Archives : 2006 : February

Be Careful What You Surf For: Online Undercover Operations to Trap Child Predators Can also Catch the Innocent

By: Vince Imhoff, Attorney at Law

Mary is a graduate student in sociology writing a research paper about using the internet for romance. She uses a search engine to locate romance oriented chat rooms. She visits these chat rooms and observes the communication in them for hours at a time. She notices that in several chat rooms, some of the chatters appear to be much younger than the intended age. Other chatters seem interested in getting personal information about the under-aged chatters. Mary researches this topic as well, looking at several sites and news articles about Internet Child Predators and child exploitation on the web. Much to her surprise, government authorities arrive at her home with a search warrant to seize her computer and search her home for signs of involvement in child exploitation. They remove home videos, cameras, personal photos and videotapes, clothing, and other personal articles.

Could the above scenario actually happen? How can the government know what someone is looking at on the internet? Once I turn my computer off, how can anyone know whats on it? Is this something that really goes on?

How Are Internet Users Tracked?

When a user uses an internet search engine, the computers that perform the search keep a record of the users computers IP address and of the search terms used. This information is stored and analyzed by search companies in order to determine how to make searches more efficient. Popular items searched are copied by the search engines and kept in huge memory caches on site to further speed up searching. All of this information remains stored indefinitely.

Most of us think of an Internet search engine as a 21st century version of a public library. Rather than flipping through the card catalogue and browsing the shelves, we enter a few key words in a search engine and find useful resources and information almost instantly. We also tend to think of the Internet as offering us even greater privacy than the library. After all, if there are billions of people on line in a given day, even if the government could trace one computer users activity, how could they possibly notice me? The library keeps a record only of books we check out, not those we took to the reading room and re-shelved or left behind. The Internet search engine, on the other hand, keeps a record of every single search by every single computer.

Government Uses Search Records to Locate Criminal Suspects

The government is very interested in viewing search records, and believes these records could help locate criminal suspects who may otherwise be undetectable. In a recent news story, Google, the largest internet search engine provider, revealed that it is resisting efforts by the government to access records of billions of searches performed by its users. Googles legal papers in the matter and other investigative reports have asserted that other search portals and Internet providers have already complied with similar subpoenas.

The government believes the information could help it track many types of criminal terrorists, Internet child pornography distributors, child predators and molesters, and even drug traffickers. Using sophisticated programs to comb through the mountain of data, authorities may be able to isolate patterns of search behavior that could point to people who are involved in crime. Privacy advocates, Google itself, and other critics decry the governments efforts as a massive invasion of privacy of millions of law abiding Americans of whom the government has no suspicion at all. Many people simply find it distasteful that the government is gathering information on its citizens as a whole, without any suspicion at all.

Other opponents of the initiative fear that if the public believes that the government is potentially watching everything that they search on the internet, that people will be more reluctant to take advantage of commerce and entertainment opportunities, and the growth in these businesses will slow.

Negative Effects of Being Under a Government’s Watchful Eye

Could an innocent searcher really get caught under the governments watchful eye through innocent searching? It may be possible. What if many members of the family are all using the same computer? So far as the internet knows, all of the users have the same IP address and would be the same identity. Suppose a government agent looking for people trying to hide drug money uses the search data to locate people who searched for information on money laundering and tax shelters within a specified period. Suppose your child searches for information on drug trafficking and money laundering for a report for school on current events. Suppose you use the same computer that week to look up information on tax deductions to prepare your taxes? While this is a simplistic example, the government is certainly not revealing what key words it is interested in, or how its algorithms work.

The US Constitution protects American Citizens against self-incrimination and suspicion-less government searches of our homes. Many privacy advocates fear that these intrusions into private information and gathering of information about citizens is a dangerous precedent, equivalent to McCarthy era searches of public library records and other investigation of private behavior. Only time will tell if Google’s stand is able to protect computer user’s legitimate privacy interests or not.

What the Public Needs to Know About Criminal Cases

Swazi Taylor, Esq. and Jay Mykytiuk

Criminal Law: An Overview

Criminal law involves the prosecution by the government of any person accused of an act that constitutes a crime. A crime is the commission of an act or the omission of an act in violation of a public law. Most crimes are made so by statute; such as a penal or criminal code. It is the filing of criminal charges that starts the lawsuit. The charges are generally contained in a written complaint filed by the governments attorney, the prosecutor (or district attorney). Some jurisdictions use the Grand Jury–a public body of citizens, who hear evidence and then decide whether or not charges should be filed. Often the charging document is referred to as an indictment. In either case, once the action is commenced, the prosecutor must prove beyond a reasonable doubt that the accused (defendant) committed the crime charged. Those convicted of a crime maybe subject to imprisonment, fines or both.

