Who All Is Guilty?
Early July, 2017
I am extremely fortunate that I have family, my sisters, mother and my brother that stand behind me. Life is extremely difficult being ship-wrecked, out of society, behind barb-wire fences. My one sister goes beyond anything I
could hope for in her support. She, along with my brother, constantly are looking and helping me get the word out that Child Pornography is no joke. There is no justifications for the viewing and definitely justification of any type of production of child- pornography. People should be aware of actions of clicking a mouse on-line!
My sister's daughter just graduated from high school and has received a scholarship from Harvard University. During a graduation party, my sister spoke to a father of another student, a retired federal judge who knows that her brother is in prison for viewing child pornography. My sister mentioned that she may talk with him about my case sometime in the near future. I
decided to write up some facts for her to have if and when she meets with him. The following post is made up of snips and pieces of my thoughts. I feel that these thoughts should be shared here on www.myshipwreck.com because this web site has more viewer’s everyday, and unfortunately some of these viewers are awaiting sentencing on child pornography charges. Therefore, read carefully
and learn from my mistakes. My goal is to try to get those looking at child pornography to realize how damaging it is and to seek help before it destroys more lives. While it is too late for some, please, if you think about logging into the internet to view any pornography remember. It could be dangerous. Pornography is a drug and is addictive. Check out website listed at end for Sex Addicts Anonymous.
Discussion Points to My Sister
Intelligence & Voluntariness of Pleas
Recently I have been typing up MOTIONS for another jail house lawyer that challenged the intelligence & voluntariness' of plea agreements for drug defendants. Many changes have taken place in the Supreme Court and Circuit Courts allowing many drug defendants to be resentenced. Many are career criminals. It seems that they get all the breaks! These MOTIONS have argued
that a defendant cannot intelligently plea away his constitutional rights in future changes of the law. These Motions’ made many different arguments about intelligently and voluntary plea agreements.
L .... , I feel that my plea was not intelligently and voluntarily made. When a person gets a home mortgage, he has to sign several pages of documents explaining what his 'points' are, the annual percentage rate etc. Several
pages that describe exactly what you are getting yourself involved in. Plea agreements are the toughest contracts made with very little documentation explaining what you are basically getting yourself into. And these plea agreements many times, have you giving up very important constitutional rights that a first time offender has no clue what he is actually doing! But in court, the Judge asks if you understand. And following your lawyer's coaching, you somehow answer the question "yes your honor". But my plea hearing transcripts actually show that I was not agreeing to everything in the plea, and that I was somewhat confused, but before you know it, you are locked into a contract that is impossible to change or break.
One aspect of my plea and in relationship to “intelligence” was that the amount of time I could serve. This was lightly explained by the judge that I had a minimum of 5 years with a maximum of 20 years. The court mentioned that
the probation department would do an 'investigation' and come up with a suggested sentence. When I heard that, I only felt that any investigation would be to my benefit. I had already passed a lie detector test given by a retired director of the National Polygraph Program of the FBI, Richard Keifer. Then, being a first time offender, I assumed I would be entenced to the low side, if not a bit under the minimum due to mitigating circumstances, especially since I had expert witness describing my mental health, and the lowest probability of recidivism. My plea made no mention at all to what if
any enhancements could or would be assessed. Therefore, was this plea intelligently made? Nowhere in my plea does the plea itself mention the enhancements by category, by the levels each enhancement consist of or by what they involve by way of alleged action, etc.
VICTIM IMPACT STATEMENTS
Victim Impact statements are statements from victims of crimes. Like if your stock-broker lied and cheated you out of money, steeling, or you were victimized when a robber robbed a store at gun point. If a love one was murdered, you were victimized. Stolen from, sold bad drugs, anywhere that you were the direct victim of a crime the court allows you to state in writing or orally, what impact the commission of the crime had on you. Yet in child
pornography cases, there are 'generic' victim impact statements that the government uses to prejudice the court against the defendant. Saying how these victims were re-victimized by 'clicking' on a mouse.
Accordingly to the Federal Rules of Criminal Procedure, victim impact statements are to be included in the Probation department's PSI (Pre-Sentence Investigation) report. (Yes, this report is the most important report for defense attorneys to argue about - it must be made correct, not just pushed upon you like Suarez did me! Argue everything, my attorney lied and told me
that the enhancements were non-arguable! Honest to God, he did, and that was not right!
The reason for advance notice, thus to be included in the PSI report (30 days before sentencing), is that these victim statements need to be available to the defense counsel so that they can be read and vetted - or challenged as to their relevance during the sentencing decision of the court. What is likely to be prejudicial towards the defendant needs to be linked directly and to be
relevant to each individual case. Thus time is needed to check each and every victim statement properly entered into the court. The federal rules of criminal procedure provide that time.
