Prosecuting Internet-based sex crimes

Can expert witnesses play a role?

The following facts come from a court case much like several that I have been involved in:

Dennis Joseph is a 40-year-old married man with a 6-year-old daughter. He spends a lot of time on the Internet. Indeed, one might say he is addicted. Once upon a time, he entered the online chat room "I Love Older Men," and began chatting with "Teen2Hot4U."

"Teen2Hot4U" identified herself as "Lorie," a 13-year-old girl. Lori eventually introduced him to her friend Julie, also 13. Eventually, after lots of back-and-forth chatting, Joseph and Julie arranged to meet.

Joseph later said he was not planning to have sex with an underage girl, he just wanted to see if Julie was a real teen or an adult woman engaged in role-playing.

He got his answer when he showed up at the Franklin Street Station Cafe in Manhattan for the meeting. Instead of a teenage girl, the real Julie was a grown man by the name of Austin Berglas who happened to be an FBI agent and who promptly arrested him. "Teen2Hot4U,"meanwhile, turned out to be a 55-year-old crusader named Stephanie Good who made her reputation surfing the Internet looking for sexual predators to report to Berglas; she even wrote a book on her exploits, grandiosely titled "Exposed: The Harrowing Story of a Mother's Undercover Work with the FBI to Save Children from Internet Sex Predators."

At his federal district court trial in New York, Joseph said he had thought all along that Lorie and Julie were probably adults, based on their sexual knowledge, but he played along as part of his practice of online fantasy role-playing.

His wife backed him up. She testified that Joseph liked muscular woman and was addicted to sexual fantasy role-playing. He even belonged to an Internet group called "Muscleteens," she testified, that solicits pictures of young female bodybuilders.

In his defense, Joseph had also planned to call an expert witness, Dr. James Herriot. Not the James Herriot of veterinary fame, but a professor at the Institute of Advanced Human Sexuality in San Francisco who has researched sexual communication on the Internet. Dr. Herriot would have testified about the fantasy role-playing that takes place in Internet chat rooms.

The trial judge barred Herriot's expert testimony. Joseph was convicted and sentenced to eight years in federal prison. This week, the Second Circuit Court of Appeals overturned the conviction. Although the reversal was on unrelated grounds, the appellate opinion includes a lengthy plea for the judge to reconsider that exclusionary ruling.

"Although the admission or exclusion of expert testimony is [at] the discretion of the court, we urge the District Court to give a more thorough consideration to the defendant's claim to present Dr. Herriot's testimony…. Dr. Herriot's field of study and experience qualified him to offer relevant testimony…. Dr. Herriot's opinions appear to be highly likely to assist the jury to 'understand the evidence.' … Although some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace…. Obviously a jury would not have to accept Joseph's claim that he planned only to meet 'Julie' to learn who she was and that he lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such 'de-masking' of chat-room participants might provide support for the defense."

In a case similar to Joseph's, Dr. Herriot was allowed to testify and the defendant was acquitted, the appellate ruling noted. (That case is U.S. v. Wragg, 01 Cr. 6107.)

The ruling, United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), is online here.

Hat tip: Colin Miller (EvidenceProf Blog). Photo credit: Kim Dench ("Temple Dancer"), Creative Commons License.

Convention crackdown redux

Domestic espionage and arrests get little attention

I try to steer away from electoral politics on this blog, despite the abundance of tantalizing fodder. But the federal law enforcement crackdown on convention protestors - which has gotten little mainstream media attention - is worth noting, harkening back as it does to the bygone era of Cointelpro and the Chicago 7.

Marjorie Cohn, a prominent law professor at the Thomas Jefferson School of Law and the author of a new book called Cowboy Republic, has written an eye-opening piece on the "preemptive tactics" to contain protests surrounding the Republican Convention in Minnesota. Salon.com is also giving the issue some press.

Cohn's report, online here, documents FBI-led infiltration of leftists including - in a modern-day twist on the infamous old Cointelpro snooping - a group of vegans, as well as preemptive searches, seizures and arrests by teams of 25-30 officers in full riot gear with weapons drawn.

