime.
They'll act guilty, whereas the true crook will look you right in the eye and lie. He or she has nothing to lose by lying.
The old story of "liars can't look you straight in the eye" is a lie. Crooks do it all the time. An honest person would be ashamed tha people would even *think* that they did something wrong, which is why they act in ways that pop psychology says "they're acting guilty."
"No warrant, no entry. I have nothing to hide, but I do value my privacy, and you should be spending your time catching crooks, not trying to weasel around the law like a crook. Have a nice day."
If you're innocent and your lawyer says "cop a plea" your next words should always be "you're fired". Same with any plea bargain. Don't even consider it. You don't know what society is going to be like in 20 years - maybe that innocent plea bargain will make you eligible for compulsory military service or organ donation. Stranger things have happened.
So let ordinary citizens defend people who can't afford lawyers and who are getting screwed over by public defenders.
If you have the legal right to represent yourself even though you're not a lawyer, why don't you have the legal right to have another non-lawyer who you have more confidence in represent you?
I've gone up against experienced lawyers (including the government 3 times) at least half a dozen times - I've won every time. From my experience, most lawyers don't even know all that much law. They just know how to draft and file motions with the right words, and how to navigate the court system. It's not that hard, there are already too many lawyers, and we need to get these blood-sucking ticks out of the legal system if we want justice instead of "the law."
However, I think it is great advice to call the FBI when you see something like that, get it on record that you accidentally downloaded kiddy porn and you want to know what the FBI is doing to catch the bastards who make and distribute it.
The FBI is *not* there to give you legal advice, or act in your best interests. Their job is to throw your ass in jail if you possess kiddie pr0n. They will say they have no discretion.
The truth is your best defense. They admit you couldn't access it - didn't even know it was still there - then it wasn't "in his possession" - because legally in this case, possession means CONTROL OVER. The case is shit, and he'll walk. Even a dumb jury will "get it." Reconstituting the bits means that, before they were reconstituted, he didn't have them either. It's like a glass of reconstituted orange juice - until you add water, you don't have orange juice, just frozen concentrate.
Depends where and the jury. If the guy was married and dling regular old porn and lived in a bible belt. There is a high chance the jury will ping the guy with guilty because of moral outrage alone. Juries are there to decide how guilty someone is, often that extends beyond what they happen to be guilty of.
Sacramento, California is hardly "the bible belt". The bible belt regards California as Sodom and Gomorrah ++. If the guy's being represented by a PD, he's better off representing himself than pleading guilty.
So let him defend himself. It's not that hard, and the judge is required to ensure that the proceedings are fair, and that the gov't doesn't abuse its' position.
The FBI could not comment on this specific case, but said if child pornography is ever downloaded accidentally, the user needs to call authorities immediately
There is NO requirement to "call the authorities". Delete it, preferably with a file shredder that opens up the file, overwrites each block with random bytes, closes the file, flushes the cache, THEN deletes the file. "Nothing to see here." Their "l33t toolz" (which are really just some perl scripts) won't recover it.
If you want to go fishing, go fish yourself somewhere else, not on the taxpayers dime.
On advice from his lawyer, he intends to plead guilty so that he will 'hopefully' end up with 3.5 years in jail, 10 years probation and a registration as a sex offender.
Fire the lawyer. No jury will convict.
"Deep int he hard drive" - it is to laugh. Must have been a really old hard drive - most of them are pretty shallow nowadays.
[X] Real prOGRammeRS USe STudLYCApS
[X] In Soviet Russia, bad code offsets YOU!
[X] Ask Tiger Woods wife to fix it instead - if she can beat Tiger Woods driver with any old club on her first try, she can probably fix bad code just by looking at it. Think female Chuck Norris.
[X] camelCaseStyle (humps in middle)
[X] ProperCaseStyle
[X] Title_Case_Style
[X] classic_style
[X] InJavaAllClassNamesMustBeAsLongAsPossible.AndRandomMixOfProperCaseAndALL_CAPS_YOU_IGNORANT_CLOD
[X] case CowboyNeal:// bad code to be offset with the purchase of a Bad Code Offset(on topic)
[X] HITLERcase - raises thread.terminate();
My point was that the claim of excessive electrical consumption is hypocritical CYA when they were offered, by their own IT department, ways to save electricity that would have also ended the SETI@home stuff, with a bogus excuse of "you're not allowed to do that". The school board isn't qualified to make those decisions - the IT department is.
The policy could have been applied selectively, or people who needed machines during non-standard hours could turn them on and wait a minute for them to boot up. Individual user machines shouldn't be on all night for people to remote into - either copy your files to a usb, stick them on a server, or email them to yourself.
These are student and teacher and secretary and principal machines at a school board, not developer boxes at some high-tech company.
No, but I think that the school district refusing for the last 3 years to allow their employees to institute a policy of turning most machines off automatically between 6pm and 6am is a big part of the problem. If they had allowed this, your question would have been mooted.
