Squeezing Every Last Penny Out of Amy

The story of Amy has been beaten to death,  both  here and by her advocates, to the point where even the Department of Justice has said “enough.”  Amy, who suffered horribly as the child in the “Misty” child porn series, deserves compensation for what was done to her. No doubt about it.  But the government has come to recognize that every person who ever viewed a Misty video shouldn’t have millions in restitution imposed as a matter of law.

But what about poor Amy, says James Marsh?  Marsh, as it happens, is her lawyer.  So he’s gone to Change.org to start a petition, the content of which is worth reproducing in full:

During the past two years, victims of child pornography (represented by the Marsh Law Firm and pioneering attorneys Paul G. Cassell and Carol L. Hepburn ) have been seeking restitution in federal courts throughout the country.

Using a long forgotten passage in the Violence Against Women Act championed by then-Senator Joe Biden in 1994, child sex abuse victims are asking federal judges to award the mandatory restitution guaranteed by this law.

Unfortunately, the Justice Department has abandoned victims of child pornography on appeal by advancing a legal standard which the courts consider unworkable. The Justice Department’s position is effectively preventing hundreds of child victims from receiving any money from the tens of thousands of child molesters and pedophiles who collect and trade child sex abuse images.

In October, the Justice Department filed a Supreme Court brief opposing child exploitation victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals–at the Justice Department’s urging–decided to reconsider a landmark decision in favor of victims of child pornography. The Justice Department has one more chance to do the right thing and support victims of child exploitation.

Please tell President Obama’s political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year’s oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

“What I don’t understand is why the government has switched sides. They were on Amy’s side in the trial court, were they not? I’m not sure how they can switch sides now and say that the statute doesn’t entitle her to relief. That seems ver–if not duplicitous–very strange to me. And it’s also in derogation of the obvious intent of that provision of the statute.”

Amy and child victims like her need your help. Hundreds of victims are effectively shut-out of the federal courts by the Justice Department’s wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised child victims that they would receive full restitution from criminals convicted of child exploitation. Ironically, Vice President Biden’s own Justice Department is failing to live up to his vision in the Violence Against Women’s Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

Rarely has such a flagrant attempt to manipulate public opinion with outrageously deceptive allegations and arguments been attempted.  And the comments to the petition reflect this pandering to ignorance.

Why People Are Signing

I do hope that DOJ will support the right of child victims to restitution.

Because they should get restitution. The children had gone through enough.


Children need us to protect them!

This seems to be the most important piece of legislation to do the right thing, the victim.

While there’s little chance that these comments will persuade anyone who has even a basic grasp of the issues and problems, who could possibly be so disgusting and disgraceful as to stand up against those who contend that they do it all for the children.

This attempt to pervert the system isn’t merely ethically and intellectually outrageous, but yet another attempt to abuse Amy for the benefit of lawyers and an agenda.  Must Amy be perpetually used as a pawn?  I’m with Lanny Breuer on this one, enough is enough.

But more importantly, the emptiness of the victims rights advocates could not be more flagrant than this disgraceful attempt to manipulate public opinion.  Will Marsh and his ilk not be satisfied until they squeeze every last penny for their client, no matter how many lies they need to tell in the process?  Because it’s not like Marsh works for free.

H/T Anna Durbin

20 thoughts on “Squeezing Every Last Penny Out of Amy

  1. David Sugerman

    I don’t know any of the players. Nor do I know the case. I do know first hand about representing survivors of child sex abuse in civil litigation. It is the toughest and most disconcerting work I have ever done.

    All that is by way of background for my take. Yeah, Marsh’s tactics may offend your sensibilities. And yes he likely gets paid well when and if he succeeds. Even so, demonizing him is way off the mark.

    The few child sex abuse cases I have done inevitably create an existential crisis because compensatory or monetary justice provides thin assistance to the broken kid. Prevention is a far better fit. But doing so in a way that honors constitutional rights is an awfully difficult task. So threat of financial ruin and public shaming become rational tools for those of us charged with picking up the pieces and repairing the damage.

