The Lawyers' Turn

Alright, lawyers, I know you already read my previous post Testing the Waters, wherein your client is a:
45 year old man, never arrested for anything, at all, in his life. He is happily married, has two beautiful children, a good solid, but not overly lucrative, job.

He did exactly what you see on Dateline. He chatted online with what he believed to be a "13 year old girl." The subject matter of the chats was very explicit, and he sent explicit photographs of himself to her. After a number of chats, he set up a time to meet the girl. He brought condoms and lubricant. He was arrested by police at the meeting place.

Approximately 40-some blog-readers have already responded and told you what they think his sentence will be, and what they think it should be. Their responses ranged from "2 days community service" to "off with his head."

Now, it's our turn. This new client just came into your office and laid out these facts to you. When he says, "So, how bad is it? What's going to happen to me?" what do you tell him?

Or, prosecutors, you've just gotten this set of facts (and the corresponding evidence) from a detective. What kind of plea offer are you putting forth? What kind of sentence do you think the guy will ultimately get?

You can also say where you work if you want (it might give us some context), but you certainly don't have to.
If you want, you can share what you think should happen to him, but, again, you certainly don't have to. (I can see how it might be bad business for private attorneys to say, "I think he should fry.")

I'll post my thoughts either as an update here or in the comments within a couple of days.

If you're not a lawyer, please post your comments at Testing the Waters. That should make it easier to know who the comments are coming from, when so many people leave anonymous comments.


  1. My thought is that he should do service. A second offense would be a reason to nail him. But then, I'm a rube: I don't think people should to the time they currently do.

  2. Do these facts assume that the recipient of the graphic communications was not a minor at all but instead was an adult law enforcement officer? The discussion below assumes that and also assumes that the photos of the accused are not obscene according to the three-part test of Miller v. California.

    I ask because I had a case similar to this. I wanted to challenge the constitutionality of the statute based on the rationale of Free Speech Coalition v. Ashcroft, but my client insisted on pleading to two felony charges and one misdemeanor (with full probation).

    Free Speech Coalition held that a federal statute that criminalized (1) "virtual child pornography" produced without real children, and (2) images presented as child pornography, violates First Amendment guaranties, in that the governmental interest in prosecuting child porn is the prevention/punishment of harm to actual chiodren which the production of such materials entails--an interest that is not served by prosecuting dissemination of computer generated images or materials picturing adults who are portrayed as children.

    The same rationale should apply here. Communications which are indecent, but not obscene, are protected by the First Amendment. (FCC v. Sable Communications) If the recipient of lewd (but non-obscene) communications and photos is not an actual child, then the statute may be unconstitutionally overbroad because it criminalizes protected speech or expression in a manner that sweeps more broadly than the government's legitimate interests.

    The burden of justification of the statute would be on the government, including showing that any less restrictive means identified by the defense would not suffice.

    Good luck.

  3. I'm a Navy JAG (defense attorney). The military would probably charge this as an attempt crime under UCMJ Article 80. I'm guessing it would be attempt to commit the offense of carnal knowledge on a child over 12, OR attempt to commit the offense of indecent acts or liberties with a child. There are a bunch of other crimes (some of which are military specific), such as: indecent language, indecent exposure, soliciting another to commit an offense. Then there are all the other possibilities depending on the specific facts - like for example burglary, or conduct unbecoming (if he was an officer), or attempted adultery (if he was married).

    That said, if the defendant was going to take a dive the trial counsel would clean up the charges so that he could plead providently.

    And I would guess the that the cap on confinement would be around the 4 to 5 year mark - and the actual sentence would be right around the 3 to 4 year mark.

  4. Here in NY, I would say it depends heavily on whether it's prosecuted by the state or by the feds. I've seen people get ACOD's for this in state court. Federally we had a guy in this same exact situation who got something like 30 months. What do I think should happen? Probably probation with treatment.

  5. corporate lawyer in NY

    I dunno, assuming no mandatory sentencing, I figure they'd still nail the "sexual predator" with a year or 2 in jail just to look good to John Q Public. And of course, registration as a sexual offender for at least 3 years.

  6. What I'd like to see him get? 5 years execution suspended, 10 years probation, registration for 10 years.

    What he'll get? 10 years, e/s/a 3, 10 years probation, lifetime registration.

  7. I have been waiting for the chance to comment on this, but I'll confess that I'm only a 1L. We haven't studied this at all yet.

    If I was dropped into repping this guy with the knowledge I have today and nothing more, I would hope for the following. I would advise him to get into treatment/therapy immediately. Lord knows our criminal system doesn't have the capacity to provide services to all the sexual predators locked up currently. At least not where I'm at.

    My biggest prayer would be that he would not serve time. I think rushing to lock up offenders creates a culture of recidivism by limiting the future potential of individuals based on their convict status. Guy certainly has issues. As a mother of small children (girl and boy) I don't want him anywhere near my kids. However, I have got to believe in services instead of locking up.

