Recent Blog Posts in June 2011 |
| June 20, 2011 |
| What are the possible penalties for child pornography charges? |
| Posted By Shawn Cline |
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Possession and distribution of child pornography are some of the most common felony charges that I deal with. Almost without exception, the individual was caught as part of a "catch a predator" type of sting, conducted by either federal or state law enforcement. Depending on the facts of the case, there is much that can be done to defend cases like these, particularly where the individual has not made a confession to law enforcement. When these stings are conducted, the law enforcement officers cannot see the subject of the sting, after all, the police are sitting on a computer somewhere far away from the subject of their investigation. Police rely on subpoenas for information such as the IP address of the subject computer, as well as the name of the host internet provider to attempt to identify who was using the computer when the alleged conduct took place.
These cases are extremely complex, and you must hire an attorney who understands computer forensics. Many very good lawyers are ill-suited to handle a child pornography case, simply because they do not understand the principles behind peer-to-peer networks, which are the primary means of transfer and receipt of child pornography in the internet age. But one thing is not complicated: the potential punishments for child pornography offenses. They are extremely harsh, across the board. Let's take a look.
It may seem patently unfair, but there is a tremendous difference between how child pornography charges are punished in the state versus federal systems. In Virginia, possession of child pornography under 18.2-374.1:1 is a Class 6 Felony, punishable by up to 5 years in the penitentiary. That sounds bad, and it is, but it's even worse when you consider that the Commonwealth's attorney can allege every image as a separate charge! It doesn't take long before the charges add up to a considerable amount of prison time. That being said, it is typical in Virginia to have an actual sentence significantly lower than the maximum punishment, with some portion of the total sentence suspended based upon compliance with judicial orders following release from prison.
As bad as that is, the federal system is far worse. There are several federal statues involving child pornography, but the most common is 18 U.S.C. 2252. This statute carries a possible 20 year sentence for a single count. The difference between the state and federal system is that a single federal count may actually result in a sentence approaching the maximum penalty! The reason for this is that the federal system's sentencing guidelines are typically much more severe than the state system. It is not unusual for an individual's sentencing guidelines in the federal system to come in at three or four times what they would be for the exact same child pornography offense in the state system. I get a lot of questions from clients in both systems wondering why the penalty ranges are so vastly different. I don't have a good answer for this, and frankly it is patently unfair that one defendant gets a sentence drastically longer than the other, simply by having the misfortune of being prosecuted in federal versus state court.
That being said, there are tactical decisions to be made when facing trial in the state court, simply based on the possibility that the feds may take interest in an ongoing state case, and simply take the matter over. This happens quite often, believe it or not, and when it does things have quickly gone from bad to way worse.
The bottom line is that possession and distribution of child pornography are some of the most serious charges you can face in Virginia. You must have an attorney who can handle these charges in both state and federal court, and has done so before. Computer forensics is a complicated field, and most attorneys don't know a thing about peer-to peer networks and the means by which these images are distributed today. Call an attorney who does, and who is ready to fight for you! |
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| June 15, 2011 |
| What is the difference between malicious wounding and assault? |
| Posted By Shawn Cline |
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I frequently meet with clients who are facing charges of malicious wounding, which is a Class 3 felony, who are wondering why they were not charged with simple assault, which is a Class 1 misdemeanor. Obviously, the difference in potential punishments is huge (20 years in state prison for malicious wounding versus 12 months in jail for assault), but what they want to know is how the offenses themselves are different.
Let's start at the lowest level, with simple assault under 18.2-57. If you read the code, you will notice that it doesn't really define the terms "assault" or "battery". That is because these are what are known as "common law" offenses, in other words, offenses dating back to our legal system's English roots. An assault is basically an offer to do violence to another, coupled with the means by which to do so. A battery is any unwanted touching of another. So an assault does not require physical contact at all, simply an expressed offer to engage in unwanted physical contact. Battery, however, does require unwanted physical contact.
Assault in Virginia can be a felony in certain circumstances, for example a third offense assault against a family member (see 18.2-57.2) or assault on a law enforcement officer. That being said, assault is usually a Class 1 misdemeanor punishable by up to 12 months in jail.
Things get far more serious when the Commonwealth's Attorney decides that the facts of a physical altercation rise above a simple assault and battery, and they elect to charge an individual with malicious wounding under 18.2-51. Malicious wounding is different from assault in several ways (beyond the staggering difference in potential punishments). Malicious wounding is not a common law offense, so its elements are described in the statue itself. The code requires that a defendant "shoot, stab, cut, or wound" or by any means cause "bodily injury" to another person "maliciously" and "with the intent to maim, disfigure, disable, or kill" to be convicted of this offense. For purposes of this statute, bodily injury can be inflicted simply by striking with fists or other body parts, in other words, a weapon need not be used. If the defendant engages in this conduct but without "malice", then he is guilty of unlawful wounding (a Class 6 felony), instead of malicious wounding. Malice is a complicated concept, but it is largely centered around that conduct which is calculated and deliberate, with minimal provocation.
There is an even more serious version of malicious wounding, referred to as aggravated malicious wounding under 18.2-51.2. This offense is a Class 2 felony, punishable by 20 years to life in prison. Aggravated malicious wounding is the same as malicious wounding, with the additional element that the victim must be "severely injured and is caused to suffer permanent and significant physical impairment."
Returning to the initial question (and the one that comes up most often) the difference between simple assault and malicious wounding really lies in the state of mind of the defendant. The question for the jury is whether the individual acted with the intent to cause bodily injury, and whether the individual acted with malice. If the person acted with intent to cause bodily injury, and did so with malice, then he is guilty of malicious wounding. If the person acted without malice, then he is guilty of unlawful wounding. Finally, if the person acted without the intent to cause injury at all, he would be guilty only of assault and battery.
As you can see, there are a myriad of issues involved with these kinds of cases, far more than I can discuss here. If you have been charged with a assault or with malicious wounding, contact us right away. The stakes are high, and time is of the essence in building your defense! |
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