THE SCORN OF KIDDIE PORN, OR JUST AN INNOCENT MISTAKE, OFFICER?

“THE SCORN OF KIDDIE PORN, OR JUST AN INNOCENT MISTAKE, OFFICER?”

Nowadays, it is hardly a secret that many internet users spend time looking at “adult content” websites, including lawful, legal adult imagery – in other words, they look at online pornography, or “internet porn”. Well, guess what? Many of these sites use pages and pages of alluring “thumbnails” that, at times, also contain illegal images of child pornography or “kiddie porn,” for short. Other such sites quickly link you to pop-up pages that do the same. Concerning? You bet. That means that if you (“Me? Why, never, of course”) or anyone you know (the “I have a friend…” call) ever takes a quick look at human nakedness on line, at work or at home, there is a risk that an illegal child porn image will have been displayed on your computer. Yep. That can happen. And anything, including each and every such thumbnail image, that is displayed on your PC (or iPad or tablet or iTouch or smart phone) screen is ALSO then stored in the temp or the cache files on that gadget’s hard drive. “X-ing out” of it, or deleting it, or closing the page, or navigating away from it, though, does NOT mean that this possibly unseen but potentially illegal imagery is also no longer “there”. It often is. And it remains even after a cache file or temp file “clean up”, at least if that gadget’s hard drive is ever inspected by a forensic computer expert. 

Scared yet? After all, Halloween and Freakfest are almost here. Read on… because it gets more frightening than that. Well, friends, that is not your only concern. (Or “your friend’s”.) 

You see, last April, the law in Wisconsin changed to require – that’s right, “REQUIRE” – that anyone who knowingly possesses, or in other words, is caught with even one such illegal image on their whatever gizmo, must, repeat MUST, spend three years in prison. Waupun. Dodge. For “kiddie porn.” JUST ONE.

Why should you care? Well, maybe you shouldn't, because maybe you are a member of that population group that is able to avoid simple temptation and therefore does not, never will, and just couldn't look at adult porn. 

But if you are not so disciplined, or in other words, if you are a mere mortal, then you should keep this in mind. You see, there could come a day when an officer calls you, or knocks on your door – or knocks DOWN your door (armed with a search warrant for your PC or other gizmos, and they take them all) – and then manages to find or recover or uncover evidence that your gizmo has illegal child porn imagery on it. This may seem an unlikely scenario, and it may be. But others may also use your PC or other web access device, and what if they do so? Or what if they use your wireless router signal to log on to such sites or worse, real kiddie porn sites? And leave the IP address (your internet access “address”, practically speaking) that is yours and yours alone?? 

There is no simple answer. But there are some basic pieces of advice to heed. 

First, if you think your PC is infected, for goodness sake, don’t take it right down to the police or the local repair shop; they WILL find it and they WON’T believe you when you say you had no idea. Turn off the machine. Call a lawyer who knows what to do. Not a prosecuting attorney, mind you, but a skilled, knowledgeable criminal defense attorney. 

Second, if you actually face possible investigation or, worse, child porn charges, well, then, immediately consult with an experienced criminal defense attorney – one who has handled this situation and these cases in the past. 

Third, do not make any, any, or ANY statements to the police (or to your employer or your ex or your not-so-best friend, if that is who is asking) unless and until you have consulted with an attorney with clear experience in defending these types of cases. Silence is golden here, until you have real legal advice. And it is allowed, too. 

Oh, well, actually, there is one easier, simpler, if less desirable solution. DON’T LOOK AT PORN ON THE WEB. ANY! Yep. That is it. that is your “easy” button. Hmmm…

• Chris Van Wagner, at Van Wagner & Wood, S.C., Madison, WI (an attorney with vast experience sagely advising folks who have “a friend” who looks at questionable web “stuff” and with even more experience successfully representing folks who are sometimes their own worst enemy, but at other times, wrongly accused.)