    Sorry I'm not more "legal" in analysis. But we haven't gotten that far in CrimLaw.

  8. I've had this case.

    State time he is looking at ACD / PTI / ARD (or whatever you call the diversionary program in your state) if the defendant comes off well (in the sense of he doesn't give people the creeps) for first offense, or, if he does give the creeps, a penal exposure of no more than 3 years.

    Feds I would suspect -- although I haven't had it in the federal context -- I suspect 30 months +/- 20 months.

  9. Former NY attorney (although I keep my licence current), now an academic.

    My guess is that, assuming it is a state charge, the best case would be an ACD with diversion therapy. Worse case, probation. Most likely, the system will want to scare him straight.

  10. Not a lawyer but to my horror a friend of my husband placed himself in this situation.

    He got 32 months minimum security, lifetime registration.

    However, he did not plea, he took it to trial and my understanding of the situation was that in front of the jury he was far less than contrite.

    I imagine a plea would have been less.

  11. I practice criminal law in Central California, and I would expect prison (though not a lot since he has no record whatsoever) or best case, perhaps probation and a year in jail, but he would definitely get sex registration (here, it's always for life. No exceptions.)

    The condoms and lubricant are bad facts which indicate that he intended to molest the thirteen year old, so it would probably get charged as an attempted molest, which is worth half of 3 or 6 years.) The pornography thing alone would probably not get him prison (if they got around the constitutionality argument) but probably registration.

    What should he get? I'm a program type myself, but I have my doubts about the prospect of rehabilitation of a person who thinks he could secretly nail a 13 year old. He's one of those fellows who thinks the rules don't apply to him. Someone who can justify that transgression even once is pretty well into his psychopathy.

    Besides, what's the treatment, really? Changing his fantasies? I wish there was something real to offer program-wise, but don't know what it is.

  12. I'm a public defender in Central Pennsylvania. Here this would Criminal Attempt- Statutory Sexual Assault. This is a felony 2, punishable by up to 10 years in prison. We have an indeterminate sentencing system with guidelines that apply to the minimum and a discretionary maximum up to the statutory max.

    The guidelines are 6 to 14 months, the max MUST be at least double that. Most likely he would 1 to 5 years in state prison. However, this would NOT be a Megan's Law offense here.

  13. I'm a 3L, with nothing to contribute on this issue... but I thought I'd pop in to say that in light of all your comments, I was surprised to find this story on the BBC today about an Arizona man who received 200 years in jail for having child porn on his computer.

  14. I'm in private practice in NH. I pled one of these a couple of years ago to a non-registrable misdemeanor (attempted endangering), 12 most all but 90 days deferred (60 days to serve) and 2 years probation. This was a very good deal at the time and the sentences have gone up since then. Generally--assuming no record and no aggravating facts (and frequently there are both--the cases seem to go for a year or under, registration and probation (which means the possibility of prison).
    I immediately got the client a full evaluation (over the course of 3 days), including a plythesmograph test and this helped in advocating for a good disposition. I also enisted all of his friends and relatives to write to the prosecutor.

  15. As a former child abuse prosecutor in the Bronx, I think the odds are that the top charge on the indictment would be an attempted rape in the first degree. Specifically, this would be an attempted statutory rape under section 130.35 of the New York Penal Code. New York law makes it a higher level offense (a rape in the first degree, a class B violent felony offense) first if the child is under 13 and the victim over 18 and then if the child is under 11. In this case, since the defendant is over 18 and the child 13, the top charge would be a 110/130.35 or attempted rape in the first degree. An attempt lowers the level of the crime by one degree, so depending on whether this is a predicate felon, we are looking at a top charge on the indictment of a C violent felony punishable by anywhere from 3 1/2 to 15 years. A plea usually involves an agreement to allow a defendant to plead guilty to a charge lower than the highest charge on the indictment. My guess is that in the Bronx, we would offer this guy a D violent felony and 2 years of jail assuming he's not a pred. Since juries do not tend to like these cases in the Bronx as they see this as entrapment by the police, we may even go lower and allow the Defendant to take the E violent felony and 1 1/2 years in jail.

  16. Serena, I would like to clarify one part of your comment (respectfully, of course!). If the jury were completely informed (by the prosector, I hope!) they would then have full knowledge of the fact that none of the arrests on TCAP (To Catch a Predator) constitute "entrapment" since (1) The initial contact in the chat (you can check the actual logs at: was made by the defendant and (2) the adult "decoy" posing as a minor are never law enforcement personnel but instead are volunteers from the watchdog organization, Perverted Justice. "Entrapment" (as a legal issue at least!) applies to law enforcement personnel.

    The "lure" to the homes to meet the "decoy" that you see on Dateline occurs well after the criminal act anyway and although many have criticized LE for working with Dateline to "sensationalize" the arrest. I contend that the resulting increase in awareness (for parents AND young teens) of the pervasiveness of online predators far outweighs any concern that a network may simultaneously benefit.

