Last week we reported the arrest of a teacher on sex abuse charges at Miramonte Elementary School in Los Angeles. In a bizarre turn of events it became known over the weekend that a second teacher, Martin Springer, has been arrested at the same school, charged with groping two young children.

At first glance it might appear that the two cases are related. In fact one girl is alleged to be the victim of both teachers. It is certainly easy for the students of one teacher to talk to the students of another teacher. (The two classes took field trips together.) Kids have been known to plot together and to spread malicious gossip. There have certainly been incidents of false accusations against teachers accused of multiple cases of child abuse. But the authorities say there is no connection and the allegation are sufficiently dissimilar to raise doubt as to whether the kids got together to make up similar stories. Also the case against Mark Berndt is at least in part documented by video tape.

We will keep track of the story.

A former Los Angeles teacher was charged with committing lewd acts against 23 children ten years old or younger. His bail has been set at $23 million. Few former teachers who I know can make a $100,000 bail yet alone a $23 million bail. He is charged with horrendous crimes. It is alleged that he blindfolded the children and using his semen gave them a tasting test to determine whether the semen was sweet or salty. It is further alleged that he took pictures of children with their mouths gagged and other pictures with cockroaches walking on children’s faces.

A $500,000 bail would probably keep the man in jail prior to trial. The setting of bail has a two fold purpose. First to insure that a defendant shows up for trial and second to insure the safety of the community. Certainly this guy should not be released on his own recognizance. He is facing life in prison and he may try to leave the jurisdiction. If the allegations are true he is certainly a danger to society. But the setting of a $500,000 or a one million dollar bail will probably accomplish these goals as well at the setting of a $23 million bail. What a $23 million bail does is get publicity for the judge and the prosecutor and make them look like they are tough on crime.

To make this point let’s look at a time line:

1) Some time in 2010 Mark Berndt, a teacher at Los Angeles’ Miramonte Elementary School takes pictures of abused children into a photo shop to be developed. The employees at the photo shop turn the pictures over to the LA County Sheriff’s Department.

2) January 2011 Berndt is fired after teaching at the school for 31 years.

3) January 30. 2012 Berndt is arrested. Bail is set at $2.3 million.

4) February 1. 2012 Berndt is arraigned and a judge raised the bail to $23 million.

He was not arraigned until over a year after his crimes were reported to the police. He could have committed numerous crimes during that period yet when he is finally arraigned the judge sets a $23 million bail to keep him in jail and away from children. What about crimes he could have done while awaiting arrest.

While it is true that someone facing life in prison is a flight risk, Berndt knew about the pending arrest since at least January 2011 when he was fired. If he did not leave the city in the following year he is unlikely to leave the city pending trial.

If he was unable to put up the $2.3 million bail after he was arrested there is no reason to raise the bail ten fold except to get publicity.

The Fifth Circuit Court of Appeals reversed due to insufficient evidence that the defendant, Keith Moreland, knew that photographs of child pornography were located on his computer.

Keith’s wife Deana found an internet site with child pornography in the history of two computers that were kept in their living room and called the sheriff’s department.The only people with access to the computers were the Morelands and Keith’s terminally ill father, George. All users used the same password to log-on the the computers.

A police investigator found 112 picture which were possibly child pornography in the slack space (or orphan files) of the hard drive. These are files that have been deleted from the computer but are still available. The origin and the date of the download of files in the slack space are generally impossible to determine, Matthew Manley, a local police officer inspected the computers and testified about what he found. He was not offered as an expert in either computers or child pornography. He was unable to determine when the pictures were downloaded, where they were downloaded from or who downloaded them. Nor could he testify as whether the pictures were pornography or not.

The Fifth Circuit concluded

that the evidence was insufficient to support a finding beyond a reasonable doubt that Keith knowingly possessed the images in the computers because the evidence does not sufficiently demonstrate that a rational jury could find beyond a reasonable doubt that Keith had knowledge that the images were in the computers or that Keith had the requisite knowledge and ability to access them and to exercise dominion or control over them.