Felony Conviction & Firearm Hunting

Q: If I have been convicted of a felony, can I still buy a hunting license in the state of Wisconsin, and hunt during the 2011 deer season?

If you are asking if you can rifle hunt deer, the answer is no; however, you can hunt deer with a long bow and arrow, recurve bow, compound bow or composite bow. Crossbows are illegal in the State of Wisconsin, with an exception for handicapped people.

A person with a felony conviction is legally able to purchase a hunting license in the State of Wisconsin even though they cannot hunt with a gun, nor tag a deer, bear or other game that has been killed with a gun.

More short hunting answers:

• Can a convicted felon buy a hunting license? Yes.


• Can a convicted felon possess a rifle, handgun or muzzleloader? No.


• Can a convicted felon join a hunting group? No.


• Can a convicted felon use a bow and arrow to hunt? Yes.


• Can a convicted felon hunt? Yes, so long as he or she does not possess a firearm to do so.


• Can a convicted felon hunt deer? Yes, but not with a firearm (only with a bow & arrow).


• Can a convicted felon hunt with a compound bow? Yes, during bow & arrow season.


• Is a BB gun a firearm? No; BB guns are expressly excluded by Wisconsin legislation as firearms.

Under Wisconsin laws, it is illegal for a felon to possess a firearm, or for any person to provide a felon with a firearm. Wisconsin Statute 941.29(2) expressly prohibits any person who has previously been convicted of a felony offense in any state from possessing a firearm at any time, for any purpose, while in the state of Wisconsin.

A felon is a person who has previously been convicted of any felony offense in this or any other state. A felony conviction includes being found guilty of a felony at trial, pleading ‘guilty’ to a felony offense, and pleading ‘no contest’ to a felony charge and being found guilty of a felony. Additionally, if you plea bargained for a lesser offense, and the lesser offense was a felony, it is still a felony conviction.

A felony conviction in another state equally prohibits that felon from hunting in Wisconsin.

Helpful information:

• Felon Possession Firearm, Wisconsin Statute 941.29(2)


• Wisconsin Hunting Laws, Rules & Regulations


• Felon Firearm Possession In Other States


• BB Guns


• Wisconsin No Firearm School Zone

Hunting, Fishing & Trapping Licenses

• Licensing Requirements


• Armed Forces Privileges


• Antlerless Deer (Bonus) Carcass Tag Availability


• Bow Hunter Safety Education Certification


• Conservation Patron License Nonresident


• Conservation Patron License Resident


• CWD Carcass Tag Agents


• DNR Service Center Locations


• Duplicate Safety Education Certificate


• Earn a Buck Prequalification


• Fishing Regulations


• Hunting and Fishing License Fees and Information (Resident)


• Hunting and Fishing License Fees and Information (Non-Resident)


• Hunting Regulations


• Hunter Safety Education Certification


• Licenses and Permits for People with Disabilities


• License Sales Locations


• Safety Education Instructor Certification


• Hunting & Trapping Seasons Dates


• Setline and Bank Pole Licenses


• Trapper Education Certification


• Trapping Information

Smiley Face Killers

If you have seen the Today Show on MSNBC, ABC News, picked up on Albany Times, or read Village Voice, you’ve likely noted irregularities amongst the media.

As is the case with the smiley face killers, police often provide numerous reports, some of which are constructed long after the incident. But when police “want their man” and they have some evidence, it is not impossible to imagine that they might go to great lengths to get that evidence into a trial to convict the person they believe committed the crime. Sometimes the investigator’s narrow focus on the need to make an arrest can lead to sloppy work or worse. When your only tool is a hammer, you tend to see every problem as a nail. In short, when police believe a particular person is the “do-er”, the killer, then they tend to see every sign that points to that suspect, sometimes missing other better suspects along the way.