The raids targeted members of "Food Not Bombs," an anti-war protest group that provides free vegetarian meals every week in hundreds of cities all over the world. The group fed rescue workers at the World Trade Center after 9/11 and Gulf Coast evacuees after Hurricane Katrina. Also targeted was I-Witness Video, a civil libertarian police watchdog group.

City council members in St. Paul, Minnesota have expressed outrage over law enforcement actions "that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights," according to Cohn's article.

Analyzing the legal basis for the crackdown, Cohn states:

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. [Bruce Nestor, president of the Minnesota chapter of the National Lawyers Guild] said it "basically criminalizes political advocacy."

Glenn Greenwald over at Salon.com says the most extraordinary thing about the heavy-handed crackdown is how little media attention or outcry it has provoked:

So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protesters who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do. And as extraordinary as that conduct is, more extraordinary is the fact that they have received virtually no attention from the national media and little outcry from anyone. And it's not difficult to see why. As the recent "overhaul" of the 30-year-old FISA law illustrated -- preceded by the endless expansion of surveillance state powers, justified first by the War on Drugs and then the War on Terror -- we've essentially decided that we want our Government to spy on us without limits. There is literally no police power that the state can exercise that will cause much protest from the political and media class and, therefore, from the citizenry.

Perhaps the lack of attention was because everyone was too busy parodying surprise vice presidential candidate Sarah Palin? (See that more entertaining story over at Newsweek.)

The Salon article, online here, has links to other coverage. Cohn's column, "Preemptive strike against protest at RNC," is online here. The sketch above (in case you are too young to remember it!) is of Bobby Seale, the Black Panther who was shackled and gagged during the "Chicago Seven Conspiracy Trial" stemming from the antiwar protests outside the Democratic National Convention exactly 40 years ago.

Hat tip: Jane

Trapped in a treatment mall

The article by that title in this month's California Lawyer reminds me of the Eagles lyrics:

You can check out anytime you want,
But you can never leave.

"Pause for a moment in the sun-dappled area they call The Mall at Coalinga State Hospital, and it looks for all the world like Anytown, U.S.A. Against the south wall is the barber shop ("Back at 3:30" announces a sign in the window), and close by is the post office and the Union Square Cafe. Other destinations are known by names that make the facility sound more like a California theme park than a hospital: the Calistoga Dental Office, the Moss Landing Lending Library, the Candlestick Park Visitor's Center. Everything is Disneyland spotless, down to the buffed tile floors.

"But things aren't all they appear to be at Coalinga State Hospital--not by a long shot. The compound's theme-park veneer masks a much harsher reality: Coalinga is a long-term treatment facility for rapists and pedophiles. And most of the 762 patients currently in residence may never leave--except in a box."

The article continues here. The online version has lots of statistical trivia on California's Coalinga State Hospital, a frequent topic of this blog:

• A plague in Coalinga
• Titanic State Hospital
• Problems continue at newest California commitment center

Of child molestation and crystal balls

How much can a forensic psychologist really tell?

Defense attorneys regularly telephone me seeking an expert to testify that their client does not "fit the profile" of a child molester.

"What profile?" I want to ask. Men who molest children have no special profile. They come in all shapes and sizes.

After explaining this, I always pass on such cases.

Some forensic psychologists disagree. They think there is a profile, or that we can reliably determine the veracity of children who say they were abused.

Forensic psychologist excluded

In Louisiana, after the courthouse reopened following Hurricane Gustav, one such expert was slated to testify in the high-profile trial of church pastor Louis D. Lamonica.

The defense planned to call the forensic psychologist to tell jurors how to judge the veracity of abuse allegations made by children. No can do, ruled Judge Zoey Waguespack; the children's veracity is up to the jury to decide. Prosecutors had cited Supreme Court precedents to support that position.

The jury began deliberating yesterday. They must decide whether Lamonica molested his two young sons or falsely confessed, as the defense maintains, because he was being controlled by a self-proclaimed prophet who had tortured him, deprived him of sleep, and forced him to wear a dress and two rubber snakes.

