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.]

  • Donna

    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.

  • MATT WINGO

    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.

  • Advocate for Wingo Victims

    Hurricane Ike made landfall in Galveston 9/13/2008.
    The arrest was four days after landfall.

  • Matt Wingo

    I sincerely hope that Austin Defense.com has a competent attorney to answer for these statements of facts, which would be found to e untrue and lacking in truth many ways. I am quite sure that the little lady writing this is feable gossip of intelligence and unable to back anything with fact, not hearsay or delusional wordings but facts. I will not answer all the erroneous information. But I insist that austindefense.com will furnish me with all the authors identifiers that along with this “blog” I will forward to the District Attorney and then find it will be learned who else. I remain available to visit in person anytime and anywhere with the old lady to discuss these matters in truth and fairness, and in a lawful manner. HPD- I was not aware they retained cowards on the payroll. I am Matt Wingo in Angleton Texas and my email is mattwingo@gmail.com, I would give my number but that only allows nuisance offenders to ply their trade testosterone as anonimity allows such offenders to do. Poor fellers, know not what of they speak. Considering the erroneous information allowed to be posted, methinks this blog site is not what it purports to be. Civil Rights and truth seem to be a thing of the past. I understand this information is being passed around and that is fine, that allows for more witnesses.

    I still challenge this nuisance offender to meet me, yet that will never come to be.

    As to the blog, you will be hearing from me soon.

    Oh tell us who you are, I have no secrets, lets dig on you, do you mind if literary license is used?

    Gary T Vasser- anyone know who that may be?

  • Matt Wingo

    Come see me Editor and Advocate

  • Matt Wingo

    Why does a respected blog such as this , endorse such a fool as the Editor and Advocate especially when the same person apparently impersonates the Editor of the blog, certainly the blog’s editor does not commend this poor person.

  • matt wingo

    BRAZOSPORT FACTS APRIL 1977
    A couple was taken into
    custody Saturday afternoon
    in Angleton when Sheriff’s
    Investigator Matt Wingo
    executed a search warrant
    and seized a quantity of
    what appeared to be THC.
    Gary T. Vasser and
    Laura Vasser were charged
    before Judge Ammons with
    felony possession of a
    controlled substance. Judge
    Ammons set bond at $10,000
    on each charge.

  • AdvocateFor WingoVictims

    No charges filed against Lura and the charges against Gary were dismissed.

    Wednesday, January 28, 2004

    TEXAS COMPUTERS STOLEN FROM SCHOOL The Angleton Times Published January 28, 2004

    Three Angleton High School students were arrested Thursday on charges ranging from burglary of a building to possession of stolen property.

    According to Angleton ISD Police Chief, Domingo Garcia, Nathan Dunn, 17, Arthur Miller, 17, and a juvenile were arrested in connection with a burglary at Angleton High School that was reported on Jan. 12.

    The Times has learned the juvenile arrested is Stewart “Stormy” Wingo, who was underage at the time of the crime. His date of birth is Jan. 13, 1987.

    “On Jan. 12 it was reported that a burglary had taken place at the school,” Garcia said. “On Jan. 16 all of the items that had been stolen were recovered.”

    According to Garcia, the three students broke into the school and took an estimated $3,000 worth of computers, camcorders and other electronic equipment.

  • AdvocateForWingoVictims

    Cause # 6487
    Date filed 05/12/2011 Offense 01/03/11-Forgery

    Defendant Wingo, Stewart Matthew – 01/13/1987 Court 300TH DISTRICT COURT
    Disposed Degree State Felony
    Warrant status None Attorney Mcgee, Stanley

  • AdvocateForWingoVictims

    Why would I care to meet with you? Are you going to offer a heartfelt apology for launching into a cuss fit and kicking a complete strangers motorcycle as alleged by officers of APD who claim to have witnessed this at the accident scene?
    Or perhaps you would like to continue to try and intimidate your childs victim?
    Perhaps you would like to take care of the $5000.00 Writ of Judgement?
    What is the purpose of this meeting you desire so much?

  • AdvocateForWingoVictims

    No one is impersonating the editor of this blog…..that was a quote from the Editor of one of the Law Enforcement Trade Papers who has been following this nefarious tale of woe.
    Try to get your facts straight.

  • AdvocateForWingoVictims

    Really? Something from 34 years ago for which there was no convictions whatsoever?
    Chemical analysis of the alleged THC proved that it was not in fact THC at all.
    All charges dismissed.

  • Advocate for Wingo Victims

    Taken from Matt Wingo’s Facebook page.
    My Credit Union refuses to account for several checks out of the account, transferred in excess of 1000.00 from the account without knowledge or consent. Plus several other things. And some of them are reading this. I have no secrets, I am coming. End Quote.

    (See the above Forgery Charge)
    Oh please, is it possible that the Credit Union is NOT responable for the last money? Could it have been a FORGER who stole from Mr. Wingo? Possibly his own Son?
    How does it feel to work like a Dog to try to have a little something in this world and then have it taken away by a lowlife.
    Let me take a wild guess here, someone was threatening and confrontational towards the Credit Union so they simply filed charges on the one truly responsable for the theft.
    How is Stormy’s Rehab working out? Was it voluntary or court ordered?

  • Advocate for Wingo Victims

    In the 300TH DISTRICT COURT
    Brazoria County, Texas
    Cause No. 64873

    STATE OF TEXAS VS. STEWART MATTHEW WINGO

    Disposition Information
    07/27/2011 – Charge Reduced To Misdemeanor – Convicted

  • Advocate for Wingo Victims

    Isn’t it amazing that after teaching your adult Son that it is acceptable behavior to victimize the elderly in the community that his very next victim is the elderly in his own family.
    The very people who defended him, put a roof over his head and food in his belly.
    Please share with us the name of the person whos account the boy accessed and stole from.
    It is alleged by the boys classmates that he failed to complete his probation and is now in the lockup. Is that true?

  • Pure Bullshit EVERYONE whoever won a big ltetory never thought about how they lack? EACH AND EVERY ONE was using law of attraction? SECONDLY, all 2,998 victims of 9/11 at the World Trade Center were they all scared of death or thinking about death? It’s ALL Bullshit.Lastly, it is not a LAW of attraction it’s a THEORY at best Science has NOT proven this.. it’s man’s THEORY, should be called the THEORY OF ATTRACTION!We need answers to everything! We are born this way.