Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

Houston criminal defense lawyer Stan Schneider left a series of comments on former Harris County District Attorney candidate Kelly Siegler’s post There’s No Such Thing As ‘Closure’ over at Women in Crime Ink. His last comment in the thread ended with:

Remember - it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison.

To which Levi Page, administrator and message board operator of the War On Crime blog, replied:

Well I disagree, with that last line "it is better for nine guilty people to be set free than one innocent person be convicted and sent to prison."

Those 9 guilty people will be let out and most likely continue being a criminal, especially if they are a sexual predator.

Do the math.

A fine point Levi, even if not justifiable under our system of laws, because it illustrates a criminal defense lawyer’s worst fear of how a juror may literally mathematically calculate the effect of their decision.

Take a 12 person jury deliberating on an aggravated sexual assault of a child case. They know – instinctively, even if it’s not discussed openly – that there are 4 possible outcomes:

1. Innocent defendant is acquitted and goes home.
2. Innocent defendant is convicted and goes to prison.
3. Guilty defendant is acquitted and goes home.
4. Guilty defendant is convicted and goes to prison.

Options #1 or #4 are everyone’s preference. No jury wants to be involved in a case with either a #2 or a #3 outcome.

But they’re not sure. Not sure whether the defendant is guilty or not. Unsure of his innocence or his guilt, surely an internal debate on which is worse - #2 or #3 – starts in their mind.

And this is the crux of Levi’s argument. Let’s do the math.

Option 2: Innocent person is convicted and sent to prison. One person unjustifiably suffers horrible consequences. 

Option 3: Guilty sexual predator is initially ‘caught’ and accused, but skates. He not only goes home, but feels even more impowered to continue violating innocent children, again and again and again. Many people unjustifiably suffer horrible consequences.

Even if you throw in the innocent defendant’s friends and family members to up the number of wronged persons in Option 2, that has to be counterbalanced by an equal number of friends and family of the children who will be preyed on in the future. 

I’m not saying this happens in every case, or is discussed out loud in the jury room when it subconsciously enters the thought process. 

But taking Levi’s argument to its logical conclusion? It’s better that one innocent go to prison than one guilty person goes free. One freed guilty person will continue to victimize several future innocents. Accordingly, even a one to one ratio of innocent to guilty in prison is an acceptable rate.

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Four Austin Police officers in the news recently for improper use of Department computers received their punishment last Friday, ranging from 5 to 45 days leave without pay and in some cases a demotion.

The allegations involved looking at porn or “other inappropriate material” on the internet or through email, and that frankly sounds like something that should be punished, and harshly at that. But let’s delve a little further and take a look at the cases individually.

According to the Austin American Statesman article:

In the most serious case, Detective Troy Brown was suspended for 45 days and demoted to the rank of officer for accessing prohibited, sexually explicit Web sites and e-mail accounts with his city computer... Brown accessed the sites between November and March…

Sgt. Troy Officer received a 30-day suspension for viewing pornographic Web sites around Christmas, when Stribling said "nothing was going on at the office, he had a lot of downtime, and he ended up doing something wrong." Officer agreed to remove his name from a list of candidates to be promoted to lieutenant.

Assuming that the newspaper reports of the offenses were at least somewhat accurate, the punishment probably seems to fit the crime. But how about the other two officers?

According to Jordan Smith’s column in this week’s Austin Chronicle “Porn Punishment at APD”:

Slater… was demoted and given time off for spending nine seconds looking at a personal ad on Craigslist. Whether the ad was racy or sexually explicit is in dispute, since it’s no longer posted and the city was unable to come up with it…

The case against Hawkins is even more questionable. According to the disciplinary memo…Hawkins received a “sexually explicit email” with “pornographic images” that were sent to his work email, which Hawkins then forwarded to his personal, home email… he never looked at it at work. 

Rather, he opened it, realized what it was and immediately closed the email, sent it to his home email, and replied to the sender, saying that no emails like that should ever be sent to a city computer…The email in question did not contain anything illegal.

Slater was suspended without pay for 45 days… for 9 seconds worth of looking at an ad on Craigslist? And we don’t even know what kind of ad?

As for the last officer, I know I’ve clicked on emails and been surprised to find out what the content is. 

Yes, I use spam filtering, and yes, most of the time I can tell when an email is some form of spam, whether it’s porn, selling Viagra, hyping some bogus stock, or a letter from a former Nigerian prince who desperately needs my help to deposit $3.5 million in my bank account.

But, even spam filters and avoiding emails based on the subject line doesn’t make me immune to getting tricked. Part of the problem is that I have at times accidentally not opened legitimate emails, because my ‘personal’ spam filter overlooked it.

