In San Bernadino County, the Sheriff issued four citations to teenage boys who are alleged to have posted nude and semi-nude photos of underage girls online. These images were originally sent via multimedia message to the teenage boys using a cell phone and are therefore referred to as “sexting.” On Monday of this week, the San Bernadino Sheriff had received information that a social networking site was displaying inappropriate photos of 14 and 15-year-old girls.

These nude photographs were originally sent voluntarily by the alleged victims to the teenage boys but were then circulated among an entire group of students and posted on at least one social networking site without their consent. These photos were removed from the website at the request of the sheriff department; however, the “sexts” raise many criminal defense issues: is sexting a punishable sex crime? Do these images constitute child pornography? Should sexting require the perpetrators, and/or the girls who originally took and sent the images, to register as sex offenders for life in California?

Sexting is a common practice among teenage girls and boys; however, the sending of sexually suggestive images involving nude or semi-nude teenage girls or boys can indeed lead to felony criminal charges under California law. Possible charges for sexting images include: sexual exploitation of a minor, possession of harmful matter depicting a minor engaging or simulating sexual conduct, commonly known as possession of child pornography, to name a few.

In this new digital age of sexting, where there is an almost instantaneous flow of information and images, sex crimes are being punished, and prosecuted by the District Attorney in new and different ways in order to keep up with the technology. And that leads us to the ultimate questions: do we really want the teenagers in California being prosecuted as sex offenders for sending immature, sometimes racy sexual photos to their boyfriends and girlfriends? Are these hormonal minors really the intended target of the sex crimes laws in California?

On March 5, 2010, Ben Roethlisberger, current Pittsburgh Steelers quarterback, was accused of sexually assaulting a 20-year-old woman at a bar called “Capital City” located in Milledgeville, Georgia.

Fortunately, for Mr. Roethlisberger, after reviewing the alleged victim’s testimony, and all the other forensic evidence in the case, the District Attorney has determined that it could not prove its case beyond a reasonable doubt and therefore did not proceed to arrest Mr. Roethlisberher or to pursue criminal charges against him.

Given that the charges stemmed from an alleged sex offense which tool place at a bar it remains unclear whether the District Attorney’s decision was based on credibility problems with the alleged victim, the presence of alcohol being involved with the incident, or the alleged victim’s perceived unwillingness to assist in the prosecution of this matter.

As is often the case with rape cases, although the alleged victim went to the hospital and had a rape kit done, there was insufficient male DNA to conclude whether Mr. Roethlisberger had sex with the alleged victim. Furthermore, although the medical exam revealed genital bruising, bruising in itself does not conclusively show sexual assault occurred but rather merely shows the presence of rough sexual activity. Interestingly enough, the District Attorney stated something us defense attorneys have been espousing for years, “…we do not prosecute morals…we prosecute crimes." Let’s hope that the District Attorneys in California adhere to these same standards for the prosecution of its sex crimes.

In Massachusetts, three teenage girls have been accused of bullying a 15-year-old girl who committed suicide. The girls are facing a variety of criminal charges ranging from stalking to assault and battery and assault with a deadly weapon.

The prosecutor alleges that the minor hanged herself after months of bullying at the hands of these teenage girl but it seems to me, as a criminal defense attorney in California that there may be some problems here with causation.  Three additional teenagers were also charged with statutory rape. 

Without a clear sense of the facts, this case appears a bit incongrous.  For example, where do the statutory rape charges come into play? Were the female teenagers who bullied the victim also play a role in having older male teenagers have sex with her?

Clearly, the conduct alleged here is horrifying: bullying to the point of suicide but a good criminal defense attorney also understands that the alleged victim herself might not have been an emotionally stable and may not have been a completely blameless individual.  There are always two sides to the story.  Only time will tell whether these teenage girls will be held accountable for their inappropriate behavior, and if so, to what extent they will be punished.

In California, a defendant accused of having killed a man who allegedly molested him when he was a minor, pleaded no contest to voluntary manslaughter—a lesser offense than the first degree murder with which he was originally charged.  The defendant claims that the person he attacked, and killed, had committed child molestation against him when he was a minor but had not been prosecuted for the sexual abuse.  The accused alleges that this man was a childhood neighbor of his who had begun to molest him when he was 11 years old.

Under the plea bargain terms, the defendant faces a sentence of anywhere from probation and no jail time to 10 years in state prison.

Both prosecution and defense will argue for what they believe to be an appropriate sentence for this violent crime.  Any and all mitigating and aggravating circumstances, including the details of the child molestation, will be considered by the Judge in determining a sentence.

If believed as true, defendant contends that he killed this man because he abused his position of trust as a boy scout leader to sexually abuse and to manipulate young boys.  He alleges that the sexual abuse occurred during camping trips where alcohol and drugs would be  provided before the molestation would begin.  The defendant also alleges that his abuser continued to contact him by calling and visiting as he became an adult which became a constant reminder of the sexual abuse.

In California, it is not permissible to “take the law into your own hands” to remedy a wrong you believe has been done to you.  However, that being said with sex offender law and child molestation being such “hot button” issues in California today, only time will tell if these examples of vigilante justice will be prosecuted as harshly as other types of violent crimes and sex crimes.

