Defending the Innocent

Child-pornography arrests and prosecutions are on the rise—and perhaps, on occasion, going too far

Just after 1 a.m. on the morning of Sept. 19, 1996, Lawrence Matthews sent across the Internet a picture of a little girl, maybe 7 or 8 years old, engaged in a vulgar sex act.

Matthews had already dispatched other such images into the Web's darkest corners. He'd also become a fixture in "Preteen," the chat room known as a prime trading spot for child pornography.

Now his latest missive was headed to "Blonde 1024."

Blonde 1024 was an FBI agent. Three months later, more agents burst through the door of Matthews' home in Silver Spring, Md., carrying away disks, a printer and three computers.

The virtual world is one of murky alibis. Still, Matthews had a damn good one: He was a veteran broadcast reporter who'd worked for such outlets as National Public Radio. A freelancer at the time of his arrest, he claimed to have been updating the child-porn story he'd done a year earlier for Washington, D.C., radio station WTOP-AM.

Colleagues rallied to Matthews' defense, and his credentials as a notable journalist were trotted forth. There were the predictable First Amendment arguments, and the American Civil Liberties Union filed an amicus brief on his behalf.

"I am not a pedophile, and there's not any evidence to indicate I ever had any personal interest in this in the past," he later told the American Journalism Review. "I had done the story before for WTOP, and I wanted to see what else is under this rock. Is it simply people trading pictures, or is it evidence of something more sinister?"

The FBI had a different take. "While in the chat rooms, Matthews would use screen names such as Mr. Mature, Dd4SubFem and LCMinMD," according to court records. "Once in the chat room, Matthews would ask that other members in the chat room send him, via computer, graphic files containing visual depictions of child pornography."

It did not help that Matthews had no freelance contract proving he was poking into the Web's creepier corners for a story assignment.

U.S. District Court Judge Alexander Williams Jr. refused to consider the reporter's First Amendment arguments, although the judge did note, according to the AJR story, that Matthews was a "very highly regarded journalist" who had exhibited no trace of "sexual problems or any perversion issues."

However, added the judge, the "law is clear that a press pass is not a license to break the law." Then he sentenced Lawrence Matthews to 18 months in a federal penitentiary and levied a $4,000 fine.

When contacted by the Tucson Weekly, Lawrence Matthews declined to discuss his case.

I'm no Lawrence Matthews. Call me a coward, but I won't go within a mile of child pornography to research this story. Not only do I find it sadistic and vile, but I also prefer not to retrace Matthews' ill-fated steps.

But there's a story in that, too: So thick is our justifiable repulsion with this shadow world, so zealous are our ambitions to stamp it out, that even reporting on the issue seems to be prodding the beast.

Yet amid this zeal are critics who claim government overreach—and they're not just defense attorneys or academics. Federal judges, too, are increasingly refusing to follow draconian sentencing guidelines in certain cases. They are, say some, recognizing the nuance between hapless perverts and hard-core, file-swapping pedophiles.

"Prosecutors always tell the judge that harsh sentences are necessary in order to send a message," says Douglas Berman, a law professor at Ohio State University. "But I think what judges are seeing is a lot more people locked up for long periods, without any obvious benefit from that. Because at the same time as the prosecutors are saying, 'We need to send a strong message,' they're also saying that the problem is getting worse and worse."

And harsh, those sentences are. Responding to an increase in child-porn prosecutions, Congress mandated minimum federal sentences of five years for those convicted of receiving child pornography, with the average prison term jumping from just 21 months in 1997 to 91 months a decade later.

In other words, tough sentences don't seem to be solving the problem. The FBI reports well more than 10,000 child-porn arrests since 1996, and considers it the fastest-growing category of crime. The U.S. Immigration and Customs Enforcement agency reports similar numbers. According to the U.S. Department of Justice, child-porn prosecutions have jumped 40 percent since 2006, resulting in more than 2,000 cases each year.

Why the surge? Ask law enforcement, and they'll point to increased investigative resources, greater search-and-seizure powers, and ever-more sophisticated investigative techniques.