Another common phenomena in criminal investigations is one of mistaken cause and effect. For example, our webmaster has a favorite statistical analogy: “If you were to assess the sale of ice cream and the number of arrests, you might mistakenly conclude that ice cream sales cause crime”. Whether all of the smiley face killings are tied, it is apparent that police would like to join all of those killings in which there was a smiley face present at the scene together to find one killer for many crimes. The serial killer theory may or may not be correct, but you can bet that if they find a perpetrator upon which to pin one, they will seek to pin on that person every other crimes with smiley faces left at the scene. This, of course, ignores the common criminal phenomena known as “copy cat” crimes.

Just as a mistake of fact is not an excuse to break the law in the criminal courts, it is also not an excuse that can be permitted to hold sway when advanced by police or investigators. Unfortunately, all too often, those types of mistakes of fact - like the ones that may be present in the smiley face killer crimes - are put together nicely and persuasively by the police for a DA to use to negotiate from what appears to be a stronger bargaining position – while the real facts and better suspects are left behind at the cop shop.

However, the facts of every case are that evidence is not evidence unless it is admitted into a trial, mistakes in fact can be disproved, and even hometown juries acquit people that may have previously been found guilty by public opinion. O. J. Simpson, for instance.

When we take a case at Van Wagner & Wood, we work it as though it will go to trial. We believe in our clients, and we stand ready to go the extra mile to defend them. That was the situation in a couple child sexual assault cases that I tried (and won) last year. The local communities had all but hung the accused, the DA’s claimed to have overwhelming evidence of guilt, but when the case concluded, a jury comprised of people from the same community found each of those two clients NOT guilty of anything.

Helpful links:
Murder
Sexual Assault

Megan's Law

Information about Megan's Law:

Sex Offender says that the sex offender registry was meant for safety, but has now become a public harassment. So, "what?" they ask will happen with the proposed sex offender license plates. Megan's Law Loophole, Megan's Law Website

Amber Alerts

What Should You Do in Case of an Amber Alert?

J.B. Van Hollen, Wisconsin Attorney General, provides a website about steps to take to help with an amber alert. http://amberalertwisconsin.org/content/whatdo.asp

Sign Up For Amber Alerts

Amber Alerts are available on the web (at http://www.amberalertwisconsin.org/default.asp) and can be added to cell phones (at https://www.wirelessamberalerts.org/index.jsp).

The Wisconsin Clearinghouse for Missing and Exploited Children and Adults is available online (at http://www.missingpersons.doj.wi.gov/).

The National Center For Missing & Abducted Children is available online (at http://www.missingkids.com/).

Sexual Exploitation

A special section about sexual exploitation of children is available online (at http://www.missingkids.com/missingkids/servlet/ResourceServlet?LanguageCountry=en_US&PageId=1442).

Sexual Assault

Definitions of the crime of sexual assault of a minor child, penalties.

Charges: Multiple Counts, Sexual Assault of A Child; Verdict: Not Guilty

Lesson: Less Is More - The 60-second Close

Wise old judges really are sometimes both. A few years back, a wise old judge name “Wright” told me and the prosecutor, just before closings in a homicide trial, that shorter was better and that no closing was the best idea of all. He claimed that jury studies showed that closings never win trials but sometimes lose them. Neither of us took the bait. So I argued in closing for 30 minutes in between the prosecutor’s 95 minute, 2-part stem-winder. (The shorter closing was the winning closing that day, thankfully.)

This week I took the wise old judge's advice in a felony sexual assault trial involving two stepdaughters that each accused my client of years of assaults. I sensed the prosecutor might hold back arguments for rebuttal. But she nonetheless argued well for 45 minutes in her initial closing argument. The jury struggled to pay attention, as they usually do at that point in a trial.

So, after getting my testifying client's approval, I gave a 60-second closing argument. I said simply that the only way to prove you did not do this was to testify, that my client did so, and that I could add nothing to that. I told them of the jury studies' conclusions, as well. I closed with a stern, whispered caution that before they marked my client as a child molester for life, they better be damn sure they were right. And then I sat down.