As a result the court reversed the conviction finding that there was insufficient evidence that Keith either knew that there was pornography on the computer or that he had the technical ability to retrieve the pictures. Both are necessary to convict one of possession of child pornography.

Robert Finn, the Roman Catholic Bishop of Kansas City Missouri, was indicted Friday on misdemeanor charges of failure to report child abuse by one of his priests. The priest, Rev. Shawn Ratigan was indicted in May. This is the first time an American bishop has been criminally charged with failure to comply with mandatory reporting requirements.

Most states have mandatory reporting requirements. While the laws vary from state to state they generally requires specific professionals to report suspected incidents of child abuse to the authorities. The Missouri law includes ministers in the list of professionals required to report suspected child abuse.

As a general rule citizens do not have a duty to report the occurrence of a crime. However states tend to require individuals who have a special relationship with particularly vulnerable groups such as children, the disabled or senior citizens. Thus teachers, medical personnel, social workers and others with knowledge of the physical abuse are required to report the abuse of their juvenile clients, patients, students, etc.

Finn and the Diocese of Kansas City-St. Joseph are accused of not reporting knowledge of a priest taking pornographic pictures of young girls. Finn has admitted knowing about Ratigan’s photographs as early as December 2010 but he did not report the information to the authorities until May. In that time Ratigan continued to attend church events and photographed at least one young girl.

Three years ago as part of a $10 million dollar settlement of child abuse claims by Kansas City Diocese, Flinn promised to report cases of suspected child abuse.

Randy Lee Johnson, Jr. was tried in Federal Court on charges of receiving and possessing child pornography. On appeal he claimed that convicting him on both counts violated the Double Jeopardy Clause. Furthermore, Johnson and the government agreed that in instructing the jury the judge erred as to the jurisdictional element of the receipt charge.. ¹ The Government agreed that Johnson could not be convicted of both receipt and possession of child pornography without violating the Double Jeopardy Clause. But if argued that there was suffient evidence to uphold the receipt charge.

The primary question before the court was which test to use in determining whether there is sufficient evidence when the trial court misinstructs the jury. When the sole claim before the trial court is whether there is sufficient evidence to support a conviction and there is no question regarding an incorrect instruction the test is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” But the Eighth Circuit ruled that when the jury is misinstructed it is necessary to have a stricter test. The proper test in such instances where there is no objection to the court’s erroneous instruction is either that “a conviction may be upheld against a sufficiency challenge where a rational jury could have found, beyond a reasonable doubt, each element of the offense as charged in the jury instructions.” or “the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational jury would have found that the government proved the statutory element.” In this case the first test is not applicable since the government’s evidence did not fit with the instruction as given.

Therefore the question was whether the court should use the “any rational trier of the fact test” as used when there is no question as to jury instruction and as urged by the government or the “overwhelming or incontrovertible test” as urged by Johnson. The Court chose the latter, finding that the Due Process Clause and the Sixth Amendment’s requirement if a jury trial mandate that the stricter test be used. Since there was some evidence that Johnson did not received the child pornography over the internet the court reversed the conviction on the receipt charge and remanded the case to the trial court.

Since only the possession of child pornography charge remains the Court did not consider the Double Jeopardy issue.

Texas District Court Judge Barbara Walther granted Warren Jeffs’ request to represent himself in his sexual assault trial. Before asking the court to let him represent himself, Jeffs fired his attorneys. This was the seventh set ofattrorneys he fired on the case.

The court must grant a motion to represent oneself, known as a Faretta Motion if the request is made knowingly and intelligently and if the defendant is competent. Competence is a very low standard and it is rare that a Faretta Motion is denied.

Jeffs’ Utah conviction for aiding and abetting the rape of another juvenile and for forcing her into a marriage with her cousin was reversed on appeal.

Yesterday afternoon after Walthers granted Jeff’s motion to represent himself and denied his motion for a continuance the trial began with the swearing in of the jury and the prosecutor’s opening address. Jeffs refused to give an opening address. In fact, he remained mute throughout the afternoon. He did not cross examine the prosecutor’s witnesses or make any objections.