"Part of the reason for the increase," says Daniel Barry, a cyber-crimes detective with the Tucson Police Department, "is that we've received new training on the tools we can use to find people who are exploiting minors using the Internet. Based on that training, we've been able to make a lot more cases, and that's why we're bringing a lot more forward.

"Southern Arizona is kind of untouched, as far as that is concerned," Barry continues. "No one had been working these types of cases here."

Sgt. Sonia Pesqueira, who runs the sex-abuse unit for the Pima County Sheriff's Department, agrees that a greater law-enforcement emphasis means more child pornographers behind bars. Her unit now has two deputies who specialize in technology and intelligence work, as part of a computer-forensics support unit.

They do their best to stop child-pornography purveyors and collectors, who keep breaking the law despite a growing risk of arrest, says Pesqueira. "The common theme with these guys is that it's an obsession, and they don't stop. Knowing the risk, they'll still jump in with both feet and everything else. It's just something that overwhelms them and compels them to do this, and they will continue to do it."

Until they get caught, that is, with computer trails a mile long. "We usually get convictions," says Pesqueira.

Ask attorneys who routinely defend these cases, and you'll get a different story regarding the increase in the prosecutions.

"I'm not sure it's because the problem is any more urgent than it was before," says Rick Lougee, a Tucson defense lawyer who specializes in sex-crime cases. "I suspect it's because this is one of those issues where there's no political division over whether it's bad: Everybody hates it. You can't go wrong investigating and getting a conviction in these cases. It's one of the mom-and-apple-pie issues that everybody wants to get a piece of."

According to Lougee, this prosecutorial explosion is driven by an influential, albeit unpublished 2007 study of child-porn convicts at the Federal Correctional Institution in Butner, N.C. Among the 155 inmates volunteering for the study, 85 percent reported sexually abusing minors. Earlier research had suggested that only 30 to 40 percent of those arrested for child-porn possession had actually molested children.

The study gave law enforcement added impetus for a crackdown. In fact, every officer and agent interviewed for this story mentioned the research.

But Butner's conclusions were erroneous, says Lougee. "The study was flawed, other experts told me, in that the people being questioned were obviously inmates in a sex-offender-treatment program, and were being rewarded for making up actual acts. They were also being punished for being in denial if they didn't come up with alleged hands-on (molestation) activity earlier in their youth.

"The problem," Lougee says, "is that the study has been accepted by juries and prosecutors."

The study's authors had submitted their findings in a paper to the peer-reviewed, widely read Journal of Family Violence. That's before the Federal Bureau of Prisons suddenly asked that paper be retracted. The BOP also blocked the study's authors from discussing their findings at police conferences. In a letter of explanation to law-enforcement officials, one BOP official called it "unwise" to "generalize from limited observations gained" in the study and apply it "to the broader population of persons who engage in such behavior."

I called Bureau of Prisons spokeswoman Traci Billingsley to find out why the Butner research has never been published, although it's become practically a mantra among law enforcement. "The reason," says Billingsley, "is because it was not a Bureau of Prisons study."

That's despite the fact that one of its authors, Andres Hernandez, was then the director of the Butner Sex Offender Treatment Program.

Nonetheless, most cops don't doubt Butner's conclusions for a minute.

"Of course, there are going to be the 40-year-olds living at home with Mom and Dad—they never really had a life, and don't come out of their room—who don't have access to kids," says one Phoenix police officer who investigates cyber-crimes and who asked that his name not be used. "But if you find a guy who has access to kids and has this (pornography), you're always thinking, 'Is he doing something or not?'

"Thing that bothers me most," the officer says, "is that most people don't understand what child pornography is. They think it's a kid lying naked on a sofa or something. That's not what I'm talking about. I'm talking about little kids, babies—2-year-olds, 4-year-olds, 5-year-olds, 8-year-olds—who are being tied up and brutally sexually assaulted and put on video. The suspects get that stuff, and they sit there and watch it and masturbate to it. And if they had the chance to touch a kid, they would."

I'm sitting at a long conference table on the upper floor of a shiny downtown Tucson high-rise. Across from me is Special Agent Patrick Cullen, from the FBI's Tucson cyber-crimes unit.

