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.