The Public Defender Made Me Do It

From Pogo Was Right, the CBS outlet in Sacramento covers what has reached near urban legend status, the accidental downloading of kiddie porn resulting in a young man going to prison for years.

Matthew White, 22, said he was surfing for pornography two years ago on Limewire — a fire sharing application that allows users to trade music, movies, games and pictures — when he discovered that some of the files he had downloaded were images of children.

Matt claims he quickly erased the files.

“It didn’t appeal to me,” he said. “I was looking for women my age, so I just wanted to download ‘College Girls Gone Wild’ and accidentally downloaded underage pornography.”

It’s certainly not an outlandish story, and apparently supported by the allegation that when the police came to search his computer, they were unable to find any evidence of the child porn until they accessed long-deleted files.

About a year later, FBI agents showed up at his family’s home. The family agreed to let agents examine the computer, and at first, they couldn’t find anything.

Investigators later were able to recover the deleted images from deep within the hard drive.

“I asked them, ‘Where did you get that? I don’t remember that.’ I asked them, ‘Could I access that if I wanted to?'” Matt said. “They said no.”

A pretty good argument that this was, at worst, an accidental download, right?  But where it goes from here has me stymied.

Facing 20 years in prison for possessing child pornography, Matt is pleading guilty on the advice of his public defender in hopes of getting a three and a half year sentence. He will also serve 10 years probation and have to register as a sex offender for the rest of his life.

Matt’s father says other parents need to be warned about the consequences of stumbling across illicit material.

“One day, you’re going to get a knock on the door and have your child taken away for many years,” he said.

So why cop a plea to such an awful deal?  Why cop a plea at all?  Is this an example of a public defender pushing a client to plead out rather than fighting the accusation?  And given the appearance of his parent’s house in the news video, which appears to be a very nice middle class home, why is he represented by a public defender at all?

Maximum possible sentences are often used to coerce a plea, but it’s absurd to suggest that a 22 year old with no prior record, a plausible defense and only deleted images would get prison time.  The clear impression given by this news story is that he’s innocent but has no choice in the matter. 

The sub rosa suggestion of the story is that this kid is going to prison because he’s represented by a public defender, implicitly some crappy freebie lawyer. [Addendum: Note comment below.]  Indeed, the question posed at Pogo was:

Why is he pleading guilty and can’t some good lawyer volunteer to represent him pro bono?”
The answer to the first question is something of a mystery, and the best guess is either that the evidence is different than he describes it or that he’s following his lawyer’s advice.  But the second question misses the mark.  While 22 year old White may not have the funds for a lawyer, it clearly appears that his parents could provide him with whatever he needs.  At least there is no suggestion to the contrary.  That they have chosen not to do so is suggests that he’s either not so innocent or they don’t like their son very much.

It doesn’t fall to a good lawyer to defend White pro bono.  It’s not the lawyer’s job to pick up the slack when a parent doesn’t think his son is worth the effort, the risk, the burden of retaining the best possible counsel.  If a young man’s parents don’t believe that his freedom is worth their savings, or even a second mortgage on the home, why would the burden shift to a lawyer to defend him for free?  Lawyers aren’t the mommies and daddies of every accused, putting themselves on the line when the defendant’s parents are unwilling to extend themselves.

Whether Matthew White should spend a day in prison or not is a matter that can’t be discerned from this one-sided presentation, which certainly suggests that a three and a half year prison sentence is grossly excessive.  But if that’s so, and if he and his parents believe that he’s being coerced into a plea by a public defender, then they need only dust off their wallets and retain a lawyer in whom they repose greater trust. 

But to complain about the unfairness of it all, while doing nothing to change it, is disingenuous.  They have a choice, and they have only themselves to blame for not exercising it.  Don’t blame the public defender. Do something about it.

34 comments on “The Public Defender Made Me Do It

  1. Jeff Gamso

    On behalf of public defenders (full disclosure: I’m not a PD, but I do take some court-appointed work, and I was for a number of years a member of Ohio’s Public Defender Commission) I should note that they are as a class badly maligned. They include many of the finest, most passionate and capable lawyers in the country. And there are plenty of retained counsel who can’t hold a candle to them in ability or willingness to fight for the client, and who either can’t get or won’t expend the resources.

    I know far too many stories of people doing time because they fired the PD or appointed counsel and went and got themselves a “real lawyer.”

    I know you didn’t say otherwise.

  2. SHG

    Having made this same point many times over, I am in complete agreement.  I just wish it wasn’t necessary to repeat every time a PD is mentioned.

  3. Casey O'Brien

    It makes you wonder though. Why did agents choose this guy and this computer. The article suggests there was no warrant and thus, no probable cause, necessarily, but they were there for some reason. Sounds like there is a little more to this story.

  4. Guevera

    I’ll take a good PD over a bad private attorney. Biggest issue there, at least for the good PDs I’ve seen, is will the unconscionable resource constraints afflicting a PD prevent them from doing the job they can and should. Other big issue is that regular folks don’t have any way of telling who’s a good lawyer and who sucks. I covered cops and courts for about a year and a half for a newspaper before suddenly finding my sister in law facing a felony beef, and trying to find her representation was STILL partly an act of faith. It would have been a total crapshoot had I not spent months covering these guys.