"If you look at the Butner study," Agent Cullen is telling me, "it says that 70-plus percent of child pornography involves people who have either been hands-on (with children) or thought about it," he says.

That adds urgency to catching child-porn purveyors before they take that step, and it's one of the driving forces for Cullen and his colleagues—some 180 FBI agents nationwide—who investigate child pornography by venturing into the Internet's unholy corners, including peer-to-peer sites such as the now-defunct LimeWire, where material is anonymously shared.

The agency won't disclose the size of its Arizona cyber-crimes unit. But Cullen calls it an agency priority. "To be a federal crime, the (child porn) must involve some interstate trafficking, and most Internet child pornography certainly rises to that level." He says agents take college-level classes where they learn the craft of tugging clues from cyberspace. "And if it's on the Internet, you can assume there's a way to look at it."

Cullen also attributes the increase in arrests to growing public awareness. That's boosted, he says, when agents such as himself visit schools and church groups, where they preach about Internet safety. "You see an increase in the number of people making reports. We try to be somewhat proactive in being protective. I don't think it's an increase in child pornography. I just think it's an increase in public awareness."

Along with greater awareness, the tougher laws have also made the public safer, he says. "If you look at the federal sentencing guidelines, they've definitely gone up. Ten years ago, a possessor of child pornography would usually get probation. Now the sentences are at least five years in prison. So the risk of getting caught is much more dangerous to the (perpetrator) at this point."

That said, Agent Cullen doesn't buy the notion that computer bumblers who accidentally download child porn routinely end up with years behind bars. "We've seen instances where (someone) might have downloaded it from somebody," he says, "and they only have a couple of images when you do the analysis of the computer.

"The casual downloader would probably never rise to our attention in the first place. But then you see people who have thousands and thousands of images. Nobody likes the crime. Everybody is appalled by it, so everybody works together."

In this case, "everybody" includes Internet giant Google, which has developed software to help agents track online child-porn traffickers. One tool, informally called the "bedspread detector," uses sophisticated algorithms to recognize patterns among vast databases. It helps match background features in child-porn images such as pictures, curtains and bedspreads, and can provide corroborating proof in arrests.

Google has donated another software tool to the National Center for Missing and Exploited Children that detects child pornography on YouTube. And Microsoft has created the Child Exploitation Tracking System, a database which helps law-enforcement agencies share evidence.

For the FBI, this is a concerted effort under its Innocent Images National Initiative, begun in 1995 to stanch what was seen as explosion in cyber-crimes against children. Between 1996 and 2007, the agency reports a more than 2,000 percent increase in the number of open cases—from 113 to 2,443.

Under the initiative, the FBI tracks everything from websites that post child porn, and file-sharing programs where porn is swapped, to online pedophile groups. It also coordinates with the Internet Crimes Against Children Task Forces, or ICAC, a program funded through the U.S. Department of Justice. That provides a link to local law enforcement: In Arizona, the Phoenix Police Department distributes those annual grants—typically in the $350,000 to $450,000 range—throughout the state. These task forces coordinate investigations among federal, state, local and foreign law-enforcement agencies.

Within the U.S. Department of Homeland Security, Immigration and Customs Enforcement, or ICE, targets child pornography through its Operation Predator. The program is a conduit for ICE's work with the U.S. Postal Service, the ICAC task forces and the FBI, among others. It also links into the "Virtual Global Taskforce" composed of domestic and foreign law-enforcement agencies.

Closer to home, this can translate into intercepting child pornographers at the border, or seizing laptops that might contain pornographic material. Although such seizures have drawn fierce criticism from travelers and civil-rights groups, the practice was recently upheld by the 9th U.S. Circuit Court of Appeals. Invasive or not, it has also scored a few victories, such as the recent arrest of a man and his wife who were found with 75 images of child pornography on their computer when they crossed from Mexico into the United States at the Lukeville port of entry.

Rick Crocker is ICE's deputy special agent in charge of Tucson. He defends those border seizures as crucial. "Most child pornography is generated overseas," he says, "and we're trying to keep it out of the states."