  17. Just to clarify, and correct me if I'm wrong, I think Sarena said that Bronx juries "see these as entrapment," not that they actually are.

    I would think that a very common defense to these cases would be entrapment. (Not that it's necessarily true or even likely that the jury would believe it, but there are few other defenses out there.) I think what Sarena is saying is that Bronx juries would be more likely to believe that entrapment defense.

    Now, I notice that both Sarena and Seeking Solace mention they are in/from NY... but give very different sentencing ideas. Any ideas to explain this discrepancy?

  18. I am not an attorney. I am not even American. But it seems to me the attorney in the case has gone off at a tangent. It is immaterial what we think. The issue is what is the going rate in the jurisdiction and how can the attorney fulfill their duty to the client. This is a sideshow. And arguably it is unprofessional conduct.

  19. I think the answer to the question of why the difference under NY law relates to whether the state can prove an actual attempt - ie did the defendant get "dangerously close" to committing the crime. (Aside from the fact that there was no actual 13 year old) I think often prosecutors decide they may not be able to prove an attempt, and that's when you see the ACDs or other minor dispositions. The condoms and lubricant here make it easier to show an attempt, but I don't think it's a slam-dunk, as Serena seemed to assume.

  20. Root: Please read BJ's original post AND this post carefully before thinking "unprofessional conduct." This is a hypothetical.

  21. In Boise, with that profile, you'll get 4-5 years probation with jail (30-180 days), register as sex offender, tons of counseling. All depending of course on your psychosexual evaluation saying you're amenable to treatment. We have these busts every year and a half or so. And most people that get caught up in them are first offenders.

  22. I hate to say it Blonde, but Sarena's right and Solace is wrong.

    Though obviously, I think this should be a probation case, in the Bronx Sarena and her ilk would almost certainly indict. Moreover, the offer of a "D" and 2 would be about what I'd expect. The problem here from a defense perspective is that after indicting on the "C" you can't (absent getting the charge reduced on motion) go to the judge for a probationary plea (a fact that doesn't escape our prosecutorial friends).

    While I think there's an outside chance here of probation, treatment and registration (depends on your DA, Defense Attorney and judge), the most likely outcome is a split sentence (6 months jail, 5 years probation with registration etc). That being said, I can envision a constellation of players that would result in a 2 year prison sentence. No matter who you have, I'm not, (as Solace seems to suggest), seeing ACD. No how, No way.

    Unfortunately, it's likely to be just as bad, if not worse in Manhattan, Queens and Brooklyn.

  23. Coming in late on this. I'm a criminal defense lawyer in Ohio. I had this guy (though without the photos and the condoms) in state court. He was charged with importuning and attempted gross sexual conduct. The first person in Ohio to face this was a doctor who got 6 months in prison. My guy was getting a masters in education and student teaching at a junior high school. We argued Free Speach Coalition v. Ashcroft to the trial court (and later to the court of appeals). Lost that, which was no surprise. Pleaded no contest to the importuning; gave up any idea of teaching. 6 month suspended sentence and 3 years paper.

  24. Public Defender in Pennsylvania -- I wanted to answer earlier, but time hasn't really permitted. Anyhow, here's how I see it stacking up in our local system:

    Criminal Attempt Statutory Sexual Assault (F2); Criminal Attempt Aggravated Indecent Assault (F2); Criminal Attempt Indecent Assault (M2); Corruption of Minors (M1);

    For a plea, our DA's office would likely accept a plea to the Statutoy Sexual Assault, which wold carry a guidelines sentence of between 6-12 to 14-28. Might only agree to accept the Agg. Indeceny Assault which is actually worse, at a guidelines sentence of 22-44 months or 36-72 months incarceration. This requires he voice the intent to penetrate her with something other than his genitalia, though, or else they don't have enough to make me want to take a plea to it.

    Either of these will requrie a Megan's Law evaluation -- should they find him to be a sexual preadtor (but not a violent predator) it would be a 10 year reporting requirement.

  25. Criminal Defense Atty. in CT
    If no record: 20 e/s/a 25 months with 15 years probation and 10 year registration if you get a judge not afraid of how he is perceived.

    If a record: 30 e/s/a 5 iwth 20 years probation and life registration

  26. Alright, I've held out long enough.

    I have experience enough to answer this question for 2 different jurisdictions. One where I worked during law school, and one where I work now.

    In both states, he would be going to prison. I think if he wanted to take a plea early on (no trial) he would probably get the lower end of the 2-5 year range. Which means doing close to 2 years in prison, and then spending the remaining few years on parole. I think if he went to trial or dragged the case out too long, it might be more like a minimum of 3 or 4 to 5.

    In both states he would be looking at least 10 years of Sex Offender Registration, possibly continuing throughout his lifetime.

    So, yup, it looks like in most places you're going to real actual prison for this.

  27. To:
    Criminal Defense Attorney in CT

    Subj: 20 years probation

    - Isn't the maximum 10 years?