The Curse of Mark Foley

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In Cleveland's alt-weekly, the Scene, Kevin Hoffman scopes out the effects of that anti-sex predator law Mark Foley got on the book two months before… well, you know.

The new law is being challenged in the case of David Knellinger. He was a middle-aged financial analyst living in Richmond, Virginia, when federal agents raided his home and seized his hard drive. A federal indictment claims it contained 32 explicit movies of underage girls.

Initially, prosecutors agreed to provide defense lawyer Friedman with copies of the files. But with the passage of the Walsh Act, their posture changed. Computer experts would have to do their work not only on-site, but also under the watchful eye of law enforcement.

"I'm trying to discuss the case with the defense attorney or client, so it really hampers attorney-client privilege," Vassel says.

Left unsaid; no one more powerful than an alt-weekly reporter is going to challenge this law. No politician with less popularly than, say, FDR before court packing will stake his reputation on "being soft on sexual predators.

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  1. “less popularly than, saw,”

    Hrh?

  2. While I see the problem, is this much different than what happens when other contraband is seized and held as evidence? I’ve seen defendants challenge whether the materials taken from them were actually drugs by challenging the government’s testing procedures or chain of custody, but the defendants never get to actually hold the brick of alleged heroin. Why would an accused child porn defendant get to hold his alleged child porn? If he’s challenging whether the subject of the porn was actually a minor, or whether the content was actually porn, there has to be some other way then letting him keep the material.

  3. Defense attorney’s lament about the new law:

    “We didn’t land on Foley’s cock. Foley’s cock landed on us!”

  4. This is the scary side of the “living Constitution”. If the Constitution means what it says, the 5th Amendment confrontation clause is pretty clear on this; you have a right to confront the witnesses and see the evidence against you, limited access under the watchful eye of big brother doesn’t cut it. But, if we have “living Constitution”, the 5th Amendment doesn’t mean what it says. The drafters of the document had no idea about computers and the scourge of sex offenders and perverts. Times and societal values have changed. The competing value of our children’s “right to be safe from internet predators” trumps the pervert’s right to confront the evidence against him at trial.

    I know I am being factious, but I guarantee you there are a lot of people who feel this way. The “living Constitution” is great when we read rights that didn’t previously exist, not so great when it deprives us of fundamental rights.

  5. Abdul,

    Unlike a brick of heroin, digital files of hot underage girlz! are easy to copy, so that the defense lawyers can gain access to the evidence while the prosecution still maintains the original files. Simple enough. Nobody is proposing that we simply “give the guy back his porn”.

  6. “I’ve seen defendants challenge whether the materials taken from them were actually drugs by challenging the government’s testing procedures or chain of custody, but the defendants never get to actually hold the brick of alleged heroin.”

    To defend one of these cases, your computer expert has to have access to the computer and the files for a very long time. In the day and age of computer piracy and hackers, just because the stuff is on your computer doesn’t necessarily mean that you put it there. What format is the stuff in? If, how often and when was the file accessed? What do the “underage girls” in question actually look like? Is this a bunch of seven year olds or is it teenagers where it is impossible to tell if they are not just 20 year olds made to look like they are 14? You need access to the files for that. Further, the defense has a right to confidentiality with their client and with their expert, unless and until the expert is called as a witness. If I am a defense attorney defending one of these cases, I need to sit down in private with my expert and my client and have a bare knuckles conversation about the nature of these files what the realistic options are for a defense. To do that, my expert and I have to look at the files without the probing eyes of the police. I really think this law deprives defendents of a geniune opportunity to confront the evidence against them and have an effective defense.

  7. I’ll sign on to what John is saying. I’ll also add that (1) importing evidentiary rules from the drug war is probably not a good idea and (2) if there is DNA evidence in a case, the defense should be allowed to test that evidence (i.e., not just rely on a chain of custody argument). The Innocence Project does it everyday, though they don’t always succeed.

  8. It is amazing the hypocrisy of people. This sniffling little rodent is out destroying the 5th Amendment in the name of the children while all the while doing his best to bugger every teenage boy he meets. But of course Foley had an alchohol problem. I am not sure I can think of a fate horible enough for Foley.

  9. Another important difference is that there is an objective deffinition for “heroin”. The chemicals in question are specific. Child porn, on the other hand, is so vaguely defined that the line between “damnable predator” and “parents taking a photo of the kids playing in the tub” is non-existant. Without access to the evidence in question, a defense may not be possible.

  10. 6th Amendment right to confront witnesses, John

  11. Is having kid porn on your computer just as bad as raping a kid? Is a picture of a naked 10 year old on your screen the same as being on top of her? I don’t have the pictures or the desire to have them but there seems to be a difference to me.

  12. Well, I don’t know about you guys, but I’ll never look at anything but Granny porn ever again.

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