Sometimes, agents see that material coming even before it reaches our border. "We have ICE agents stationed in countries all over the world," he says, "and we work with our counterparts to coordinate and cooperate in the investigations of these crimes."

Of course, much of that child porn is also homegrown. And it doesn't just come from commercial producers, he says. "We've had instances where adults have molested their own children, and then they post that out there and trade with other parents."

That's a particularly disturbing thing to contemplate. I'm interviewing Crocker by phone, and his voice shifts an octave or two. "Most of us are married and have kids," he says. "As law-enforcement agents and parents, we're all very sensitive to this. Nothing bothers us so much as some innocent child being violated or abused by people who they trust."

In 2008, the U.S. Supreme Court upheld a congressional measure aimed at the burgeoning Internet child-pornography trade. The 2003 law, "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today," otherwise known as the "Protect Act," prohibits the solicitation or offering of explicit images of children, even if those images are completely digitally created (i.e., artificial), or the material doesn't exist and the offer is simply fraudulent.

The measure was fashioned in response to a 2002 court decision that found it unconstitutional to prohibit possession of material that doesn't depict real children, such as computer-generated images. In striking down the earlier law, Justice Anthony Kennedy described it as a concept that "prohibits the visual depiction of an idea."

Perhaps. But that old law's intention was to nourish the Child Pornography Prevention Act of 1996, aimed at helping prosecutors grapple with new technology that blurred the line between real children and digital images of children.

Under the new law, people who obtain a pornographic image they believe to depict real children—whether or not it actually does—could be accused of possessing child pornography. Likewise, if someone tried to foist computer-generated images on another person by convincing them those images were of real children, that someone could also be found guilty of purveying child porn. While the intention was to take some of the burden off of law enforcement for delineating between real and fabricated images, civil-rights advocates saw an unacceptable broadening of what could be considered child pornography.

Taken to extremes, the law could potentially ensnare people who innocently buy DVDs with computer-generated images of children, or snap pictures of their bathing babies.

Far-fetched? Consider the case of Cynthia Stewart, an Ohio mother who in 1999 was arrested for photographing her 8-year-old daughter at play in the bathtub. For the next two years, Stewart fought attempts by the state to take custody of her daughter. She endured threats of a 16-year jail term, and spent $40,000 in legal bills before a high-profile campaign pressured the spotlight-seeking county prosecutor to relent. Other women in Ohio and New Jersey have faced similar charges.

If the Supreme Court seems intent upon broadening child-pornography laws, lower courts are starting to curb their more-excessive effects. Many federal judges have begun criticizing changes in sentencing laws that quadrupled average prison terms in recent years. Often, sentences for viewing or possessing child pornography can actually exceed punishments doled out to child molesters.

Last year, for example, the 2nd U.S. Circuit Court of Appeals threw out a 20-year sentence for a man convicted of possessing child porn. The ruling noted that such sentencing guidelines, "unless applied with great care, can lead to unreasonable sentences."

Judge Jack Weinstein of the U.S. District Court in Brooklyn has stated that people who simply view images of children—as opposed to those who create or sell the images—pose little real danger to children. He has repeatedly thrown out convictions that carry what he views as overly harsh sentences against troubled people.

"We're destroying lives unnecessarily," Weinstein told The New York Times. "At the most, they should be receiving treatment and supervision."

But such leniency has a long way to go before it reaches Arizona, where you'll find the nation's strictest child-pornography laws. Those convicted here of sexually exploiting a minor—which includes the possession of child pornography—face between 10 and 24 years in prison without the possibility of parole, probation or early release. Each image in someone's possession is a separate offense, and the law requires that those sentences be imposed consecutively. Thus, you have the Phoenix high school teacher who was sentenced to 200 years in prison for possessing 20 images of child porn. (Prosecutors had asked for 340 years.) His attorneys appealed the case to the U.S. Supreme Court, which let the sentence stand.

Under federal law, Morton Berger likely would have received five years in prison.

At Berger's sentencing, then-Associate Justice Rebecca White Berch (now chief justice), of the Arizona Supreme Court, noted that our state's prison terms for child-porn possession are "by far the longest in the nation and (are) more severe than sentences imposed in Arizona for arguably more serious and violent crimes.

