Sunday, December 6, 2009

Kiddie porn: Risky to ignore

Let's say you are a defense attorney assigned a criminal case that has nothing to do with sex. A garden-variety case of robbery and murder. No rape, no pedophilia, nothing sexual at all.

You might want to think about sex, anyway.

In a case out of Missouri, the high court ruled that it was reversible error for the defense attorney not to have checked out the child pornography on the murder victim's computer.

What relevance does that have to murder, you might ask?

Not much. The defendant, Mark Gill, and a buddy kidnapped Ralph Lape from his home in 2002, bound him with plastic ties and duct tape, and murdered him in a corn field. The motive was financial gain: Gill had learned that Lape had a large amount of money in his bank account.

But when Gill was arrested, he had Lape's computer with him, and investigators found images of underage girls and bestiality. So, when the prosecution presented evidence that the victim was an upstanding fellow, the defense attorney should have brought in those images as rebuttal evidence of bad moral character. Perhaps the jury would not have been so quick to impose the death penalty if it had not heard family members give a series of glowing and unrebutted reviews of Lape's generous character, the court reasoned.

Under the landmark case of Strickland v. Washington, the defense attorney's failure to pursue this angle was ineffective assistance of counsel, meriting reversal of Gill's death sentence and a new penalty trial, the court ruled.

The smutty material was also an issue in the trial of the co-defendant, Justin Brown. The prosecutor won a motion excluding the computer's sexual content as irrelevant unless the penalty phase witnesses opened the door by portraying the victim as someone who "walks on water" or as a "saint," in the trial judge's words. Accordingly, family witnesses were careful at Brown's trial not to overstate the victim's virtuous character. Brown was spared the death penalty, receiving a sentence of life without parole.

Mitigation usually focuses on defendant, not victim

Typically, it is defense attorneys' failure to present evidence of a defendant's good character that is grounds for reversible error under Strickland. In fact, just this week the U.S. Supreme Court in Porter v. McCullum unanimously reversed a death verdict because the defense attorney failed to present evidence of military heroism during the Korean War, as well as other potentially mitigating facts such as post-war adjustment problems, childhood victimization, a brain abnormality, inadequate schooling, and limited literacy.

Pornography ubiquitous

At Gill's penalty phase retrial, one likely issue for the prosecution will be others with access to the computer. Ironically, it wasn't only the victim who downloaded pornography onto the computer. The murderer, Gill, also downloaded pornography, according to the prosecutor, even using the victim's credit cards to pay for it!

That isn't surprising. As it turns out, just about every male over the age of nine has looked at online pornography, according to new research out of Montreal. The researcher, Simon Louis Lajeunesse of the Universite de Montreal, said when he set out to find men in their 20s who had not consumed pornography, he could not find any. He found that most boys seek out pornographic material by the age of 10, when they are most sexually curious.

The researcher said his preliminary findings, funded by the Interdisciplinary Research Center on Family Violence and Violence Against Women, refute the "demonization" of pornography. Contrary to popular beliefs, he said, pornography does not produce negative attitudes toward women or aggressive behavior for men:

"Pornography hasn't changed [men's] perception of women or their relationship which they all want as harmonious and fulfilling as possible. Those who could not live out their fantasy in real life with their partner simply set aside the fantasy. The fantasy is broken in the real world and men don't want their partner to look like a porn star."
As online pornography becomes more ubiquitous, it will undoubtedly play a more prominent role in court cases. It will be interesting to see whether jurors care. Unless the pornography is particularly extreme or offensive, some male jurors may feel sympathy for the victim. They may see the issue as a distraction or even turn against defense attorneys who try to sully a victim's reputation.

Lape, after all, was letting Gill stay in a trailer on his property at the time he was killed. And just because he may have had some ugly sexual interests, that does not mean he was not a financially generous man as his family members testified.

The Missouri Supreme Court opinion in Gill v. Missouri is online here. The Southeast Missourian has news coverage. Additional case background is online here.

4 comments:

  1. I suspect that the inability of finding men who have never used pornography is the result of looking in the wrong place, not looking hard enough, or both. Those of us who are male and really don't get the appeal of looking at naked people doing whatever it is that people in pornographic videos do really do exist--despite the number of times that I been told that I don't, even by people with Ph.D.'s, even by people writing textbooks on human sexuality (which is a really strange feeling, by the way.) But we probably don't hang out wherever it is that most sex-researchers recruit, and we also fit various demographic characteristics that make people less inclined to participate in studies on sexuality.

    20 is also a rather small sample size, given the research topic.

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  2. No category of offense has seen a more dramatic increase in sentencing than child pornography. The sex offender laws are so out of control now, since the Bush presidency The newly constituted laws are based on nationally sensationalized cases of severe child victimization, skewed data, public hysteria and political gain. One image downloaded and passed on...possession and distribution of child pornography. And what is "child" pornography. Most of the time, it's a sexual depiction of a 14 or 15 yr. old fully developed "child" who usually voluntarily posed in a lascivious position and/or was paid. The changes to the child pornography guidelines are not the product of an empirically demonstrated need for consistently tougher sentencing. Instead, these changes are largely the consequence of numerous morality earmarks' slipped into larger bills over the last 15 years, often without notice, debate or empirical study of any kind. Congressionally mandated changes were even enacted to prevent the Commission from implementing carefully considered modifications which would have lowered applicable offense levels.

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  3. This is a bit off-topic but since when was the victim's moral character relevant to a murder trial of this kind? They murdered someone, in cold blood, for money - that's a heinous crime, not because the victim was a nice guy (or not), but because murder is wrong. If you mugged Hitler because you wanted his wallet and watch, you'd still be a mugger.

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  4. I just saw this under Wikipedia's section for pornography laws in Australia. I couldn't believe what I was reading and I thought I would share it:

    The NSW Supreme Court upheld[11] a Local Court decision that the animated Simpsons characters "depicted" and thus "could be considered" real people

    How can this be reasoned? These are cartoon characters, not real people; the Simpson family never existed. I cannot believe that those in the legal profession could even think this, much less agree to it. Is this sort of reasoning becoming more prevalent throughout the world? Some countries appear to disregard cartoon depictions while others don't, but NEVER have I read anything like this anywhere else.


    Here's another example from the same entry as the one above:

    Controversy arose over the perceived ban on small breasted women in pornography after a South Australian court established [citation needed] that if a consenting adult in pornography were "reasonably" deemed to look under the age of consent, then they could be considered depictions of child pornography. Criteria described stated "small breasts" as one of few examples, leading to the outrage.

    Again, how is this rational and legally sound? Many adult women have small breasts and look young due to genetic makeup or diseases such as diabetes (I know of a few). Same with some men. How can viewing sex with them be deemed wrong, or, at the least, questionable? Now the law is going to criminalize sex involving adults based on the way they look, at least in Australia. Is this a sign that legislation and court cases regarding both SVP and even pornography are going off the deep end?

    Karen, what you said before about rational thinking absent in a mindless bureaucracy? THESE appear to be great examples of that.

    Or am I missing something?

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