Criminal Possession Requires Intent or Acquittal
When a defense lawyer tries a criminal possession case, the jury must be asked about the “intentional and knowing” element of a possession charge during voir dire.
The reason? Unknowingly possessing contraband is not criminal.
Dan Browning of the Minneapolis Star-Tribune wrote an article today about the acquittal of a computer consultant on possession of child pornography charges in Federal Court. (Hat Tip: CyberCrime)
There was never a dispute about whether the defendant possessed the computer, nor whether images of child pornography were found on the computer. The defense, however, hammered on the government’s inability to prove that the defendant knew that the images were on the computer, or intended them to be there:
Sarah Snider, the forewoman of the jury… said jurors examined the computer logs and discovered that Furukawa had downloaded thousands of files. The child porn files were "few and far between," she said. "It's our belief he wasn't looking for it."
DeAnn Roy, another juror, said no one disputed that the images were illegal child porn. "We just didn't see proof that he knew, or that he willingly had that on his computer."
Good job done here by the defense lawyer Daniel Gerdts in properly focusing the jury on holding the government to its burden. Too often jurors believe that simply possessing something is a crime, without forcing the State to prove that the defendant knew he was in possession of something illegal.
[Also see my thoughts on Jury Selection and the Unwitting Possession Defense.]
Yet, shun the technically savvy for they know all. Yes, the definition of technically savvy, falsely means in a court of law - knows everything (at least for the technically mystified jury te prosecution helped keep that way). But, how do you explain Comm. of Vga. v. Kroemer, or the recent case of Julie Amero - where a substitute teacher had no links to pornography, only fought popups generated by the main teacher's ownership of the computer? More than one person had control of the PC - guaranteeing it was physically impossible to identify the behaviors of one person or another on that computer (and I know who did the forensics for the defense, and that is exactly what they found after tearing through every, small portion of the drive). Yet, in both those cases, no proof existed to link the elements of the crime with the accused. It is no different from case to case - where elements proven and ownership proven do not = acts proven. I guess it comes down to courts and what justice you get in some states, but not others, and who gets a worthwhile, public defender and who doesn't.
Possession a very powerful thing to me in my 35 years in law enforcement. My 21 year old son, Mandatory Evacuation during Ike, State of Disaster. At my house, found he had a flat. Borrowed my dads car, 60 year Texas Peace Officer. On the road 5 minutes, in the car registered to my dad. Stopped by the local constabulary. Vehicle searched, my dads handgun in glove box, a single prescription drug under the passenger seat, he had spilled the whole bottle but missed one.
To jail, both charges,. Our collective 95 years experience in the form of statements that the son was in the car for 5 minutes and it was not his failed. The expert police chief told my dad, "you should have known better". Despite our prevailing definition of possession in Texas.
The cases are filed with the District Attorney.
It is "you might beat the rap but you aint gonna beat the ride and you aint gonna get all that removed from HOMELAND SECURITY computers whether you are guilty or not and further you aint gonna beat the expense of having to hire someone to argue what you know to be the law to begin with.
95 years law enforcement soured in 5 minutes.
I want to sopabox on the new generation of "lawman". But I will not.
You Wingo's have to be held accountable just like the honest citizens of Brazoria County.
Your children's reputations are well known.
Also wasn't your sweet innocent child charged on 9/17/2008 with guess what?
Cause# DJ011408 Proh. Weapon Switchblade/Knuckles
Cause# DJ011407 Poss. Contr. Substance PG 3
Cause# 169201 driving whle intoxicated
Cause# DJ011406 Unlawfully Carrying Weapon
While driving his King Ranch Edition Dually pickup?
Brazoria County Sheriff Records Search (Criminal case Search)
http://records.brazoria-county.com/
Also wasn't your sweet innocent child charged on 9/17/2008 with guess what?
Cause# DJ011408 Proh. Weapon Switchblade/Knuckles
Cause# DJ011407 Poss. Contr. Substance PG 3
Cause# 169201 driving whle intoxicated
Cause# DJ011406 Unlawfully Carrying Weapon
While driving his King Ranch Edition Dually pickup?
Brazoria County Sheriff Records Search (Criminal case Search)
http://records.brazoria-county.com/
Hurricane Ike made landfall in Galveston 9/13/2008.
The arrest was four days after landfall.
Also weren't you Matt Wingo told to resign or be fired for your activities at the Courthouse. While working in Judge Garvin Germany's office. That's why your not a Lawman today?
Also didn't your sweet innocent 21 yr. old son have a theft complaint filed on him recently for stealing from a Patriot Guard Rider?
Impersonating a Deputy Sheriff is another of Wingo's tricks, by his own admission. He says he did this because he wasn't getting information otherwise. So I guess he just breaks the law whenever he feels like it, committing a felony! This man thinks he and his kids are above the law. Good thing he is no longer a lawman. Maybe his arrests should all be investigated for fairness and legitimacy?
Matt Wingo: After speaking to your child's classmates didn't he lose his scholarship because he was caught stealing computers from the schoolhouse?