Is the trial to decide whether or not BW's trafficing of lewd material
was because of a perversion or not, or what? BW has already admitted
he sent the picture to somebody in Oakley and discussed it or them in
a chatroom.
I would like to know what he said in the chatroom - or maybe I
wouldn't.
"§ 2252A. Certain activities relating to material constituting or
containing child pornography"
Here is the problem. I just looked up the law that seems to apply in
this situation and it reveals how dire Bernie's situation is.
http://www.law.cornell.edu/uscode/18/usc_sec_18_00002252---A000-.html
If you look at the following you will see
a)(1), (2)(a), (b)
b)(1)
d)(1), (2)(a), (b)
f)
There seems to be very little room in this law for "research" or other
"intentions"
Additionally in section b)1 you find some equally clear language
regards sentencing
"Whoever violates, or attempts or conspires to violate, paragraph (1),
(2), (3), (4), or (6) of subsection (a) shall be fined under this
title and imprisoned not less than 5 years and not more than 20 years"
Sounds like a mandatory minimum. A I remember there are two counts. I
don't know if that means 10 years mandatory minium or if there is a
judges prerogative to combine the two 5 year terms to run concurrently
limiting the minimum to 5 years total. Or whether there are other
alternatives like where Scooter Libby gets only months of actual jail
time had he not been pardoned.
If this law actually constrains the judge to 5 full years then I
wonder if there is time off for good behavior etc? Possibly 5 years
turns into 2.5 years.
Anyway you look at it, it doesn't look like you can just get 6 months
in Pleasanton, UNLESS the charges are reduced on a plea.
Other than that, and given what Bernie's lawyer has already said, it
would seem only jury nullification would spare him a conviction and
prison time, regardless of whether he was doing it for all the best
reasons. Very serious situation.
It would really be a travesty if all his actions and motives are as he
represents them to be.
Like him or dislike him, no one should want him jailed if his
intentions were only for research.
This could be a tough case for a jury who really want justice.
> Here is the problem. I just looked up the law that seems to apply in
> this situation and it reveals how dire Bernie's situation is.
>
> http://www.law.cornell.edu/uscode/18/usc_sec_18_00002252---A000-.html
>
> If you look at the following you will see
>
> a)(1), (2)(a), (b)
> b)(1)
> d)(1), (2)(a), (b)
> f)
>
> There seems to be very little room in this law for "research" or other
> "intentions"
<snip>
> Like him or dislike him, no one should want him jailed if his
> intentions were only for research.
> This could be a tough case for a jury who really want justice.
Of course, we don't know what he actually did. If the email he
sent was HTML formatted email, and the image tag was
<img src="http://illegalwebsite.com/xxx.jpg"> (this is a made
up example), a user would see the image as part of the text,
but the sender would not have actually sent it. It could even
be a legal image when sent but an illegal one when received
because the site may have changed it in between.
If the jury is looking for an excuse for the sake of justice
this sort of technicality, if applicable in his case, would
do the job. I wouldn't consider that to be sending an image,
but rather telling the recipient's mail program to go get the
image. The semantics of the img tag in this case are more
like "the guy in the blue coat on the corner of X and Y
streets has some illicit pictures he'll give you. Ask him for
xxx.jpg. The wording the the statute didn't naively seem to
cover this case.
--
My real name backwards: nemuaZ lliB
I'm a fan of Bernie, but geez, Bernie is no geek. Seriously, he uses a
Mac. He is on AOL. Need I say more?
Those sentences sound mandatory, but if you read up on those who have
been convicted, sentences under 2 years have been given for situations
much worse than Bernie's.
>
> Those sentences sound mandatory, but if you read up on those who have
> been convicted, sentences under 2 years have been given for situations
> much worse than Bernie's.
Well here is another problem. I seem to have read in some posts that
there are chat logs or other exchanges.
Now I don't know where that piece of information came from or if it is
based on fact.
But if there was some room, chat area, or similar situation where
exchanges are made between parties interested in child porn, then if
you go there to do investigative work or research, you aren't going to
be telling anyone that.
Rather, you are going to acting like "one of the guys"...
So if you are getting into the flow of their exchanges you are going
to be talking like them and if logs of that kind of exchange are
introduced into court with you saying such and such, thats going to
look very very bad.
The prosecution will say on Oct, 9 2004, you wrote the
following....."------------ "
So you respond, "yes I did, but only to allow me to infiltrate this
subculture".
One can only imagine what was said if any such logs exist.
The prosecution says...did you write this? You have to answer, "yes
I did".
