In defense of the defense lawyer

Yours truly (L) with Terry Rose (R); photo by Leo Martin

In Wisconsin, possession of child pornography carries with it a three year mandatory minimum sentence.  In other words, when the statute applies, the judge must put you in prison for at least three years upon conviction for possessing a single image.  (Yes, the legislature usurped the much-hyped “judicial discretion” in sentencing.)  And actually, you don’t even have to “possess” the image or even have it on your computer’s hard-drive!  Merely seeing the image on the web could be enough to lock you up in the state pen.  It’s a good thing, therefore, that mere child nudity might not be enough to constitute child pornography.  If it was, then every mother with a picture of her kid taking a bubble bath would be guilty and sentenced to prison.  And every major cable network would be guilty of distributing child porn for showing the movie Pretty Baby, starring a 12-year-old Brook Shields who played a child prostitute and appeared naked in the film. 

In a recent criminal case in Kenosha, my fellow criminal defense attorney Terry Rose got a child porn case dismissed on those very grounds: the image allegedly possessed by the defendant did not constitute child pornography.  This upset some Kenosha residents who took to “social media” to condemn Terry and express their uninformed and dangerous opinions.  I’ll address their specific complaints below, while incorporating some basic lessons about our criminal justice system. 

Former prosecutor doesn’t like the burden of proof

David Lat, a former prosecutor, has weighed in on the Dan Markel murder trial.  For those who don’t know about the case, Markel was a law prof at FSU who got into a nasty divorce and child custody battle with his wife.  There was plenty of vitriol flying in both directions.  And when Markel was shot point-blank in the head while pulling into his garage, the police suspected the wife’s family of setting up the hit.  For those who enjoy true crime, the podcast Over My Dead Body did an excellent job covering the case.  (Click here and scroll down to season one, called Tally.)  I found everyone involved in the saga to be very unlikable, yet I couldn’t stop listening to the podcast and, in fact, listened twice.

Tucker Carlson, Roger Stone, and Judicial Bias

In a recent episode of his evening talk show, Tucker Carlson used the Roger Stone case to shed some light on the inner workings of our criminal justice system.  Tucker’s analysis was very informative; however, his viewers should know that the legal absurdities he identified aren’t limited to Federal judges gunning to take down Trump’s supporters.  Instead, the problems he exposed are ingrained in our state courts as well, and they are ruining the lives of ordinary Americans in run-of-the-mill cases.