    And btw, I now work for a competitor, and I would never take CBS13s version of the story as the truth. They’re getting better, but for a long time their chief virtue was that they made the rest of tv news look insightful and restrained.

  5. Dissent

    My surprise that lawyers hadn’t gotten involved pro bono is because I cover a number of computer search-related court cases on my blog, and the hard drive forensic and government surveillance aspects of this case are such that I thought the issues would appeal to a number of lawyers.

    There’s something weird about the FBI showing up a year after what is described by the defendant as a single accidental download. I’d really like to know why the PD recommended he plead guilty and whether the PD ever obtained an independent forensic examination of the hard drive — or if White’s family did.

  6. Mike

    I ran the docket report on PACER. Kid was indicted on 8/13/2009. Released OR. Plead guilty on 12/03/2009. No substantive motions filed. Four months of “work” for such a crappy deal?

  7. Mike

    Plea agreement states that the images were S&M (though that’s be irrelevant if accidentally downloaded). However, he copped to at least 150 images. Assuming the FBI found 150 images, and that this isn’t a fairy tale number…How does one accidentally download so many images?

    I haven’t used Limewire myself in years. So I just “focused grouped” this question: If someone told you that he accidentally downloaded 150 child porn images from Limewire, would you find that credible? Laughter.

  8. SHG

    A lot of cases come out of file sharing sites like Limewire, so that doesn’t surprise me. And they’re in no great rush to get to them, as they have more than they can handle.

  9. SHG

    Most of the issues you raise have been discussed here in great detail in the past.  As for CBS13, the story has way too many questions to be taken at face value, but offers a chance to make a specific point.

  10. SHG

    Aside from the fact that these cases are a dime a dozen, defending people who can afford counsel is what private lawyers are paid to do.  There is no reason I can imagine why any lawyer would take this case pro bono, or why he should.

  11. CrimeCounsel

    This is (unfortunately) one area I am regarded as expert back here in Blighty.

    15o images is next to none in the scheme of these sorts of offences. Limewire use can have you download many times more images in a single press of the button.

    By S&M I assume your commenter means Sado-Masochistic. If this is right, then it is this, rather than the number, which would begin to undermine the “deleted mistake” defence. In MY experience, those who give you “high level” images, do not do so for nothing.

    But the internet is a very dark place in its outer extremes, and I don’t see that even this would take away his defence absolutely. Surely more to this story?

    Going back to the Knox critique in the earlier post, whilst you find our “biased juries” so anathema to your theory of “justice” – we find the fact you sell justice to the highest bidder (ok, bit over the top, I should say determine who gets the best counsel on how much cash they have) at least as disturbing.

    Great work as always Scott… keep it coming

  12. CrimeCounsel

    Further, I should say that over here, all that you have described could be true, and he could still be guilty of the offence Making indecent images of children.

    Possession would not be plausible if he really could not retrieve the files himself. But when he first created the images on his screen, and the period before he deleted them, would make him guilty, IF he had previously used the same search and had returned to him illicit images of children.

    Here, the “deleted mistake” is a one use card. Once you are aware your search is likely to return such images, you are not seen to be acting mistakenly.

    And yes I did say making… having the image created on your screen, is making over here. Odd but true.

  13. Dissent

    Thanks for the info, Mike.

    I don’t use file-sharing, but could he have downloaded a single zipped archive with 150 images that he thought were all college girls but which he then discovered were kiddie porn? If so, he might still be telling the truth about one accidental download, although it’s seeming less likely.

  14. Mike

    Good question. I am ignorant, and thus don’t have an opinion. Indeed, I am in the process of forming an opinion through research.

    At the risk of a tongue lashing from SHG for linking to a post in his comments section, here is a Limewire Forum post claiming that it is indeed possible to accidentally download child porn:

  15. Dan

    Yeah, of course that’s theoretically possible. I suspect, in fact, that’s the most likely scenario – it seems like it’d be inconvenient to have to download a ton of small, individual files when you could download a zip file containing everything you need. That’s how filesharing services tend to work when it comes to, say, music, anyway.


  16. Mike

    As if I’d abuse the trust!

    It’s a discussion thread explaining how the user accidentally downloaded child porn. Others respond that his experience is not unusual. Based on his described method of downloading images from Limewire, it does seem plausible to accidentally download child porn.

  17. Turk

    And given the appearance of his parent’s house in the news video, which appears to be a very nice middle class home, is he represented by a public defender at all?

    And there are a lot of folks in “very nice”middle class homes who are underwater on their mortgage or heading into foreclosure.

  18. T. Mann

    I can only wonder how his down loaded images even came to the attention of anyone? Did he share his down loaded file?

  19. MyName

    Nothing here adds up. The justice system is this fucked up in Texas, but not in California.

    As already mentioned, his computer was being searched in depth for SOME reason. And I think you would have to be crazy to go with the public defender on this and plead guilty if you are innocent. The parents payed nothing for a lawyer, when any parents with an ounce of decency would give up everything they owned to save their innocent son from years in prison.