The overly harsh punishments meted out to the second two officers were most likely affected by the misdeeds of the first two. From a PR standpoint, APD didn’t want to look like it was allowing its employees to surf the internet for inappropriate or sexual content. So it punishes anyone and everyone who might have done ‘something wrong,’ to avoid looking like it coddles the serious offenders.

Unfortunately, this is also how our current criminal justice system works as well (this case not being criminal, of course). Legislators envision the worst possible scenario that any particular offense or crime could be, and then make that the minimum punishment…just to be sure.

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Grits for Breakfast pointed me to a very interesting new blog “Just Rants and Raves” written by a guy being supervised on a Dallas County sex offender probation. I hope to see more “probation blogs” pop up, because I think it will be instructive for everyone in the system. I’m sure that our local Austin criminal defense bar would find them fascinating. (If it’s not obvious, I’ll point out that not many defense lawyers have actually been on probation.)

The probation blogger was convicted of online solicitation of a minor, which is not listed under Chapter 21 Sexual Offenses, but instead Chapter 33 Computer Crimes of the Texas Penal Code. (Read his first post for his description of the offense, and the ensuing court case.)

One of the comments on Grits’ post asks:

So, there's a law that says you can't meet an underage person over the internet? Meeting someone underage is equivalent to statutory rape? A sex offense has been committed when 2 parties meet? Fine line to entrapment, no?

I realize we have similar laws to prevent homicides: as in you can get nailed for attempted murder by actively developing a plot to kill someone...but this seems different. You have to be looking into someone's head to apply the law.

Well, I’d encourage a reading of the statute itself, because more than just meeting someone underage is required. But, yes, it also involves looking at the defendant’s intent because it requires the element of “intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person”. Usually the state’s attempt to prove this part involves the saved conversations that have been recorded over email, instant messaging, or chat rooms.

As for entrapment? As I’ve blogged about previously, entrapment requires that the inducement by the state was of such a nature that a normally law abiding citizen would have succumbed to it, and committed the offense. I doubt a lot of jurors will publicly agree that they would have gone out and tried to meet the underage girl for these purposes (even the ones that might have).

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§ 33.021. Online Solicitation of a Minor

(a) In this section:

(1) "Minor" means:

(A) an individual who represents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

(2) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings assigned by Section 21.01.

(3) "Sexually explicit" means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that:

(1) the meeting did not occur;

(2) the actor did not intend for the meeting to occur; or

(3) the actor was engaged in a fantasy at the time of commission of the offense.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

(f) An offense under Subsection (b) is a state jail felony, and an offense under Subsection (c) is a felony of the third degree, except that an offense under Subsection (b) or (c) is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age.

(g) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

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§ 21.15. IMPROPER PHOTOGRAPHY OR VISUAL RECORDING. 

a) In this section, "promote" has the meaning assigned by Section 43.21.

b) A person commits an offense if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person's consent; and

(B) with intent to arouse or gratify the sexual desire of any person; or

(2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

c) An offense under this section is a state jail felony.

d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

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§ 21.12 IMPROPER RELATIONSHIP BETWEEN EDUCATOR AND STUDENT. 

(a) An employee of a public or private primary or secondary school commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works and who is not the employee's spouse.

(b) An offense under this section is a felony of the second degree.

(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.

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§ 21.11. INDECENCY WITH A CHILD. 

(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or

(B) causes the child to expose the child's anus or any part of the child's genitals.

(b) It is an affirmative defense to prosecution under this section that the actor:

(1) was not more than three years older than the victim and of the opposite sex;

(2) did not use duress, force, or a threat against the victim at the time of the offense; and

(3) at the time of the offense:

(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or

(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.

(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.

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§ 21.08 INDECENT EXPOSURE.  

(a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

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§ 21.07 PUBLIC LEWDNESS. (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse;

(3) act of sexual contact; or

(4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl.

(b) An offense under this section is a Class A misdemeanor.

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§ 21.06. HOMOSEXUAL CONDUCT.

[This section was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.]

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.

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§ 21.01. DEFINITIONS. In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

(4) "Spouse" means a person to whom a person is legally married under Subtitle A, Title 1, Family Code, or a comparable law of another jurisdiction.

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§ 21.01. Definitions

§ 21.06. Homosexual Conduct

§ 21.07. Public Lewdness

§ 21.08. Indecent Exposure

§ 21.11. Indecency with a Child

§ 21.12. Improper Relationship between Educator and Student

§ 21.15. Improper Photography or Visual Recording

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