Historically crimes fit within two categories: Felonies and Misdemeanors. Felonies are generally crimes punishable by more than one year of incarceration in prison, along with fines. In addition, there are other implications of a felony conviction (for example, the right to vote is lost and the right to own a firearm is lost as well). Misdemeanors are less serious crimes that, upon conviction, result in a local jail sentence of generally less than one year.

State vs. Federal Court

Most criminal prosecutions are heard in State Courts. All states (excluding the District of Columbia) have their own criminal or penal code, and defendants who violate this code are tried in the state in which the violation occurs.

The Federal courts have jurisdiction over both misdemeanor and felony offenses. If you have been arrested or are under investigation by a local police department, you will most likely be prosecuted in a state court. State crimes are violations of state and local statutes or ordinances. They are prosecuted in either Municipal or Superior Courts in the county in which the charges are filed, by either City Attorneys or District Attorneys.

If the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA) or Homeland Security Agency is involved, you probably will be prosecuted in the federal court system. Misdemeanor or felony offenses that are prosecuted in federal courts generally involve issues of federal law or involve crimes that have occurred on federal property or crimes in which unlawful activity crosses state lines. As a general rule, federal crimes involve much more serious penalties. Federal crimes are prosecuted by Assistant United States Attorneys.

Misdemeanors

Misdemeanors are generally considered less serious criminal acts. They are usually punishable by a maximum fine of $1000 and a county jail term of one year or less. Misdemeanor convictions may also result in loss of privileges, such as ownership of a firearm, professional licenses, public offices, or public employment. Examples of misdemeanor violations include:

• Petty theft
• Prostitution
• Vandalism
• Driving under the influence
• Simple drug possession
• Simple assault
• Trespass

Felonies

Felony crimes are more serious, and are generally punishable by a state or federal prison term or, in certain highly serious felony cases, death. Typically, felony convictions also result in loss of privileges and a forfeiture of certain civil rights, including the right to vote. Examples of felony crimes include:

• Murder
• Commercial Burglary
• Residential Burglary
• Possession of controlled substances
• Possession of marijuana, controlled substances, dangerous drugs for sale or transport
• Robbery
• Rape
• Assault, generally involving force or injury
• Battery
• Criminal Threats
• Child Molestation

The process of bringing a defendant to trial in state court varies across the states. The general steps may include:

• Investigation and Arrest (may or may not include the use of warrants)
• Booking
• Preliminary Hearing or Grand Jury Proceedings
• Misdemeanor or Felony Complaint/Information or Indictment
• Arraignment
• Settlement Conferences
• Hearings on Legal Motions
• Trial Proceedings
• Sentencing Hearing
• Appeal

If you are arrested for violation of the law, a good criminal defense attorney should:

• Advise you of your rights
• Keep you apprised of impending court date(s)
• Advise you of what lies ahead in the criminal process
• Have a strategy for the defense of your case
• Contact the police and/or prosecutor to negotiate dropping charges or filing a lesser charge
• Arrange bail or release on your own recognizance
• Make a motion for your release or for reduction of bail
• Investigate the matter thoroughly
• Make a motion to suppress illegally obtained evidence
• Make all appropriate legal motions
• Negotiate and advocate aggressively on your behalf
• Examine and/or cross-examine witnesses at all hearings
• Prepare the case for trial proceedings
• Conduct the trial, where necessary
• Prepare argument and witnesses for sentencing
• Inform you of any plea deal offered by the prosecution

Imhoff & Associates, P.C. Criminal Defense Attorneys has a nationwide network of attorneys. All of our criminal attorneys are focused on one goal: Employing a strategy to acheive the best possible outcome based on the facts of each case.

You can assist in your defense by:

• Exercising your constitutional right to remain silent
• Retaining qualified counsel as soon as possible
• Gathering documentation of your good character (reference letters, employment history, community service, educational history with transcripts, medical history and doctors reports, etc.)
• Keeping a diary of all significant events and potential witnesses, which will help your attorney prepare the best possible defense

As you can see, the investigation and prosecution of persons accused of committing crimes involves complex procedures and rules. It is best to seek out a highly qualified and experienced criminal attorney, who is licensed to practice law before the State court or Federal court where the criminal charges have been filed.

For a more detailed explanation of the criminal process, see our Criminal Case Process Page

Rights of the Accused

By Donna Ortlieb, Esq. and Natalie Banach

It has often been said that the fairness of a society can be determined by the treatment of its least favored citizens, and by definition, those accused of crimes fall into this category. Subject to the loss of liberty and sometimes even of life, those accused of crimes face potentially life-changing situations. Thus, before consigning them to such a fate, a just society would want to be exceptionally sure that the accused were in fact guilty of the crimes with which they were charged – in other words, that they were guilty beyond a reasonable doubt.

It is from this vantage point, that defendants’ rights begin to make sense. In order for a society to function with fairness and justice, a certain level of protection for the accused must be guaranteed. In the United States criminal justice system, these protections include the right to a speedy and public trial before a jury of one’s peers.