L .... , my own sentencing took place on two separate days. The first day around September 2nd, 2011. According to the federal rules, victim impact statements were supposed to already been given to Eddie [hired defense attorney] by August 2, 2m1. However, they weren't. Toward the end of the first day, the judge asked both sides if there was anything else he needed to
know about before he dismissed the court for the day, sentencing to be continued on September 30, 2011. Both sides said they had no other business at that time. If the Victim statements were to be entered they may have been possible to do so at this time, perhaps! Perhaps the court would have allowed the prosecution permission to enter them at this time, if defense attorney did
Sentencing resumed on September 30, 2011 exactly one year from my arrest date. It was not until after all the colloquy’s (oral pleas from defense and defendant) were given on September 30, and right before the Court handed down sentence, that the court asked one last time if there was anything else. The Prosecution then asked permission of the court to submit Victim statements.
The court correctly asked why they were not part of the Presentence Investigation report and then asked my defense attorney about it. My defense attorney could have and should have objected. No credible defense attorney should have allowed un-vetted impact statements into the courts evidence. My attorney however stated on the record "Your Honor, I know that Ms. Kaiser [Prosecution] ... Ah we've talked about them, but no I haven't looked at them but I know that she would have let me if I wanted to, so no I have no
objection." Honest to God, my attorney said that. And what is worse, they were generic victim statements that the Judge then read in court. The one he read I could swear was not even related at all to what was on my hard drive. Twenty minutes later, the Judge stated on the record, "by these victim impact statement, it is obvious that this is not a victimless crime, ... I don't care what your experts have said, I'm not going to make that leap! .... The Sentencing Guideline says I can give you 210 to 262 months, you have a 20 year
max, so I will give you the low end of the guideline sentence - 210 months followed by 30 years supervised release!" [Court transcripts available]
Two important points about these victim statements. (1) They were not direct victim to my actions of viewing, but 'generics used by prosecution attorneys which often describe the horrors and anxiety of persons that were abused by child pornography producers. These Victim statements had a definite prejudice against my expert witnesses. Photographed by someone else in the
production of child pornography, long before I found them on-line, they impacted severely my sentence.
The logic of the government, and allowed by many courts, is that every time the victim's photograph is downloaded and viewed by some unknown stranger, that victim is re-victimized.
Re-victimized? That statement in itself is a serious question. Here is one point of logic that has to be thought about. How can one feel any 'added or amended' emotion at all due to an action he or she has no concept of occurring? A child in one location, say Jakarta, has been the subject of abuse that was photographed on June 2, 1999. Absolutely a dramatic event to that innocent child. By January, 2000, that child has lived with that abuse for 7 months, and lets pray, has escaped from her abusers and is no longer in
danger. Although that picture was put on the internet and multiplied into innumerable digital files, that child has some knowledge that his or her image is somewhere to be viewed. That knowledge itself is enough to cause anxiety. Therefore he or she feels embarrassment. Now if one person looks at that picture without knowledge of that victim, does that increase his or her emotional stress? The logical answer is no. Of course not. The emotional anxiety does not increase or decrease at that point just because someone - somewhere clicks on that pornographic digital photo. The anxiety level just cannot rise one way or the other since the human mind is not connected to the internet and therefore the clicking of that image cannot have any effect at all - above the fact that there is anxiety of knowledge that the photograph is available on line. Whether one person clicks or one thousand clicks, the
anxiety cannot change because the victim does not know how many clicked - unless someone tells them!
(2) The second point or question that has to be included in the discussion is what happens and who is responsible when that victim of abuse is made aware that someone, somewhere, has downloaded and viewed the material. Once the victim knows, only then can any new or additional anxiety be felt. 50 the question that must be addressed is who caused that new and additional anxiety. The one that clicked sometime before the fact, or does the deliverer of the news have any responsibility of creating additional anxiety? Once notified, only then is there additional emotional feelings about the viewing. Who made that victim aware of the internet action which only then, he or she becomes aware, does the anxiety become renewed. Logic says only when the victim becomes aware can there be a renewal of anxiety. Therefore the informer of that new information, knowing that that new information will cause new
anxiety, has to be held accountable in some form. It is not permissible to say that this informer has a right to inform and not be held in some accountability.
One of the reasons that these victims of child pornography are informed about viewers downloading and viewing is due to possible retribution awards that attorney's try to receive for huge profits TO THE ATTORNEYS!. It would be one thing if the attorneys tried to receive the retribution awards without any percentage going into their pockets. If and when they are awarded retribution,
do not get me wrong, the abused victims deserve to be made whole again and that should come from those involved in the production, and those actually involved for financial profit. Websites and such, not from those who surfed the internet and found freely with clicks of the mouse. It is mostly lawyers, along with prosecutors looking to profit from this renewal of anxiety. Lawyers for winning financial awards / retribution and prosecutors for winning harsher
and unnecessarily long sentences for first time offenders.
The severity of the long harsh sentencing of many viewers of child pornography has to do with following that logical reasoning of the continued emotional anxiety felt by the initial victims of abuse. The theory of these victims being re-victimized each and every time a digital file is processed into an image. Every news paper accoun