  20. James

    Maybe you can give us the docket number and we can all take a look?

    my email address is [email protected]

  21. SHG

    There’s a reason why these are called “comments” rather than “questions”.  While it’s commendable that you want to look deeper, it can be easily found on Pacer (just as Mike did it) with the defendant’s name if you’re inclined to look, without asking someone else to chew your food for you.

  22. Jameson Johnson

    Judge Neil Wake of the Arizona District Court recently ruled that images stored in cache files do not count for sentencing purposes. Attorney Anne Williams successfully argued that the cache images were not deliberately downloaded any more than a Netflix popup ad. Wake threw out almost 800 digital images, and considered only the 150 images that were printed out on paper. After the mitigation presentation, Wake sentenced the defendant to lifetime supervised release.


  23. James

    Well if you want to be like fine, I just don’t see why people would have to spend money to find the docket themselves if they can get it from someone else.

    Anyway, I decided to play with PACER and it says WHite is pleading guilty to 150 images of CP……Thats not the same story I read…or did I miss somthing?

  24. jdog

    Kind of an obligatory disclaimer, no? Except, not irrelevantly, many (most, maybe) of the folks who make it not only believe it but at least have some anecdotal experience to support it.

  25. SHG

    Tricks are for kids.  Bearing in mind that I write for my own amusement, there’s no reason to include every disclaimer since I already know this, and I’m already concerned about killing more than my fair share of words.  To the extent I think about something, chances are good that there’s a post somewhere in here on it. I hereby incorporate it all by reference.

    The problem arises from the new reader who assumes (and we all know about assumptions) that if I didn’t write it in the post he reads, I never wrote it and it never happened.  Whadda they want from me?  If you don’t like the way I run this place, don’t read it anymore and I’ll give them their money back. 

  26. Andrew Wilbur

    Matt is my mom’s boyfriend’s son (and that’s our house in the video, not Matt’s… assumptions can lead to distorted understandings!). I’ve looked at the FBI discovery materials in thorough detail and had innumerable conversations with Matt about what happened. Everything in the FBI docs basically supports Matt’s claim of innocence. The ‘150 images’ charge comes from the fact that the FBI counts each video as 75 images. The actual evidence found was something like 2 videos and 8 images. The location of the files on the hard drive were listed, and they were indeed buried deep in obscure corners of the hard drive. Also, the file names were deliberately deceptive – hundreds of characters long, with text like ‘8yoslut’ embedded somewhere in all the random characters. They were shared because Limewire automatically sets up a Shared folder when you install it, and recirculates downloaded material.

    The PD suggested right off the bat that Matt plead guilty, and essentially told him that he’d be fighting an impossible battle with any other plea. His actual plea offer was delayed to just a couple weeks ago, long after the CBS video was broadcast. We persevered and tried to get Matt a better lawyer. By the time an affordable was found, he obviously needed time to get all the case materials together. He asked the judge to push the plea date back, but the judge refused, leaving him with only three weeks to build a defense for Matt. He said that he couldn’t in good faith represent him with such little preparation, and in any case he had a court appointment on the day of Matt’s plea offer. It was back to the public defender then, who continued to pressure Matt into pleading guilty. Two weeks ago he did just that.

    Personally, I’d have fought it. I’d have done many things differently myself. But I live far away, have a very small income and am currently involved with the biggest work project of my life just now, so haven’t really had the resources to mount the kind of defense campaign that I would have liked to see. But if you’ve taken any interest in this case, you should know that he’s innocent. I wasn’t sure myself at first, but after hearing his story and checking all the evidence for myself, I am in absolutely no doubt whatsoever. The case against him was ridiculously weak. I think it could have even been thrown out on a technicality. For instance, in the FBI report, the computer serial number on the warrant didn’t even match the one on the evidence sheet.

    The public defender’s attitude was disgraceful, but it’s symptomatic of a broader condition. The FBI has a $100 million+ budget to capture and prosecute child porn offenders, and they’re clearly going after the ‘low-hanging fruit’, as one agent told the mother of a 19-year-old from our area who also went to jail for an accidental download via Limewire. Even if someone’s life gets ruined in the process, no matter – at least stats are good. That nobody’s fighting it is equally repellent.

  27. Russ

    Hello, I know this case is long over but I’m still curious, if this case was really weak then why did the federal agents proceed to arrest him a year after they found the images?? Why would the federal prosecutor go forward a year later after?? Most limewire cases I’ve seen on the fbi website, the feds usually show up at max 6 months later after the files are downloaded. I’ve never seen one case where they show up a year later until i read the cbs article. Their are still some things that don’t add up here with this story. And if he’s in jail now, why don’t his parents look for an experienced lawyer NOW to appeal his case?? Their is certainly a process for this and if what you say is true, this is definitely grounds for an appeal. Surely they don’t want their son to be labeled a sexually violent predator for the rest of his life, be restricted to where he can go, jobs he can have, etc, etc… surely an experienced attorney can prove his innocence.

Comments are closed.