"Moreover, the sentence at issue is longer than that imposed in Arizona for many crimes involving serious violence and physical injury to the victim," Berch said. "Second-degree murder, for example, like possession of child pornography, also carries a minimum sentence of 10 years, but a term for murder may be served consecutively with the sentence imposed for other crimes. Similarly, the minimum sentence for possession of an image of child pornography is longer than the presumptive sentence for rape or aggravated assault."

Amy Adler teaches at the New York University School of Law, and has written extensively about the legal and social ramifications of child pornography. While not specifically citing Arizona law, she says the judicial system has, by and large, responded appropriately to a profusion of child pornography now found on the Internet.

"There has been an explosion in the availability of this material," she says. "And that's why, according to the government, there's been an explosion in prosecutions. Of course, some people will be unfairly swept up in that. But I think there's been a legitimate reason for the government to extend its enforcement activities, even if some of the individual cases end up being unjust."

But she does cite some concerns about overreach. "You can have someone going to jail for longer for downloading child pornography than for bank robbery," Adler says. "So there are people beginning to ask whether there are excesses in sentencing."

That's where good judgment plays a role. "I hope prosecutors are using their prosecutorial discretion," she says, "to prosecute people who are the worst offenders. Because, from what I understand, they can't prosecute everybody they find."

Tami Loehrs sits amid a bank of computers, inside a deliberately nondescript building on Tucson's northwest side. Her small firm specializes in computer forensics, and she typically finds work with public defenders or private defense attorneys such as Rick Lougee. Her job involves sifting through a computer's digital guts, to prove that a defendant didn't deliberately download child porn. This is exhaustive work, and it doesn't come cheap.

But that work can mean the difference between exoneration and a life beyond bars. She describes a Massachusetts case, in which a government employee was handed a laptop for his work. "Long story short, Trojans and viruses had just inundated his machine and put a bunch of child pornography on it," Loehrs said. "Several hundred thousand dollars later, and the loss of everything he ever had, we were finally able to prove he was innocent. I actually proved that a virus did it. That's very difficult to do, and takes a lot of time."

It can also quickly run up a $20,000 tab—which means that most defendants can find themselves stuck.

That government worker was one of the lucky ones. "In most cases, I don't have time to go in and track this activity back to a hacker or a virus or a Trojan, or even another user of the computer," Loehrs says. "Tracking that kind of activity forensically is like looking for a needle in a haystack. It's incredibly time-consuming. You could spend months looking at one piece of evidence."

For Loehrs, however, it is job security. But she also gets frustrated with overzealous arrests and prosecutions.

"They're calling college students using LimeWire sex offenders," she says. "These aren't sex offenders. Innocent people are getting caught up in the technology. They're swearing they're innocent, and the forensics show that they're innocent. But you get a bad attorney, a bad jury, and you end up convicted. You're called a sex offender over some computer files that weren't yours. I see that happening, and it's frightening."

In other words, the present has not caught up with the future. "People don't understand the technology, and it's not being analyzed correctly," Loehrs says.

Lawrence Matthews is long since out of prison. He's still a journalist, though he won't consider ever again covering child porn, and urges caution on others who do. With good cause: The threat to reporters who investigate this dark corner of society is real and quite spooky.

Which is only one reason why I wouldn't go near child porn while researching this story. It's a strange sensation, writing in the abstract. That feeling is shared by Amy Adler, the New York law professor who has written extensively on the topic.

"If you're writing about drugs, you can't go buy drugs," she says. "If you're writing about child pornography, you can't go look at child pornography. That's the rationale the government has for not allowing anybody doing research on this stuff to look at it. It's harmful to the child being photographed for the materials to be reviewed. That's the theory.

"It's gotten to the point where even attorneys doing child-pornography defense cases are restricted in the access to the material that their defendants are accused of having produced or possessed."

In other words, that's good fortune for myself and for her.

"As a legal researcher, I've never seen child pornography," Adler says. "It's a problem for my research that I can't see this material, but it's also a great relief to me. I'm sure that seeing it is very painful."