The Japanese are world renowned for being a fascinatingly diverse country by adhering to both being sexually conservative and sexually liberal attitudes.  The newly released Japanese “RapeLay” game is the latest example of this sexual dichotomy.  What we might call a sex crime, apparently in Japan is considered some type of rape-fetish free speech.

The game starts with an underage girl on the Tokyo subway waiting for a train. She asks, “Can I help you with something.”  At this point the person playing the game can choose a method by which to sexually assault the girl.  Choices include: groping and lifting up her skirt, what we in California might call a sexual battery or molestation or the player can decide to stalk her by following her onto the train and/or to sexually assault the girl’s mother and sister.

The videogame player can also choose to include other “friends” to participate in the various non-consensual sex crimes and you can choose to commit rape over and over again.  Apparently the game also provides the videogame player with a motive for rape: the girl falsely accused the game player of committing molestation on the train so the motive for the rape is revenge.

Gamers who have played the game vehemently defend “RapeLay” claiming, “The idea of banning it, or telling people what they can and can't do just because on the off chance some kid might get involved with it is just ridiculous” and they may be right.  There are no studies which conclusively prove that playing a sexually violent game will actually lead to sexually violent behavior.  However, the question remains where should we draw the line between sex offense and First Amendment protected free speech?

“Dirty Dancing” Sex Crimes Acquittal This story caught my attention and, in my opinion, the facts of this case are truly amazing (and ridiculous). In California, anyone perceived to have committed a sexual crime, or convicted as sex offender, faces extreme social stigma, a substantial prison sentence, and mandatory sex registration for life. California has some of the toughest sex crimes laws in the country and attempts to closely monitor all persons who have been convicted of a sex offense. But what about a case where the alleged sex crime is a teacher’s failure to stop some type of consensual “dirty dancing” during a choreographed dance routine?

In Georgia, a former high school chorus teacher was acquitted of all criminal charges stemming from a sexual dance routine his students performed, allegedly on his watch, in his classroom, in 2008. After a two day trial, the teacher was found not guilty of contributing to the depravity of a minor.

While California may be perceived as a more liberal state, than a Southern state such as Georgia, I have no doubt that an overly zealous Los Angeles Prosecutor might very well pursue a case like this if given the opportunity.

In California, there are a host of different sex crimes which may be charged as misdemeanors that someone can be charged with: indecent exposure, annoying or molesting a child, sexual battery, disorderly conduct, harmful matter sent to a minor and it begs the question, just what type of conduct should be punished as a “sex crime” with the possible consequence of being forced to register as sex offender for life? Certainly, “dirty dancing” doesn’t come to mind when one hears or uses the term sex offense does it? And more importantly should it?

Just about every potential client who walks into my office seeking criminal defense advice seems to know about Miranda rights.  I attribute this universal knowledge to delightfully entertaining, yet legally inaccurate, criminal law television shows such as Law and Order, CSI, and NCIS.  Often, one of the first things I hear from my clients is “They didn’t read me my rights.” “They“ of course being the Los Angeles Police Department (LAPD), the Los Angeles Sheriff Department (LASD), or the California Highway Patrol (CHP). The cops.  And when I hear this mention of Miranda, I consistently think to myself, if only this Miranda issue would make a real difference in the case.  Unfortunately, the truth of the matter is most Miranda violations, even if found to be a Miranda violations by the Court, do not result in a dismissal of the case, or even a slap on the wrist of law enforcement.   On February 24th, The Supreme Court just issued another nail in the coffin of our Miranda protections in Maryland v. Shatzer.   My favorite Justice (tongue in cheek), Justice Scalia wrote the opinion and six other Supreme Court Justices fully joined in the opinion.

In Edwards v. Arizona, the Court held that a suspect’s waiver of his Miranda rights, after a 14-day break in police custody, was presumed involuntary and coerced.  This ruling meant that because the suspect already had previously asserted his Miranda rights, even if there was a 14- day break in custody, and the defendant was then re-arrested but agreed to talk to the police without an attorney, the suspect’s agreement to talk, or his waiver of his Miranda rights, would be considered involuntary and could result in suppression of the statements.

In Shatzer, the Supreme Court reversed the Maryland Court of Appeals and held that Shatzer’s return to his pre-interrogation life in prison, for a period of 2½ years before being re-questioned by law enforcement, constituted a break in custody and constituted a voluntary waiver of his Miranda rights. The court further held that the Edwards case did not require the suppression of the involved statements 2½ years later, because the Miranda waiver was considered voluntary.

Here’s the really questionable part of the holding.  The Supreme Court reasoned that a suspect who has been released for at least two weeks, or 14 days, following a law enforcement custodial interrogation, presumptively has enough time to re-acclimate to his daily life, his family/friends.  The Supreme Court arbitrarily concluded that 14 days is a sufficient custodial break which will erase the taint of any police coercion which may have previously occurred. So now it seems that as long as 14 days have passed since you were last questioned by law enforcement, your Miranda rights may be trampled all over again, without consequence, even if you previously told law enforcement you did not want to speak to them without an attorney present.