The jury studies may be right. The jury acquitted on both counts despite my “concession” of closing arguments to the prosecutor.

Simple lesson? Trials are won in jury selection and openings – and sometimes even on the evidence, but not in closing arguments. The latter are mere fodder for TV and press. (Maybe, though, it helps to tell the jury why you are not saying much; and always clear this unusual approach with the client... CYA is good.)

The problem most lawyers have is they fear that being so brief or risky is also setting up a claim of ineffective assistance. That fear is palpable and usually overwhelms logic and science. In this case, I fought with myself for two full days before I convinced myself to say little in closing. It helped that jury selection had gone very well, and openings seemed to be in our favor. But I ultimately did what my instinct said to do, which seems obvious in hindsight; but leaving well enough alone is difficult. (It helped that I had laryngitis, which I noted to the jury at the beginning of my 60-second non-argument to evoke laughter from the jury after a persuasive initial closing argument for conviction. A laughing jury is not usually a hanging jury – at least, not in these parts. I started by telling the jurors that I had good news. I paused for effect. Then I said “I have laryngitis.” The laughter helped make them forget any anger they felt for my client, I suspect.)

Next case.
CVW

Helpful Information:
First degree sexual assault of a child, Wisconsin Statute Stat 948.02(1))
Class B felony
Attorney Chris Van Wagner

In Voir Dire, Listen With Great Care

Still Seizing The Jury's Answers

Yesterday, Attorney Anne Reed posted in her BLOG:

September 04, 2007
Back To Basics: Nine Things To Look For In Voir Dire

Summer's over. It's time to refocus, and if the recent search traffic here is any indication, it's time to get ready for trial. Judges are back on the bench today, and a lot of this blog's readers spent some time yesterday researching their voir dire questions.

Which brings up a question I'm asked often. We're getting an idea of what voir dire questions to ask, readers tell me, but what do we do with the answers? We know we're supposed to get jurors talking and then listen, but what are we listening for?

I've been pretty clear about what I'm usually not listening for in voir dire. I set very little store by demographics, and I don't trust bias questions to bring out jurors' secret or unconscious biases. But I do have a list of the main things I'm listening for, the things I'm usually trying to figure out in voir dire. I use it both as a checklist to develop questions, and as a reminder of what I'm looking for as I listen. I keep tinkering with this list, but here's the version I'm using right now." Read her BLOG at: Deliberations - Back To Basics

Third Jury This Year, Second In A Felony Child Sexual Assault Trial ~ Still Seizing The Jury's Answers

“Anne:

Yesterday I picked my third jury of the year, and my second in a felony child sexual assault trial. Two experiences in yesterday’s voir dire reminded me of the critical importance to the DEFENSE of seizing voir dire answers and getting a major point across.

20 years ago, as a young state prosecutor in Trenton, New Jersey, I recall plea negotiating with ace NJ Public Defender Mike McConnell (who could sell air conditioning north of the Artic Circle) in a child sexual assault case. As he outlined his client’s claims of innocence, I responded that his guy ought to go to trial, if he did not do it (which, by the way, is precisely what I tell all my felony sex assault clients in today’s climate). He responded in words that had no real meaning for me as a “wet behind the ears” prosecutor, but ring so true in my current work. “Hey, Chris, you could try this case drunk. All ya gotta do [hey, this WAS Jersey, friend!) is put the baby on the stand and say her name and you will have every single juror ready to perform the castration on the spot! I can’t go to trial in this kind of case, Chris!”

Well, Mike Mac’s words came back to me last night, when I reflected on a spotlight moment yesterday in my latest voir dire effort. When the judge asked the potential jurors if the charges themselves would make it difficult for anyone to be fair and impartial, a woman raised her hand and said, “With these charges, I know he’s guilty already. I will find him guilty. He would have to prove his innocence to me, but I don’t think he can because of the fact of what he did.” Ouch.