This is not about energy consumption - this is about a school board member who wanted to polish her image at election time.
Slashdot Mirror
[citation needed]
If you include people stupid enough to plead out, you *might* get there, in your dreams, but even traffic court has only a 50% conviction rate.
Your claim is false on the face of it. Using an over-worked public defender, whose only interest in the case is to dispose of it so they can get on to the next case, is the worst thing you can do.
Firing the PD also sends a signal to the other side that you're not going to just roll over and die. They have two options at that point - proceed, or drop the case.
A bogus case like this, there's a good chance they'll drop it, since title 18 section 2252a makes it clear that deleting the file is an affirmative defense, as is possession of less than 3 (three) items of k.p.
The FBI clearly made a mistake here, and is compounding it by lying. 2252 and 2252a state clearly that you have the option to either delete the material or inform law enforcement. Once they saw the material had already been long deleted, that should have been the end of it, especially since it falls under the "less than 3" cited in the statute. Saying that people have to inform law enforcement is clearly contradicted in the statute.
Innocent people are charged and convicted all the time - it's estimated that 20% of all death-row inmates are innocent, but don't take my word for it - just look at all the ones who have been released because of DNA testing.
If possession of orange juice drinks becomes illegal, but frozen concentrate isn't, they'll say not guilty.
And you sell juries short. Been there, done that.
Accidental possession isn't "strict liability". It's strict liability ONLY if you KNOWINGLY make, distribute, or possess kiddie porn. If you did it knowingly, then your intent is irrelevant. If you knew the kid was under-age, your "intent" to "make a harmless art film" is irrelevant. http://www.law.cornell.edu/uscode/18/usc_sec_18_00002252----000-.html Possession of less than 3 items is an affirmative defense. Making a good-faith attempt to destroy the material in question is an affirmative defense. they don't have to report it if they've deleted the images.
Also, 18 2252a uses the term "knowingly", and subsection d 2 a again says that if the recipient then destroys it, that is sufficient.
The law is clear - if someone sends you kiddie porn, or you are tricked into downloading some, you only have to immediately delete it.
No he doesn't. Don't they teach your your fundamental rights any more?
The defendant doesn't have to prove a damned thing. That's the law.
The prosecution has to prove both the act and the intent - and has to prove both beyond a reasonable doubt. Their own evidence indicates that it wasn't his intent. It was one file that the defendant couldn't even access himself.
Reasonable doubt is a much higher standard than "balance of the probabilities" in civil cases.
On top of which, they would have to prove that he was the one who downloaded it in the first place. Did other people have access to the computer, etc? No intent beyond a reasonable doubt, no felony conviction. Let them re-enact the process of "recovering the file" for the jury to see that he wasn't actually in possession of kiddie porn - they had to reconstitute the file (out of 4k blocks of data), thus recreating the kiddie porn.
They have no case.
That's your first mistake. YOU, as defendant, do NOT have to make your case. You don't have to say one word in your own defense, beyond "not guilty."
THEY have to make the case beyond a reasonable doubt. Just the presenting of the "evidence" as described would make it VERY doubtful that the person had the intent to download kiddie porn, and without intent, there's no felony conviction.
Don't you people know your basic rights any more? "Innocent until proven guilty."
And objecting isn't that hard. If it sounds fishy, object. If it's not relevant, object. If it's "I heard this person say", object.
As for physical evidence - break the chain of custody - though in this case, its trivial - the computer was not under the defendants' care and control at all times, so prove the defendant was the one who did the dead.
You don't need to be a lawyer to figure all this out. I've had to do it often enough, and not in "small claims court." I always win, because unlike a lawyer (1) I *know* I'm innocent, and (2) it's *my* butt on the line. You can't fake sincerity and righteous anger; the judge will figure it out.
BTW - If you're wrongfully charged, we have this wonderful tool called the Internet - you may have heard of it. You can do your research there, find sample pleadings and motions, etc. If he's going to plead guilty when he's not, he has nothing to lose by pleading innocent and giving it his best shot.
So all those "soap on a rope" jokes aren't true?
Why does the US have more people in jail than ANY other country in the world?
Pot-heads. The pot-heads in Washington keep throwing (other) pot-heads into jail. Seems to me that fines and confiscation would be cheaper - but then again, I don't do drugs, unlike the people who keep winning the top spot in the good ole USofA.
You're fired. Look up "mens rea". Proof of intent "beyond a reasonable doubt" is required for felony convictions.
Innocent people are more likely to be flustered, etc., when confronted with allegations of a crime.
They'll act guilty, whereas the true crook will look you right in the eye and lie. He or she has nothing to lose by lying.
The old story of "liars can't look you straight in the eye" is a lie. Crooks do it all the time. An honest person would be ashamed tha people would even *think* that they did something wrong, which is why they act in ways that pop psychology says "they're acting guilty."