Jurors begin to wonder what is the investigation and what is the real
person and how far can a person carry this "research" theme before you
begin to doubt their journalistic motive.
Now, it is quite possible that there are no chat/discussion logs and
that was just some erroneous bit of information someone put in a post.
One can only imagine what kind of taint inducing evidence might be
introduced.
Whats the old saying, "a picture is worth a thousand words". There
are pictures and then again there are pictures which even internet era
folks may find shocking. One wonders how many of the jurors will be
under 60 AND internet savy.
He doesn't have to be a "geek". I was describing a subtle difference
that would not be obvious to most users. The software he used could
have done it either way, one way may not technically violate the law
while the other would, and the choice could have been made by the
developers of the software Bernie used, not Bernie personally. AOL
would probably prefer that images not be transported in email unless
absolutely necessary - avoiding that reduces bandwidth and thus the
cost of providing the service.
It shouldn't make a difference, but that's not how the law seems to be
written. It would behoove Bernie's lawyers to check.
They probably have a lot of trials ahead of Bernie's. Then the trial could
go on for weeks. Yes justice takes a long time and then is it really justice
we get in the end?
John
> I'm a fan of Bernie, but geez, Bernie is no geek. Seriously, he uses a
> Mac. He is on AOL. Need I say more?
Bernie and I have more in common than I thought!
--
John Higdon
+1 408 ANdrews 6-4400
> Those sentences sound mandatory, but if you read up on those who have
> been convicted, sentences under 2 years have been given for situations
> much worse than Bernie's.
Just a note from a prior abc7news.com article on the subject
---------------------------------------------------------------------------------
Former prosecutor, Dean Johnson, is ABC7's legal analyst.
"As a practical matter, this type of crime calls for a guideline
sentence of anywhere from about 24 to 30 months, giving him the best
case scenario," says Johnson.
Not sure if he means per count or for all counts combined.
>
> http://www.law.cornell.edu/uscode/18/usc_sec_18_00002252---A000-.html
>
What I find intersting is this part of the law:
[....for purposes of inducing or persuading a minor to participate in
any activity that is illegal.[1] shall be punished as provided in
subsection (b). [....]
It appears that this whole law is based on the intent to persuade a
minor. And yet, there is nothing in the indictment to indicate that
they're charing Bernie with an intent to solicit a minor.
Seems to me that his attorney should take this approach, unless I'm
reading something wrongly here.
And *that* is saying something!
> They set BWs trial date for June 9, 2008. Does it take this long so
> that they can gather evidence?
No. His Lawyers waived his consitutional right to a speedy trial.
Meaning, they believe that they will benefit from more time than
the United States People.
> Like him or dislike him, no one should want him jailed if his
> intentions were only for research.
> This could be a tough case for a jury who really want justice.
Would selling a copy of _Lolita_ be considered distributing child
pornography?
That was the question faced by booksellers in 1956
long before the present ordinance existed. The book wasn't
published in the USA until the 1960s, but was generally
available at the time of publication. I read it about 1963.
Lolita is 12. Humbert was born in 1910 and would have
been 45 in 1955 the time of the story.
A similar question arose in 1962 with the release of the
film which starred Sue Lyon who was then 15 or 16. The
question was not that she was a prepubescent child -- she
wasn't! -- but that Humbert was so much older. Clearly
any sexual longing he has for a 12-year-old or for
a 16-year-old is illicit. (I being a "healthy"
17-year-old in 1962 had no problem lusting
for Sue Lyon.)
During these years, Vladimir Nabokov was
troubled not about accusations that he had written
kiddie porn (this slang phrase did not even exist yet -
"pornography" was illegal, period), but whether
he was a more competent writer in English
or in his native Russian, or alternately
in French. I say he was highly competent
in English.
> It would behoove Bernie's lawyers to check.
fat chance! aren't lawyers still using 286's running dos3? no internet experience. but i
wonder how they do that lexisnexis lookup on a 286.
{above is meant as humor. i cannot afford to replace the 286's of any lawyers who
may read this and feel CIVILLY offended.}
--
http://www.google.com/search?q=RuPaul+%7C+%22Ru+Paul%22+president+%
7C+libertarian+%7C+%7Eislamofascists+libertine
http://fainting-goats.blogspot.com/2007/11/talk-radio-sucks.html
http://www.brazilianartists.net/home/flags/
You can dig up local cases of child porn convictions on the net and
see for yourself that Bernie's treatment (5 year) is harsher than
others have received. There is a San Francisco DOJ website that has
the press releases of convictions.