    So yeah, your criticisms of restitution have some traction. But don’t trivialize the motivations of those who advocate for the broken kids.

    That said, Marsh’s ham-handed petition is a bad idea. But I imagine it springs from unchecked zeal, as opposed to crass motivations

  2. SHG

    Had you only clicked on some of the links so that you would understand the Amy series of decisions, you might have understood the problem better. Amy has been used, by the scum who made the videos and now by the victims rights activists who have obtained millions in restitution from defendant after defendant. 

    This isn’t about suing civilly for damages. This is about using criminal restitution for the full claim of damages again every defendant who has watched the Misty video. Over and over, they demand full restitution. Not from the scum who did this to Amy, but from anyone who has seen a video of her, under the theory that if it was not for people watching, no one would create kiddie porn.  Over and over, millions and millions, all in the name of Amy.

  3. David Sugerman

    I read the links the first time through and was impressed with your criticism of restitution, to a point. I don’t have a problem with end users of child porn facing restitution.

    Your point that seeking it over and over again is at odds with “restitution” is correct. Mine, which you seem to miss, is that overzealousness is less likely to be about survivor atty profit than a perception that it is a good means of prevention of future harm. I suppose you will view my take on advocates’ motivations as hopelessly naive, while I see yours as unduly cynical.

  4. SHG

    I see yours as confusing civil damages with criminal punishment.  Restitution as an element of sentence isn’t a fair game, but piling on.  The defendant will be sentenced to prison for his crime.  The judge will, based upon the conviction, impose restitution because the law requires it be done, on top of imprisonment.  The survivor attorney profit comes as a by-product of the federal prosecution.  So you think that imprisonment isn’t enough of a motivation? 

    Mind you, an element of imprisonment is deterrence, but restitution isn’t imposed as a deterrent but as restitution, yet you approve of it because it’s yet another deterrent.  Clearly, it’s complete crap as far as any legit argument for restitution is concerned. If restitution is appropriate at $100, that doesn’t justify $100 restitution times 10,000 people.

    Marsh isn’t arguing for the right to sue, but the right to free-ride on the coattails of the United States Attorney, and pile on multiplitious restitution on top of imprisonment. It doesn’t strike me as cynical at all, but then where does proportionality come in? Is there any point where it’s enough?  I’m not suggesting that what happens to these children isn’t horrible, but your position suggests it would be really useful for prevention if we just put them all to death and took their estates as well.

    I realize that you empathize with many of these concerns when it comes to other aspects of criminal law, but you can’t turn a blind eye when it touches on an area where your passions are more easily inflamed.  I hate kiddie porn. But I don’t lose sight of the same concerns that attach to every criminal prosecution just because I despise the crime.

  5. David Sugerman

    You’re confusing categories and reducing my arguments to the absurd. But you do it right good, which amuses me to no end.

    The process of riding coattails is inevitable. Same result when I use the preclusive effect of a criminal conviction in a follow-on civil case. Doesn’t happen often, but it happens.

    I agree with your issue of proportionality to a point. Restitution needs to be rationally related to the harm. But that doesn’t mean that the consequences of a miscreant’s conduct should be limited to prison term, as there is still the matter of compensating the victim.

    I went down this rabbit hole only in defense of the motivation of someone who has concededly overreached. My point about prevention isn’t that it means execute and defease the pervs. Rather, it’s about the mind-numbing inefficacy of compensation/restitution to fix the profound harm inflicted on kids.

    Having seen those limits from my side of the trenches, I welcome any rational method that arrests the process before the kid gets trashed.