Well it may seen antithetical to some that in California if you are sentenced to felony or misdemeanor probation, and are ordered to “violate no laws” that you may still be allowed to smoke medical marijuana while on probation.  Well, the initial reaction is both correct and incorrect.  

First of all, there are many situations in which I have successfully argued for a client to be allowed to continue to use medical marijuana while the client was on probation for a different type of offense such as theft, solicitation, or prostitution.

Now, it is true that Judges are very skeptical of defendants who claim that their medical condition can only be treated with medical marijuana.  However, the fact of the matter is that unlike drugs such as methamphetamine, heroin, crack cocaine, or cocaine, marijuana is not believed to create a physical dependency on it and many people do not wish to take pills or medication to address problems such as stress or anxiety.  Opponents of medical marijuana, of course, insist that marijuana creates a psychological dependence even if it does not create a physical one.  Therefore, depending on the individual facts of the case, a person on probation may still be permitted to smoke medical marijuana, with a valid medical marijuana prescription, provided that his or her criminal defense attorney makes the court aware of the medical situation and ensures that the person is explicitly permitted to do so by the Court.

Unfortunately, when it comes to drug rehabilitation programs in California, such as Proposition 36 (Prop 36) or Deferred Entry of Judgment  (DEJ), the client is facing an uphill battle if he or she wishes to use medical marijuana while on probation for an addiction issue even if he or she is in rehabilitation for a totally different type of drug such as methamphetamine, cocaine, crack cocaine, or heroin.

In People v. Brooks 2010 DJ DAR 3977; DJ, 3/17/10, C/A 2nd, Div 6, The Court held that even if a defendant was authorized to use medical marijuana,  pursuant to a valid medical marijuana license from an authorized caregiver, in strict conformance with Proposition 215, the Court may still impose a probation condition prohibiting the defendant from using marijuana (while on Prop 36 probation.) And in all likelihood, the fact remains that no matter what the studies show, Courts will continue to prohibit the use of medical marijuana, no matter what the reasons, while a client is on informal or formal probation for a drug-related offense. 

As many people know California has extremely strict mandatory sex offender registration laws for specified sex offenses. As part of Megan’s Law, anyone can find a list of the punishable sex offenses, and of convicted sex offender’s names, photos, and personal identifying information, on the California Department of Justice’s Sex Offender Tracking website.

In 2006 in a California Supreme Court case called Hofsheir, 37 Cal.4th 1185, the California Supreme Court held that requiring sex registration for oral copulation (Cal Penal Code 288a), where minor was at least 16 years old and there was less than a 10 year age difference with alleged perpetrator, but not requiring sex registration for statutory rape (Cal Penal Code 261.5) in the same circumstances, violated Equal Protection. This holding resulted in many sex crimes attorneys filing habeus corpus petitions on behalf of their clients on probation or parole for an oral copulation offenses who had previously been ordered to register as a sex offender.

However, the looming issue remains what happens to defendants who were convicted of an oral copulation offense but are no longer on probation or parole? In People v. Picklesimer 2010 DJ DAR 2866, the California Supreme Court instructed that a writ of mandate may be filed for those people who already ended their probation or parole period for an oral copulation offense and were required to register as a sex offender.

Unfortunately, just because there is now a clear remedy to help people in this unique situation does not mean that the writ of mandate will be granted when it is filed. The court always retains the discretion to order sex registration on any criminal case, even if the Penal Code does not require it. Therefore, while Picklesimer may look like some good news for a handful of people currently required to register as sex offender for an oral copulation offense, it may be a remedy which does not provide any actual relief.

I often find myself saying to clients, “The wheels of justice grind slowly….if at all….” Sad but true.  As criminal defense attorneys we have to fight tooth and nail for the system to treat our clients like living, breathing human beings.  We also frequently encounter unexpected problems during the duration of a normal felony or misdemeanor case which unfortunately delay the final resolution of the cases for our ever-anxious clients. 

This issue of lagging, or delay, in reaching a conclusion to a criminal case, has arisen recently for me in two different types of grand theft cases.  Although the facts are very different for these theft cases (one identity theft and one grand theft by embezzlement), the ever-present issue of the amount of victim restitution remains the same.   This issue of restitution also rears its ugly head in fraud, embezzlement, forgery and petty theft (shoplifting)  cases.

For whatever reason, failed subpoenas, insufficient written documentation, inability to find/locate alleged victim, the issue of victim restitution in financial crime cases seems to be the proverbial thorn in the court’s side when it comes to the smooth and efficient execution of justice. In financial crimes cases that do not go to trial.   And to this problem, this lagging, all I can say is that as criminal defense attorneys we may have to learn an exercise in patience but always to make sure that we never give up, or agree to an amount that cannot be proven, simply because the case has dragged on for too long based on some amorphous concept of victim restitution.  As dedicated criminal defense lawyers, we will keep fighting the good fight, and forcing the wheels of justice to move slowly but at least they will continue to move…