The jurors' job won't be easy. Lamonica's sons - both now adults - testified that they were never abused. They, too, allege their confessions were the result of control by self-proclaimed prophet Lois Mowbray, who was arrested but never charged in the case. The boys testified that Mowbray controlled their mother and had her coerce the boys into accusing their father.

The bizarre case harkens back to the largely discredited satanic ritual abuse hysteria of the 1980s. In his tape-recorded confession, which was played for jurors, Lamonica talked about a child-sex ring at his Hosanna Church that practiced satanic cult rituals. Former church members also testified that the church had devolved from an established church into a Christian cult where worshippers publicly confessed and vomited to cast out the demons of sin. The allegations rocked the small town of Ponchatoula, about 40 miles northwest of New Orleans.

Ironically, the case broke when Lamonica himself walked into the local sheriff's station back in 2005 and began babbling about having molested children, taught them to have sex with each other and with a dog, and poured cat blood over the bodies of his young victims. At his trial, Lamonica testified that was all lies.

Unfortunately, the jurors won't have much in the way of science to guide them in choosing which of Lamonica's two diametrically opposed stories to believe.

But wait! High-tech mind reading in the works

While not in time to help Lamonica's jurors, scientists are feverishly working on new technologies to enable us to differentiate truth from lies. The science holds promise, they say, for identifying pedophiles based on their mental attitudes toward children.

Researchers tout the Implicit Association Test (IAT), developed by Harvard scholars to measure unconscious racism, as having the potential to sniff out pedophiles and even psychopathic murderers. (See Gray et al, 2003 and 2005.) A modified IAT called the Timed Antagonistic Response Alethiometer (TARA) can classify responders as liars or truth tellers based on the speed at which they classify sentences and "manipulate response incongruities," they claim. (See Gregg, 2007.) Other researchers have been working to adapt functional magnetic resonance imaging (fMRI) into a lie-detection tool, with mixed results. (See Ganis et al, 2003, and Iacono & Lykken, 1999.)

The current issue of Psychological Science presents an article summarizing this research and offering a new tweak, the autobiographical IAT (aIAT), which researchers boast "outperforms currently available lie-detection techniques."

The authors concede that this and other emergent technologies do "leave important neuroethical issues unresolved." (See Wolpe et al 2005.)

You don't say.

In the forensic realm, it seems particularly problematic to equate attitudes with behavior. After all, many more men lust after children and teens than go on to commit illegal sex acts against them.

The Psychological Science article is: "How to Accurately Detect Autobiographical Events," by Giuseppe Sartori, Sara Agosta, Cristina Zogmaister, Santo Davide Ferrara, & Umberto Castiello. The abstract is available online, and the full article can be requested from the first author.

The Lamonica story, from the Advocate in Baton Rouge, Louisiana, is here. You can search the newspaper's database using the keyword Lamonica for additional case coverage. A New York Times article on the original arrests is here. The Rick A. Ross Institute, which bills itself as a repository for information on cults, has much more on the Hosanna Church here.

A few of my prior related blog posts are:

• Why the next civil rights battle will be over the mind

• Forensic brain scanning: Online resources

• Using lie detectors to monitor sex offenders

• The evidence does not lie – or does it?
  

Scholarly articles referenced in this post are:

Ganis, G., Kosslyn, S.M., Stose, S., Thompson, W.L., & Yurgelun-Todd, D.A. (2003). Neural correlates of different types of deception. Cerebral Cortex, 13, 830–836.

Gray, N.S., Brown, A.S., MacCulloch, M.J., Smith, J., & Snowden, R.J. (2005). An implicit test of the associations between children and sex in pedophiles. Journal of Abnormal Psychology, 114, 304–308.

Gray, N.S., MacCulloch, M.J., Smith, J., Morris, M., & Snowden, R.J. (2003). Violence viewed by psychopathic murderers. Nature, 423, 497–498.

Gregg, A.I. (2007). When vying reveals lying: The Timed Antagonistic Response Alethiometer. Applied Cognitive Psychology, 21, 621–647.