  6. SHG

    If an argument can’t bear scrutiny when taken to its logical extreme, then it fails. You may believe the sentence imposed to be inadequate to serve as a deterrent, but that’s the purpose of sentence. It’s not the purpose of restitution. If restitution can’t bear scrutiny as restitution, which you seem to concede it can’t, then it’s improper. While you may like it because you despise the crime so much that you applaud additional punishment, that doesn’t legitimize restitution as a form of additional punishment and deterrence. It’s just piling on.

    And it just happens that there’s more money in it for the lawyer.  As for the “mind-numbing inefficacy of compensation/restitution to fix the profound harm inflicted on kids,” clearly you aren’t talking about Amy. 

    I really do appreciate your concern about ending this blight, which is why it goes to reductio ad absurdum, since anything that results in greater deterrence is good, and the more the better. Where does it end?  If restitution isn’t limited to restitution, but to additional deterrence, then there is no amount that doesn’t further that purpose, and it never ends.

  7. Alex Bunin

    Here is what Marsh wants. He wants $4M from each and every defendant whose computer had an image of Amy on it, whether they ever viewed it or knew it was there. He can hypothetically get and enforce a judgement against each of them since (as the Administrative Office of the U.S. Courts pointed out), there is no mechanism to coordinate this kind of joint and several liability across 94 districts. Although the vast majority of the defendants are indigent and cannot pay a dime, the effect of such a judgement will follow them for many years, if not the rest of there lives. Other than write public relations pieces, Marsh need barely practice law for these windfalls, because Assistants United States Attorneys do all the work. If Amy’s actual abusers were being sued, and Marsh was doing the work, there would be few complaining.

  8. SHG

    Exactly.  But I wouldn’t take for granted that many don’t have significant assets. This is possession of child porn, and many are otherwise homeowning, working (up to the time of arrest), 401k owning men. They have families, children of their own, who rely on their earnings, savings and assets. These aren’t junkies with nothing, but your next door neighbor in the cute little house with the flower box. 

  9. David Sugerman

    Best not to concede Alex’s claim that the defendants can’t afford multi-million dollar restitution awards. If he is right, the critique collapses because plaintiffs lawyers only get paid when we recover money.

    Seems to me that your better critique focuses on your original point of proportionality. Further, it seems like the courts and DOJ are mostly getting that. Where you lose me is in demonizing the survivors’ lawyer (who as I said before, I know nothing about.) The other piece you miss or avoid is the toll on the survivors.

    I’ve seen some survivors do great, while many never get their lives back. I realize this is not your professional concern. That is not to suggest you lack compassion or the ability to appreciate the gravity of the harm–you clearly get that. What seems whack to me is the contempt for Marsh and, by extension, those of us who advocate for broken kids in the civil justice system.

    Interesting post. Thanks for the intelligent back and forth.

  10. SHG

    Funny thing is, I no more extend Marsh’s antics to what you do than I connect real restitution to what Marsh (and Cassell) seek. And even if Alex is right, enough defendants and enough millions will produces huge fees with minimal work. The only question is how huge.

  11. Alex Bunin

    Oh, there are enough deep pockets to make it worth his interest. There is simply no connection between those with money and Amy’s injuries.

  12. David Sugerman

    Seriously? No connection? There are clearly connections, as the purchasers and users of kid porn are driving a market. Apart from that generalized market injury, there is an injury every time video is played showing that kid being abused. That you don’t understand that or can’t see the injury inherent in broadcast suggests that you do not understand basic concepts relating to privacy, reputation and psychological injury.

    Kind of pathetic that you are so intent on making a very tough and complex issue so simplistic. Not to mention so wrong.

  13. Mike

    The issue isn’t that complex. Restitution is a basic principle of contract law, and has been around for thousands of years.

    Restitution is intended to *restore* the victim to her rightful position. It’s also supposed to prevent the defendant from keeping money or property unjustly obtained.

    If “Amy” needed therapy (to restore her to the positon she would have been sans the abuse), it’d make sense to require the people who watched the films to pay her bills. It also makes sense to require people who profit form child abuse to surrender their profits.

