SexCrimeDefender

Child Porn Victory

State v. T.J.

 

In 2006 the Defendant’s then wife went to the police station and reported that her husband was cruising websites showing child pornography.  The police seized the computer and found said pornography.  A divorce ensued, now ex-spouse retained control of the family home and their relatively modest assets.  There was a prepubescent stepdaughter also in the home.   The now ex-wife stated she did not have access to that computer.  

 

As the police would not release a forensic copy of the hard drive for investigation, my expert and I travelled to the Maine crime lab in the spring of 2007 to view the computer.  We discovered that within an hour after the wife had been to the police station that the computer and these websites had been accessed.  There would have been some testimony that my client may have been out of the home at that time.  We also discovered distinctive photographs that appeared to be both personal and to have no association with my client.  We could not definitively determine the origin of the photographs.  That’s what we had going into the eve of the first trial.

 

On the night before the first trial it was disclosed that there was a second computer and that there were emails on the seized computer suggesting that the ex did have access.  Although we had already picked a jury and the trial was scheduled to start the next morning it was obvious we should have access to the second computer and a chance to examine it.

 

There were initially two issues upon exam of the new computer:

1.        Was there a trail that would explain how certain AOL emails which appeared to originate from the couple’s common email address and which were clearly from/to the ex-wife appeared on his computer consistent with her earlier statement that she had no access to his computer.

2.       Would we find anything else interesting.

 

The ex wife’s  computer was obtained in late August 2008- over two years after the initial report of the child pornography.  We obtained a forensic copy of the hard drive.  We picked a second jury and then my computer expert found-among other things- that the new computer had been wiped clean with special software about the same time that the police were requesting access to it from the ex.  The second thing that was very interesting was that someone had been using the second computer as recetly as August of 2008 to access very similar sites to the ones my client was accused of cruising.  My client had been out of the home for well over a year at that point.

 

We submitted the expert report on Wednesday of the week before trial pursuant to a court order.  The DA dumped the case the Monday of the week of trial.

DHHS "Substantiation" Hearings Described

The power of the Department of Health & Human Services to intervene in families lives on the thinest of suppositions never ceases to amaze me. Prior to a few years ago if the Department sent a letter "substantiating" you as a sex offender or a danger to children there was very little practical recourse. From that point forward the Department would require the subject of the letter no to have contact with children-even their own natural children who were not subject to any allegations (i.e. a man accused of sexual contact with a 15 year old unrelated girl might be prohibited from living with his 3 year old son or his natural teenage daughter). There would not need to be a court order because the prohibition would be phrased in such a way that if the "suggestion" were not followed the Department would seek an ex parte court order snatching the children and placing them in a foster home. These determinations would be made by a typically young social worker fresh out of social work school and her Department supervisor. The choice for the target of the letter and their family is to obey the Department's directives and kowtow to their every whim or face the near certain prospect of a court order snatching their children until some distant point in the future. It is unfortunate that those charged with second guessing the Department tend to be self selecting for traits similar to social workers ("I just want to protect the children" or "Children don't lie"). "Substantiation" is a status whereby the Department gets to maintain a record of the alleged issue forever instead of having to destroy it within 18 months as they must do otherwise. Substantion suggests that the event(s) actually occured. While not made public, substantiations are shared with people /organizations that have a need to know. For example if you want to become a school bus driver or day care worker the Department will search its database of substantiated offenders. Recently a new term has enetered the Department lexicon-"indication." Indication suggests that the event(s) may have occured but that the Department doesn't have the level of proof necessary to get to "sustantiation." The Department wants, however, to save a record of the encounter so as to bolster their case later should another problem occur. The Department will then offer an "indicated" status which is not supposed to be used for job clearance purposes but which can be used in future investigations. That is the theory-I suspect in practice there is very little distinction between substantiation and indication. Once a letter has been recieved from the Department "substantiating" or "indicating" an individual then the individual has 30 days to appeal. The appeal process at this stage is relatively simple and consists of a letter requesting an appeal. An internal supervisor then reviews the paper documentation of the case and does a rubber stamp approval. A letter is then sent to the individual upholding the original finding. The individual then can appeal to an internal DHHS hearing. This hearing more closely resembles a formal court proceeding with subpoena powers and a formal record of the proceedings, including tape recordings. The Department is represented at the hearing by the Maine Attorney General's office. Although I have not had an opportunity to challenge the provision, children relevant to the proceeding may not be subpoena'd by the defense and any such hearsay statements are typically admissable. A decision is rendered by an employee of the DHHS who is a hearing officer acting as an administrative judge. These hearing officers are typically former caseworkers. After a decision is rendered by the hearing officer, the decision is reviewed by a further supervisor and then either accepted or rejected. Suprisingly I have had some success at this level. A recent case consisted solely of the allegation that my client, a foster grandfather figure, had sexually molested his "grandaughter" based on the statement by the 4 year old that "pop-pop took a rat out of my butt with rat clippers." Based on this nonsensical statement and absolutely no other evidence my client was substantiated through the hearing officer level. As I was preparing to file an action in District court, the head of DHHS rejected the finding and the case ended. The proceedure I have described above is a few years old and I am not aware of any cases that have been tested through the District Court level. Often the clients find themselves in some additional trouble, they give up or they run out of money. After the hearing decision