Iacono, W.G., & Lykken, D.T. (1999). Update: The scientific status of research on polygraph techniques: The case against polygraph tests. In D.L. Faigman, D.H. Kaye, M.J. Saks, & J. Sanders (Eds.), Modern scientific evidence: The law and science of expert testimony (pp. 174–184). St. Paul, MN: West Publishing.

Wolpe, P.R., Foster, K.R., & Langleben, D.D. (2005). Emerging neurotechnologies for lie-detection: Promises and perils. The American Journal of Bioethics, 5 (2), 39–49.

Photo credits: ora mia and Josh Bancroft (Creative Commons license)

NPR series on confidential informants

Confidential informants are the lifeblood of law enforcement's effort to fight crime. But the best informants are generally very bad people - ruthless criminals - and while their information helps the FBI crack cases, the practice of using these informants is fraught with risk.

So begins an interesting 3-part NPR series by Dina Temple-Raston on the pitfalls of law enforcement reliance on informants.

Part One, "Bulger Case Changed FBI's Role With Informants," features the infamous case of Whitey Bulger, the Irish godfather who corrupted two FBI agents back in the 1970s.

Part Two is entitled, "Some FBI Agents Pay High Price For Using Snitches."

And in Part Three, "Legislator Aims To Regulate FBI Behavior," we hear about the controversial proposal by Rep. William Delahunt (D-MA) to subject FBI agents to criminal prosecution if they don't alert local law enforcement when one of their informants commits a crime.

Illustration: Popular Science August 1958; credit to Radio River (Creative Commons license).

Underground ruling on underground rules

SVP practice alert

This post is mainly to alert those of you practicing in the SVP area. The decision is from California, but may have relevance in other jurisdictions.

First, the background:

We all know about statutes and case law. But what about all those little government agency regulations that guide the enforcement of the laws? How are they issued and enforced?

Well, it turns out that in California, there is an Administrative Procedure Act (APA) that very specifically defines these rules and regulations and how they are to be issued and enforced. Rules include any "regulation, order, or standard of general application" that a state agency adopts in order to "implement, interpret, or make specific the law enforced or administered by it." And before issuing or enforcing any such rule, a state agency must file it with the Secretary of State and have it formally adopted as a regulation.

Who regulates the regulator? In California, that's the job of the little-known Office of Administrative Law (OAL).

OK, so now you understand the process. And here's why I am writing about it:

State's SVP protocol in violation

This month, the Office of Administrative Law handed down a decision against California's Department of Mental Health (DMH), saying its internal manual for SVP evaluators is an illegal "underground regulation." That's the OAL's term for a rule that is issued or enforced without the required approval of the Secretary of State.

The OAL held that the 68-page "Clinical Evaluator Handbook and Standardized Assessment Protocol" violates the law because it requires psychologists and psychiatrists on the state's panel of experts "to evaluate persons in accordance with the [manual’s] protocol."

The 2007 manual "mandate[s] how the evaluation is conducted and how the results of the evaluation are presented," despite the fact that the DMH "does not have the authority to dictate or control the standards or clinical profession of psychology or psychology," the OAL ruled.

The DMH had argued that the protocol was not a regulation, but just a general guide to assist clinical evaluators in making "case-specific determination[s] using their education, experience, and expertise ... in the exercise of their independent professional clinical judgment." The OAL found this argument unconvincing, quoting the manual as saying it "specifies the questions that must be answered and formats to be used." The handbook specifies how to conduct the clinical interview, collect historical information, and perform an assessment of a person's risk for sex offense recidivism.

The case was brought by Michael St. Martin, a leading activist among the sex offenders being civilly detained at Coalinga State Hospital.

What does the ruling mean in practice?

Once the OAL identifies a governmental rule as an "underground regulation," the agency is prohibited from enforcing it.

There is no muscle behind the proclamation, however, in that the OAL does not impose sanctions.

The OAL does mention that attorneys may bring up the regulation's status as an issue in any subsequent litigation. That means defense attorneys will have a heyday with state SVP panelists, some of whom are earning a cool half-million dollars per year cranking out these evaluations. Prepare for cross-examination questions on whether the evaluation methodology has any scientific basis and whether it has been peer reviewed.

The full decision is here. Photo credit: Eole (Creative Commons license).