In almost every case involving child pornography prosecutors in Massachusetts are faced with what should be a difficult decision: to charge possession of child pornography or to charge distribution of child pornography. Let’s look at some common facts. Rarely, if ever is a defendant caught with one image or a few images. This is because child pornographic materials are accessed through file share programs. The files that people receive though peer to peer networks usually contain scores if not hundreds of images. Under Massachusetts law this permits the prosecution to charge the more severe felony, distribution of child pornography. And usually, the prosecution does just that, it charges distribution. However the charge of possession, a lesser included felony is typically charged as well. This post examines why that is done and some thoughts on defending these cases.
The District Attorney Wants to Force a Guilty Plea on Its Own Terms
The penalty for a conviction of distribution of child pornography is ten years in state prison. This is a minimum mandatory sentence. There is no parole afforded someone convicted of this crime before he or she serves a full ten years. For the most part prosecutors in Massachusetts are not looking to punish the offender for the full ten years. But they do want to get some jail time. So, if they indict the more severe charge they know that most defendants will want to get a deal. They will agree to serve some jail time in exchange for dropping the distribution count. They will be able to plea to the lesser included possession charge.
The District Attorney Does Not Want You to Plead Guilty Before a Lenient Judge
The district attorney also knows that if you are only charged with possession of child pornography your lawyer might try to get the case in front of a judge known for lenient sentencing. While judge shopping in Massachusetts is not permitted there are occasions where the lawyer will know what judge is sitting in which courtroom. Scheduling an event that places the defendant before that judge offers the defendant an opportunity for a resolution that the prosecutor might not like. However, where mandatory minimum sentences are involved the judge cannot help you.
How Can I Avoid Jail Time on a Child Pornography Case Without Taking the Risk of Going to Trial?
For the most part your lawyer is going to have to persuade the prosecutor that you never intended to distribute the material and that you never actively distributed the material. This is done by showing a lack of sophistication with computers and file sharing programs. This requires your lawyer to have extensive knowledge of how these programs work and to show how easy it is to download the material without knowing that your actions are permitting others to access your computer to view these materials. The way these images are found on your computer is pretty good evidence of your understanding of the workings of file sharing programs. For instance, will catalogued, indexed files shows a level of familiarity that suggests an intent to permit others to access your files. Whereas, a scattering of files, totally disorganized might indicate nothing more than an intent to possess only.
Hiring the right lawyer is the best way to protect yourself when charged with a serious crime. Call Law Offices of Stephen Neyman Criminal Lawyers at 617-263-6800 or send us an email. We know how to help you.