    But that’s not what is happening here.

  14. Erika

    The problem is that while there is an injury it has nothing to do with what Marsh is seeking compensation for “Amy” – “Amy” is seeking compensation for the full amount of damages for the original abuse and filming/distribution of the same from people who merely possess her image. The injury that the defendants in these cases caused is possessing an unauthorized copy of the original image – hence, it has little connection with the original abuse.

    And in fact, it is nonsensical to try to pretend that the damages between copy 1 – which is to say the original abuse and creation of the image – and copy 10,001 is identical. Under the theory that Marsh is using, the difference in trauma to “Amy” between copy 10,000 and 10,001 is likely close to zero. Yet, they are trying to claim that the mere possessor of image 10,001 is equally cuplable for damages for the abuse as the creator of image 1. That is simple nonsense – and it is no wonder that most courts have rejected their theory. The connection between image 10,001 and the original abuse is so tenuous that under the theory that Marsh is pushing the proper level of damages should be set at nominal damages.

    Now there is a damage there – but its the damage which runs from “invasion of privacy” torts rather than that of the original abuse. The best legal comparison is really to copyright infringement. Because the actual harm from one illegal copy of a popular work of art is minisule, copyright law allows for statutory damages. If Marsh really wanted to serve his client’s interest and not line his pocketbook, he would advocate that Congress create statutory damages for such cases. Such compensation would be paid directly into a government fund for the victims of child pronography and compensation would be paid directly by the government which would eliminate the need for notice and appearance in any cases. Such compensation would also be fairly distributed among all victims of child pronography and not just ones like “Amy” who are willing to be used as pawns of the “victim’s right” movement for money.

    Now Marsh and the other victim’s rights advocates aren’t advocating for such a statutory compensatory system which has precedent in other legal schemes and is based on long standing principles of tort law. That should tell you all you need to know about the motives.

    And SHG is right – “Amy” is being victimized by her lawyers because they are putting their interest in front of their client. There is a blatant conflict of interest here – the lawyer’s interest is to generate cases – the victim’s interest is to receive compensation for her damages in a way which minimizes additional damage.

  15. David Sugerman

    Nice try, but seriously off the mark. The problem with your copyright analogy with statutory damages is that you are collapsing and confusing two very different concepts.

    Statutory damages exist because a legislature or Congress have created a statutory right and a benchmark. Most statutory damage rights set boundaries. For example in consume law, it is common for state statutes to award the greater of actual damages or $200, or something similar.

    But the bigger offense in your thinking is equating property misappropriation with the intensely personal and psychic harm caused to the survivor of child sex abuse. Which is part of why statutory damages is a poor fit. But your next thought–Congressional legislation for statutory damages is even worse. Seriously? You want Congress to set damages? The same body that handles sentencing guidelines? Right.

    The nature of the injury is much more akin to a problem of defamation. At common law, liability attached with the original publication and all republications. Purchasers/viewers are causing additional harm by using child pornography. Maybe this isn’t apparent but survivors are re-victimized by continuing use of the videos of their horrors.

    Your last (and most laughable) point is that there is a conflict of interest between counsel for “Amy” and their client. That starts with the untested general assertion that counsel is putting his interests ahead of the client. And you know that how? Apart from that, your view of professional responsibility is odd at best. We advocate for clients. You think he is not doing so? Really?

    I get that many CDL’s generally distrust and dislike victims rights advocates, and I get that Marsh’s arguments are flawed. I share many of the same opinions. But the rush to condemn Marsh, trivialize the injuries and minimize the conduct of those who create a market for kiddie porn is wrongheaded.

  16. SHG

    Getting a bit testy, David? 

    But the bigger offense in your thinking is equating property misappropriation with the intensely personal and psychic harm caused to the survivor of child sex abuse.

