Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

THE SJC HEARS ARGUMENTS ABOUT WHETHER ALL SEX OFFENDERS, INCLUDING THOSE CONVICTED FOR CHILD PORNOGRAPHY, MUST BE TREATED ALIKE WHEN NOT IN JAIL

We began the week discussing Massachusetts child pornograpghy prosections. Today, we continue the subject matter from another perspective. The perspective is from after the conviction comes.

Yesterday, the Commonwealth’s highest court debated whether criminal defendants convicted of child pornography should be tracked by GPS while on probation – or if their crimes call for laxer conditions than other sex offenses.

Naturally, law enforcement, embodied in the political prosecuting person of Attorney General Martha Coakley, the Commonwealth was on the side of harsher treatment.

Currently, existing state law does not discriminate between specific crimes in mandating GPS bracelets for anyone convicted of a “sex offense involving a child.” The AG claims that the legal umbrella covers pornography as well as sexual assault.

The Commonwealth is appealing the case of Jamaica Plain mechanic Jose Guzman. Specifically, the AG claims that Guzman was given an illegal sentence. He was sentenced to a year in prison followed by a five-year term of probation. The Commonwealth’s issue is that Suffolk Superior Court Judge Carol Ball ruled in 2012 his probation needn’t include GPS, “unless there is a problem,” according to briefs filed with the state Supreme Judicial Court.

Basic common sense? I would say so. But that need not stop the prosecution.

A second, related case justices heard involves the contrasting appeal of Edgar Selavka of Northampton, a former Sunday school teacher who pleaded guilty in 2008 to nearly a dozen child porn charges. Selavka was sentenced to one year behind bars and seven years probation by Hampshire Superior Court Judge Judd J. Carhart. Carhart did order Selavka monitored by GPS, but only after he got out of prison and the Northwestern District Attorney’s Office, of course, pushed for it.

Selavka wants justices to order his GPS bracelet removed. His appellate lawyer contends in her brief, “GPS monitoring, in any event, would not detect or deter the offense of child pornography possession which is now most committed through the Internet.”

Selavka was banned outright from surfing the Internet while on probation, which is a commonplace condition. Guzman’s Internet use was restricted to work-related searches.

Selavka’s lawyer called GPS an “unconstitutional intrusion” and questioned in her brief, “Must a defendant pay for the sentencing court’s mistake and subject himself to constant surveillance … ?”

Prosecutors admitted not requesting GPS monitoring during their plea talks with Guzman, saying they believed the law, Chapter 265, Section 47, required it. Even judge Ball acknowledged the law at Guzman’s sentencing, saying, “It’s like so many other mandatory laws, it is painted with such a broad stroke that it results in ridiculous things,” according to a transcript included in the prosecution’s SJC brief.

Attorney Sam’s Take On The Realities Of Child Pornography Prosecutions

Please allow me to confess right up front that I am, and have long been, a fan of Judge Ball’s. Most attorneys who practice before her are.

But that, and, in fact the very issue up for debate, is not the point of this posting.

The point here is to remind you of how serious these matters can be and how the “laws” of logic as you understand them may not apply.

Would you like an example?

Donald Downloader uses one of those file-sharing programs to download music and sometimes, in the past, pornography. Last year, he got married and has not looked for pornography since. However, before his nuptials, Donald was not very choosy. Indeed, some of the pornographic movies he downloaded contained images of girls between the ages of 15 and 17. At the time of his wedding, Donald deleted, or thought he deleted, all of the pornography.

Suddenly, he was greeted by law enforcement and the search warrant. His computer was taken and examined. The result was that he got charged with possession and dissemination of child pornography.

“How? He deleted the stuff a year ago.”

Yes, but that does not always wipe the items completely off your computer. There are various programs that can be used to recover the data, or at least the listing of the data, so that it can be proved what had been on the computer before those items were deleted. Naturally, the deletion of the items will be considered a sign of guilt.

“But he didn’t send them to anybody “

Actually, technically, he did. Most of these programs have you agreeing to be part of the filesharing process. Therefore, as you are downloading something from somebody else, a third-party can download that material from you. Similarly, if you downloaded something a week ago and it is still on your computer, somebody else can download it from you. Therefore, the way these investigations usually go, is that law-enforcement downloads the material from the person who has the child pornography. Therefore, since they are downloading it from the possessor of such pornography, the pornography is being disseminated, or shared.

“What if Donald did not know that?”

It does not really matter. You should have read all the disclaimers before he started using the program.

So, facing mandatory minimum sentences of double digits, Donald decides to plead guilty in exchange for a sentence of two years in jail and eight years on and after probation. That is where the issue being debated before the SJC comes into play.

Now Donald, who had no prior criminal record, comes out of jail two years or so later. He needs to continue his life. He needs to find some kind of a job, should that be even remotely possible with this criminal record. In accordance with what the commonwealth seeks, he must also do this wearing a GPS bracelet which he will have to explain to any potential employer or anyone else.

Mind you that Donald has never tried to escape his criminal case. He has never defaulted. He has never committed any other crime. One might say that it is a waste of resources and just plain silly to force him to wear a GPS bracelet. The Commonwealth, of course, would disagree. Since he now has this criminal conviction, we must assume, according to them, that he has now become a threat to humanity who is likely to try to escape the law, under probations watchful eye, and commit Lord only knows what terrible crimes.

After all, that is part of the reason why he has had to sign up with the sex offender registry because of his conviction.

In the meantime, let’s look at the chances of Donald rejoining society and getting a job. Obviously, that is in everyone’s, including the commonwealths, best interest. We have already covered the fact that he has a criminal record and has a GPS bracelet on him to one potential employers that he is a menace to society. However, sometimes set such people are able to find work. Often, they do so by use of the Internet…

Hold it!

Very likely, Donald is not allowed to go anywhere near the Internet. This includes no smart phones, tablets with Internet connectivity, or any other means of connecting to the Internet.

So that avenue is closed as well.

Whether or not you agree with me that making such requirements in every case is draconian, again, can be argued at another time. The fact is that given the state of the law, this is what has been happening to people in this situation. You can write them off, of course, and simply say that they are criminals and so nobody had any sympathy for them. That is fine, but what happens when they cannot blend back into society will get a job?

As I mentioned, the reason for this posting is so that you will understand the issues Being debated and what it can mean to you or loved one who is accused of such a crime. Remember, we are not talking about someone who attacked someone. We are talking about the downloading and possession of child pornography.

Like any criminal prosecution, it is important not to take any such investigations or criminal charges lightly. They can easily change, and ruin, your life.

If you suspect that you are being investigated or charged with such crimes, it is vital that you retain the services of an experienced criminal defense lawyer.

In the meantime, if you are interested in dealing with these, what I consider, problems in the law which upcoming back to bite us every day, keep reading this blog, feel free to contact me and don’t be afraid to get involved.

To read the original story upon which this blah is based, please go to http://bostonherald.com/news_opinion/local_coverage/2014/02/court_mulls_gps_in_child_porn_cases

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