Jeffs is the leader of the Fundamentalist Church of Jesus Christ of Latter-day Saints which broke away from the Mormon Church and believes in bigamy. He is charged with two counts of sexual assault and one count of bigamy in Texas resulting from the raid on the Yearning for Zion ranch near Eldorado, Texas in which 400 children were seized by Child Protective Services. ¹ The bigamy trial will occur later. The charges result from Jeff’s “spiritual marriages” to a 12 year old and to a 14 year old at the Yearning for Zion Ranch. The prosecutor will use DNA evidence to show that Jeffs had children by the two girls.

It is rarely a good move to represent oneself. A self represented client is held to the same standards as a represented client. The defendant is going up against a skilled prosecutor who is much more aware of the law than the non-legally trained defendant. The law requires that the judge inform the defendant of the possible problems involved in self representation. Often judges use the old saw that “one who represents him (or her) self has a fool for a client.

One who remains mute sure seems like a fool. Perhaps he is trying to prove that he is not competent and therefore set up an appeal. Only time will tell. Stay tuned.

The jury in the Casey Anthony trial unanimously found her not guilty of the murder of her daughter, Caylee. What does that mean. It does not mean that she is innocent. It merely means that none of the jurors felt that the prosecution had proved her guilt beyond a reasonable doubt. In fact every member of the jury could have believed that she killed her daughter. Alternatively they could have felt that they did not know who killed Caylee. It’s possible that some believed that Casey killed Caylee, but not by a beyond a reasonable doubt standard and others do not know who killed Caylee. Its obvious that the jurors don’t think very highly of Casey. After all they found her guilty of four counts of lying to a police officer. So its obvious that they don’t believe much of what she said. Luckily she did not testify at trial. And probably they did not believe much of what her lawyers said. They did not have much in the way of facts to back up the drowning story or the allegation that the postal employee moved the body.

But the jury did what it was supposed to do. It held the prosecutor to a beyond a reasonable doubt standard, And after eleven hours of deliberation it found that there was insufficient evidence to find Casey Anthony guilty beyond a reasonable doubt of the murder of her daughter.

No doubt many will be upset with the jury’s decision. Many (including this author) expected a different result. They ignored the discussion of chloroform which was a red herring with no relevance to the case. They looked at the evidence and decided that they could not find Anthony guilty beyond a reasonable doubt.

There is a long tradition in common law jurisdictions. We do not want to punish a person unless the the government can show beyond a reasonable doubt that the defendant is guilty. This is particularly true, in cases like that of Casey Anthony, when the defendant is facing the death penalty. Therefore it is particularly difficult to get a conviction when the only evidence is circumstantial and when the prosecution is unable to show either the method used to kill the victim or even the time when the victim died. Therefore the jury made the right decision.

Under Federal law it is not necessary to hold a hearing on motions to suppress evidence unless their is a factual dispute that can not be settled without a hearing. In U.S. v. D’Andrea the First Circuit Court of Appeals vacated a conviction and remanded the case to the trial court for the court’s denial of a motion to suppress without a hearing.

Kendra D’Andrea and Willie Jordan were charged with child abuse. D’Andrea accidentally sent photographs showing sexual abuse of her child to the mother of Jordan’s child in California instead of sending them to her boyfriend, Jordan. Apparently it was her practices to take sexually inappropriate pictures, post them on a limited access web page, and send them to Jordan.

When the mother of his child, identified as the “Tipster” in the appellate decision got the pictures she called the anonymous tip line run by the Massachusetts Department of Social Services (DSS). The Tipster helped DSS access the site and DSS agents provided copies of some of the pictures to the police. D’Andrea and Jordan were indicted and moved to suppress the evidence on Fourth Amendment grounds. The District Court denied the motion without a hearing.

The prosecutor put forth three reasons to justify the search. First, they claimed that since the Fourth Amendment only governs searches performed by governmental agents, the initial search by the Tipster was legal and nothing more was obtained by the Social Services search. ¹ Second, they claimed that exigent circumstances existed allowing the search. Third, they argued that the evidence would have been discovered whether or not DSS illegally searched the site and therefore the illegal search was immaterial.