She was excused, naturally, and before any attorney asked. The ADA, no doubt, was pleased. Then she – the prosecutor - gave me the answer I needed, in her own voir dire of the jurors. She used the phrase “in light of what the defendant did to these girls” as if the matter were a foregone conclusion. Double ouch?

Not at all.

Twenty minutes later, when the voir dire baton was passed to me, I seized upon the prosecutor’s ill-advised choice of words, and asked if any juror had heard her say what I had heard her say. An older, articulate female juror in the very front row – less than 5 feet from me – raised her hand and said she had heard that very phrase. I then honed in ad asked her how she felt about the phrase – even though for lots of reasons I knew I’d probably strike her if the AD did not.

She said: “I was very troubled and offended. I thought that the defendant was presumed innocent, and that it was OUR job to decide if he did anything to the girls. I found it uncomfortable that the DA was talking as if she KNEW he was guilty, and as if there were no presumption of innocence.”

[CVW to self: “Nice.”]

I then asked if anyone else had any other reaction or the same reaction to the DA’s ill-advised words. Half the hands in the box went up.

[CVW to self: “Very nice.”]

Then, just as another juror started speaking out about the same concerns, the prosecutor stood up and said that she thought she had said “what the defendant had allegedly done to the victims.”

CVW to jury venire: “That was not what I wrote down as a quote…

And then, I went right back to the “he’s guilty as sin” juror answer – with her long gone from the courtroom, asking they jury venire if they had heard HER answers. And if they had any reaction to HER views – i.e., “Fry the SOB!” The jurors then discussed for 10 full minutes – in their own words and with only a little prodding from me – the meaning and importance of the presumption of innocence AND the burden of proof beyond a reasonable doubt. The prosecutor – after 10 minutes of this GREAT defense stuff – finally started objecting to the “discussion” – another point scored for the defense voir dire, since the jury liked the discussion and the DA tried to stop it.

Today’s lesson, reinforced: in voir dire, listen with great care to the BAD things jurors – and the DA– are saying, and discuss them openly with the rest of the panel. It can only help the cause. Mike McConnell’s viewpoint notwithstanding … although he won too often for my then-prosecutor’s tastes."

CVW

Helpful information:
Criminal Trial Proceedings
10 Rules For Jurors

Sexual Assault Of A Minor Child

My boyfriend and I have dated for two years. My mother thinks we are having sex and says she is going to have my boyfriend arrested. He's 19, but we told my mother he was 16, and I'm 14. Can my boyfriend be arrested if I agreed to have sex with him? My mother thinks he is a minor!

ANSWER:

YES.

Regardless of whether your mother believes he is 16, the fact of the matter is that you are a minor, and it is illegal for a minor to have sexual intercourse or engage in any form of sexual conduct with another person regardless of the other person's age. Under Wisconsin law, a minor cannot agree (give consent) to have sex with another person (minor or adult).

If your mother files a report with the police, your boyfriend's identification information will reveal his true age, and the police will share that information with your mother. Once that report is filed, and whether your mother wants charges pressed, the police are required to investigate any sexual assault complaint involving a minor.

If your boyfriend is charged with sexual assault of a minor, he will be arrested. If he is convicted of sexual assault of a minor, the court can sentence him to imprisonment in a county jail or a prison, fine him, or both. As well, Wisconsin courts usually sentence people convicted of sexual assault of a minor to probation and require the offender to register with the sex offender registry, which will have a very devastating effect on his future jobs, activities, and even his residence. A convicted sex offender is prohibited from working in jobs involving children. A registered sex offender cannot go where children may be present such as a high school dances (even if his or her child is at that dance), or public places where children would likely gather such as amusement or water parks.

Under Wisconsin law, it is also illegal for your adult boyfriend to expose himself to you, entice you to have sex or expose yourself to him, or even have contact with you of a sexual nature.

Helpful information:
Sex crimes, Wisconsin
Sexual assault, Wisconsin
Sexual assault of a minor child, Wisconsin
Solicitation or Enticement
Entrapment