    So the concept of damages/loss and restitution that otherwise applies to all of law is different when it comes to Amy because of the excessive use of adjectives? No one is saying that what happened to her (and all the other children similarly abused) isn’t horrible, but why do you put others in the position of having to challenge your impassioned but hardly lawyerly plea?  Yes, it’s horrible. No, we don’t close our eyes as tight as we can, scream “lalalalala” and pretend that the rules for restitution no longer apply.

    Your last (and most laughable) point is that there is a conflict of interest between counsel for “Amy” and their client.

    Laughable?  You call it that, and then fail to offer any reason. Your argument is that her position is “untested” and therefore she can’t know it. And that makes something “laughable”?  Well, it does, but not what you think. Nothing is proven by rhetorical questions, so it would be best not to hammer too hard on the laughable thing. Really.

  17. David Sugerman

    Not just testy. Also time pressed. Guilty.

    The point about property injury vs personal/psychic injury is that damages in the first are tied to economic harms, while damages in the latter are not. So statutory damages are a good method of reckoning when we are talking about purely economic harm or damage to property. Not very good when talking about damages to the person.

    This isn’t so much about what adjectives are used or the horrors inflicted. It does reflect a bias I have toward prioritizing damages to the person over damages to property. I doubt I am alone in this bias.

    The concepts of restitution and damages apply equally to property and person. They generally look to the degree of harm. That is why I think your original criticism is well-taken. But what seems amiss in all who are on the other side is that there is additional injury by re-use of the video. Seems like no one is willing to acknowledge that. To be sure, causation, the nature and extent of harm and how to value the harms are classic jury questions in civil trials. That being so, the brushing off–she couldn’t possibly be injured beyond the original abuse–is hard for me to fathom.

    The point about ethical duties is that the heavy-handed judgment turns on unknowable facts, as we do not know the client, the attorney or the interests.

    As a general matter, the civil justice attorney’s duty to the client is in fact to maximize the client’s recovery in a way that is consistent with other rules of professional conduct. There are exceptions, including when a client–with capacity, fully informed, etc.–instructs us to put public interest ahead of personal gain. We do not know anything about communication between client and attorney. I do not know anything about “Amy” and her capacity. But assuming she is a minor, the survivor advocate who is trying to get her more money is invariably complying with rules of professional responsibility, assuming that counsel is not otherwise violating applicable rules. Some may not think that is a good standard, but to confuse the lower standards of professional responsibility with sound law and policy is wrongheaded.

    The “laughabilty” is that this type irresponsible bomb is commonly lobbed at injury lawyers by corporate apologists. As CDL’s get many bombs, too, I presumed the audience was a bit more sophisticated. My bad for unhelpful rhetorical shorthand.

    I remain your ever your humble servant. Signed, Mister Testy.

  18. Erika

    I believe that the problem that you ignore is the issue of causation and that restitution only covers provable compensatory damages caused by the defendant’s crime. That is almost impossible to establish in a mere possession case several years after the initial creation of the image – and that is precisely why in copyright cases (which is to my knowledge the only legal theory which allows for compensatory damages for mere possession) statutory damages are available.

    And yes, i do believe that Marsh is not serving his client’s interest. Are you familiar with Admiralty? If so than you can see that Marsh is effectively trying ot argue that Admiralty should apply to Amy’s claim by arguing a restritution theory which can only collect provable compensatory damages. And further you’d know that a plaintiff never wants Admiralty jurisdiction to apply.

    I also think you misunderstand my argument in connection with copyright – my idea of using copyright is precisely to remove the issue of proving that an individual defendant caused damage – instead, it acknowledges that there is generalized harm from the distribution of the image, but proving any degree of harm from one specific possessor is impossible. By setting a set amount of compensation paid into a Child Pornography Victim’s Compensation Fund “Amy” and other victims would be able to receive compensation without having to constantly appear in cases.

    Of course, then Marsh would not be able to collect attorney’s fees.

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