Disturbing trend?

NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009).

CAAFLog, 28 May 2009.

AFCCA today issued a fascinating published opinion, which I’ve posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel. Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.

CAAFLog, 29 May 2009.

Both of these cases were guilty pleas. I would assume that the results in both cases were a surprise to the trial counsel involved in the cases, and judging by the rhetoric and vitriol in the CAAFLog comments section, it was a surprise and disturbing trend (?) to the appellate literati, loungers, and incorrigibles who habituate CAAFLog.

I think the trial counsel could have done something to avoid the result in Craig, but not in Nerad. It strikes me that the trial counsel may have done the usual and cruised through the case being there just along for the ride. In Craig, the accused had CP in his Limewire shared files which were therefore accessible to others. Craig deliberately kept CP in those shared files and obviously knew the potential for distribution. (Note, the default settings in Limewire set-up automatically to distribute CP from the shared files folder.) A wise user of Limewire (I don’t have it and won’t) should alter the default settings to avoid unintentional receipt of CP as well as unintentional distribution of your private data. The question for me in Craig is how did they get on to him having CP? I’m going to guess, because it suits my teaching point, that information came from the FBI, FairPlay, or one of the other law enforcement groups surfing Limewire accounts. They pinged on Craig’s computer and got hits for potential CP. If they did as usual they would have looked at several images to confirm they were CP — BINGO! — he just distributed. Whether he meant to or not is a different question. Who cares it was the police; status of the receiver isn’t relevant. That’s what the trial counsel potentially missed in Craig – or at least that’s my guess. If the trial counsel had put something about the manner in which Craig was caught – again assuming my fact pattern – into the stipulation or into evidence, maybe the plea would not have been bounced?

I don’t see how the trial counsel could have avoided the result in Nerad.

So, a disturbing trend or not. Two guilty plea CP cases reversed. I think not a trend. Craig was a reasonable application of the rules on providency and the quality and quantity of evidence or admissions necessary to find a plea provident. Nerad is a different and more difficult question. Even though I’m in agreement with the result, I can’t see how the court got there without some judicial lawmaking. I just would like to see Congress do it rather than the court.