"No warrant, no entry. I have nothing to hide, but I do value my privacy, and you should be spending your time catching crooks, not trying to weasel around the law like a crook. Have a nice day."
Absolutely.
If you're innocent and your lawyer says "cop a plea" your next words should always be "you're fired". Same with any plea bargain. Don't even consider it. You don't know what society is going to be like in 20 years - maybe that innocent plea bargain will make you eligible for compulsory military service or organ donation. Stranger things have happened.
So let ordinary citizens defend people who can't afford lawyers and who are getting screwed over by public defenders.
If you have the legal right to represent yourself even though you're not a lawyer, why don't you have the legal right to have another non-lawyer who you have more confidence in represent you?
I've gone up against experienced lawyers (including the government 3 times) at least half a dozen times - I've won every time. From my experience, most lawyers don't even know all that much law. They just know how to draft and file motions with the right words, and how to navigate the court system. It's not that hard, there are already too many lawyers, and we need to get these blood-sucking ticks out of the legal system if we want justice instead of "the law."
It's not evidence of a crime if you didn't intend to do the download - no "mens rea", so destroy it with impunity.
The FBI is *not* there to give you legal advice, or act in your best interests. Their job is to throw your ass in jail if you possess kiddie pr0n. They will say they have no discretion.
The truth is your best defense. They admit you couldn't access it - didn't even know it was still there - then it wasn't "in his possession" - because legally in this case, possession means CONTROL OVER. The case is shit, and he'll walk. Even a dumb jury will "get it." Reconstituting the bits means that, before they were reconstituted, he didn't have them either. It's like a glass of reconstituted orange juice - until you add water, you don't have orange juice, just frozen concentrate.
Sacramento, California is hardly "the bible belt". The bible belt regards California as Sodom and Gomorrah ++. If the guy's being represented by a PD, he's better off representing himself than pleading guilty.
So let him defend himself. It's not that hard, and the judge is required to ensure that the proceedings are fair, and that the gov't doesn't abuse its' position.
There is NO requirement to "call the authorities". Delete it, preferably with a file shredder that opens up the file, overwrites each block with random bytes, closes the file, flushes the cache, THEN deletes the file. "Nothing to see here." Their "l33t toolz" (which are really just some perl scripts) won't recover it.
If you don't have a warrant, you don't get entry.
If you want to go fishing, go fish yourself somewhere else, not on the taxpayers dime.
Fire the lawyer. No jury will convict. "Deep int he hard drive" - it is to laugh. Must have been a really old hard drive - most of them are pretty shallow nowadays.
Too late.
That's discrimination against the Scots (kilts) and women (skirts, dresses)!
Also, in several jurisdictions, topless is legal for both sexes.
If you've read the initial requirements for getting a Nintendo dev kit, you know this is a Good Thing!
Look on-line 6 cartridges for your printer (black, yellow, cyan, magenta, light cyan, light magenta) would have cost you $30.
They would have also held twice as much as the "starter cartridges" in your printer.
[X] Real prOGRammeRS USe STudLYCApS // bad code to be offset with the purchase of a Bad Code Offset (on topic)
[X] In Soviet Russia, bad code offsets YOU!
[X] Ask Tiger Woods wife to fix it instead - if she can beat Tiger Woods driver with any old club on her first try, she can probably fix bad code just by looking at it. Think female Chuck Norris.
[X] camelCaseStyle (humps in middle)
[X] ProperCaseStyle
[X] Title_Case_Style
[X] classic_style
[X] InJavaAllClassNamesMustBeAsLongAsPossible.AndRandomMixOfProperCaseAndALL_CAPS_YOU_IGNORANT_CLOD
[X] case CowboyNeal:
[X] HITLERcase - raises thread.terminate();
And I thought Wii Music stank ... this is actually worse.
It was a relief to see it end. What are they trying to do - encourage a run on Excedrin?
I'd hate to think how much more enhanced^Wworse it would have been if they had the MotionPlus.
My point was that the claim of excessive electrical consumption is hypocritical CYA when they were offered, by their own IT department, ways to save electricity that would have also ended the SETI@home stuff, with a bogus excuse of "you're not allowed to do that". The school board isn't qualified to make those decisions - the IT department is.
The policy could have been applied selectively, or people who needed machines during non-standard hours could turn them on and wait a minute for them to boot up. Individual user machines shouldn't be on all night for people to remote into - either copy your files to a usb, stick them on a server, or email them to yourself.
These are student and teacher and secretary and principal machines at a school board, not developer boxes at some high-tech company.
[X] I'm a zombie, you ignorant clod!
No, but I think that the school district refusing for the last 3 years to allow their employees to institute a policy of turning most machines off automatically between 6pm and 6am is a big part of the problem. If they had allowed this, your question would have been mooted.
This is not about energy consumption - this is about a school board member who wanted to polish her image at election time.