The court found that there was insufficient evidence to support these theories and a hearing was necessary to determine if the Fourth Amendment was violated. As to the first claim it is necessary for the government to prove that the DSS search did not exceed the scope of the private scope. The record did not provide any evidence of whether or not the DSS search was more intrusive than the Tipster’s search. Therefore without an evidentiary hearing the private search doctrine does not justify the DSS search.

As to the second reason given by the government, exigent circumstances, their was no evidence of imminent danger to the child. There was no evidence that the abuse was continuing or that more would happen in the future.

As to the claim of inevitable discovery the appellate court also found insufficient evidence on the record to show that the government would have obtained the information without the illegal search. Therefore the court ordered the case remanded to the trial court for an evidentiary hearing on whether or not the search of the website was legal or whether, if it was not legal, the evidence would have been discovered in any case.

The University of New Hampshire’s Crimes Against Children Research Center released its Updated Trends in Child Maltreatment which continues to show a decrease in incidents involving children.

The study which covers the period 1990 to 2009 shows a two percent decrease in incidents between 2008 and 2009. There was a five per cent decrease in sexual abuse in 2009. While the percentage of physical abuse and neglect cases did not decrease in 2009, the percentage of physical abuse cases decreased by 55 per cent since 1990 and the number of neglect cases decreased by ten per cent in the same period. The number of sexual abuse cases decreased by 61 per cent since 1990.

The decrease in sexual abuse and physical abuse is attributed to increased public interest, improved economy, more law enforcement and child protective service workers, and aggressive prosecution and incarceration in the period when the decrease began. But if economic improvement is to be credited with a decrease in sexual and physical abuse one has to wonder why the number of incidents has not increased with the poor economy of the past couple of years.

A woman called the Albuquerque Police Department complaining that she heard a female neighbor yelling at a young child and beating the child in the neighbor’s back yard. She did not see anything due to a high fence.

Officer Debra Romero responded to the residence. Joseph Lundstrom answered the door. Lundstrom requested identification. Romero pointed to her badge. Romero ordered Lundstrom and his girlfriend, Jane Hibner to leave the house. Lundstrom asked why she was present and told her there was no child in the house. She pulled her gun. ¹ Hibner, the only other person in the house got between Lundstrom and Romero. Romero continued to point her gun at Hibner for a short while. Hibner left the house and was handcuffed by the officers. Lundstrom called 911 to assure himself of Romero’s identity. The operator assured him that Romero was an officer and asked him to exit the house. He did so with his hands raised He was handcuffed injured, and put in the police car. The police searched his house. No child was found. They were released without charges and sued for violations of the Fourth Amendment.

The police filed a motion for summary judgment which was granted and appealed. The defendants claimed that they had qualified immunity. Peace officers have qualified immunity against a civil rights suits unless the plaintiff can show that their constitutional rights were violated and that such rights were clear at the time of the incident. The Tenth Circuit has ruled that for a right to be clear it must be supported either by Tenth Circuit or U. S. Supreme Court precedent. In order to win the plaintiffs had to show that their constitutional rights were violated and that the state of the law was clear at the time of the incident. The Tenth Circuit ruled that the initial detention and the use of the gun was legal. While it was a search it was reasonable in light of the officer’s fear. Checking on the welfare of the child is part of the officers functions “community caretaking functions.” The officer pulled the gun in order to check on the item in Lundstrom’s hand which was a phone not a gun. But the court found that the handcuffing of Hibner, the surrounding of the house, the order for Lundstrom to exit the house, the handcuffing of Lundstrom were clear violations of the law supported by United States Supreme Court and Tenth Circuit precedents and therefore the claim of qualified immunity fails and the lower court decision was reversed. The Tenth Circuit relied upon the lack of probable cause to arrest them and the lack of reasonable suspicion to detain them. The original call said that a woman (and therefore not Lundstrom) was abusing the child. Prior to handcuffing Hibner the police had a chance to verify any suspicions by questioning her and they did not. Also they found no evidence that a child was in the house. When the original caller was told that there was not a child in the house she admitted that she may have been wrong about the location but the police continued to detain Lundstrom and Hibner.