Rights of the Accused

These three specific rights of the accused, which are clearly spelled out in the Sixth Amendment, provide a substantial amount of protection for any citizen accused of a crime. Moreover, as important as they are for the accused, they also provide a variety of safeguards for society at large.

A system of justice in which the innocent were jailed, the guilty ran free and in which prosecutors were able to go after political opponents, would be anything but just. Therefore, just as any free society could not exist without the right of free speech and expression, no democracy could exist without a fair justice system in which those accused of crimes were treated fairly and ensured their rights. It is in this context that some of the rights of the accused will be more clearly spelled out.

Right to a Jury Comprised of Impartial Peers

By the time of the American Revolution, trial by jury was an accepted and established right in the colonies. Seen as a basic form of protection, the colonists stood steadfast in their insistence to maintain trials by jury. At the time, the conventional juries were comprised of twelve jurors, chosen at random from the widest population.

One of the reasons the right to a trial by jury is offered to all criminal defendants is that it is a means of prohibiting oppression by the government. At its inception, the idea was that those being accused of serious crimes should be protected from unfounded charges and corrupt judges. Thus, providing the defendant with the opportunity to stand trial in front of a jury offers a unique safeguard against overzealous prosecutors and biased or eccentric judges.

A jury is usually composed of twelve members, although this isn’t always a strict requirement. In fact, the Supreme Court has recognized that all that is needed is that the jury be large enough to promote deliberation, that it be free from outside influences, and that it present the opportunity for a large cross-section of the population to be represented. The actual selection process permits lawyers from both sides to screen out potential jurors that have a bias (called a “challenge for cause”). Each lawyer is also allowed to eliminate a handful of jurors simply because they feel the person may not be sympathetic to their cause (called a “peremptory challenge”). However, a juror’s race, sex, religion or national origin is not a proper basis for exclusion. The exclusion of any specific segment of the population from jury service poses the risk of eliminating certain qualities of human nature and varieties of human experience from the process. Such exclusion deprives the trial of a perspective on human events that may have a significant, but unknown, importance.

The jury system is designed specifically to protect the rights of the accused. The idea is that a panel of one’s community members – one’s peers – is best qualified to make important decisions of innocence or guilt. In addition, the jury system enhances democracy by allowing ordinary citizens the opportunity to participate in the legal system, and to assess whether the system is functioning properly. Thus, a free and fair trial by a jury composed of one’s peers remains a vital right of both the accused and society at large.

Right to a Speedy Trial

The right to a speedy trial is among the most important rights of the accused. Its Intent is to prevent unnecessary and oppressive pretrial incarceration, and to preserve the ability to prepare and present a defense for the accused. The right commences when criminal prosecution begins and extends only to those people that have been accused of a crime. The idea is that the criminally accused cannot be confined in a jail cell indefinitely, and must be brought before a magistrate in a timely manner.

In order to assess whether the accused has been deprived of his right to a speedy trial, four factors are usually considered: the length of the delay, the reason behind it, the defendant’s assertion of his right, and the prejudice to the defendant. If a judge finds that a defendant has been deprived of his right to a speedy trial, the result can be dismissal of the charges or even the reversal of a conviction.

The public at large also has an interest in maintaining the right to a speedy trial. Not only do people in jail have to be supported at the public’s expense – through taxes – but a delay often diminishes any rehabilitative effects that the criminal justice system is intended to have.

Right to a Public Trial

The right to a public trial is imperative because it provides that the defendant’s family and friends, the community and the press can all observe whether the government is upholding the rights associated with the legal system. When trials remain secretive and no knowledge about them is distributed to the public at large, the opportunities for corruption increase greatly. Public trials, on the other hand, demand accountability by their very nature. Conclusion: A fair criminal justice system is one of the hallmarks of a well-functioning democracy. The rights associated with such a system, namely that of a speedy and public trial presided over by one’s peers, protect not only those accused of crimes, but also society at large. The rights of the accused therefore also become the rights of the public, and guarantee that everyone may examine how the system is functioning and whether it is fair.

Donna Ortlieb is an Imhoff & Associates, P.C. Criminal Defense Attorney in Southern California. Donna Ortlieb has practiced Criminal law for the past 7 years. Donna Ortlieb has successfully defended clients in criminal misdemeanor and felony matters. Donna Ortlieb has experience in jury and bench trials, arraignments, bail and O.R. release hearings, entry of negotiated pleas, sentencing hearings, restitution hearings, civil compromise hearing, and administrative law hearings. Donna Ortlieb is a member of the criminal appeals panel of Appellate Defenders, Inc., San Diego, the American Bar Association, Orange County Bar Association, National Association of Criminal Defense Layers, and California Attorneys for Criminal Justice. Donna Ortlieb attended Southwestern University Law, graduating in 1994 and obtained her undergrad from University of California, Irvine in 1991. (Updated Feburary 2006)