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Pilot : Episode Summary and Legal Commentary (last updated October 21, 2003) (back to top)
Los Angeles District Attorney Michael Roame decides to investigate child-pornography websites frequented by suspects in missing-children (1) cases and traces one back to an adult-entertainment company owned by Lawrence Goldman Jr. Michael Roame has Goldman arrested during a fundraiser event at Goldman's home, but a judge quickly throws out the charges as too attenuated.
At the same time, unknown to either Roame or Goldman, Roame's son Adam and Lawrence Goldman's daughter Jewel are falling in love after meeting at a late-night party.
Michael Roame decides to continue with his efforts to bring down Lawrence Goldman. Instead of bringing an obscenity prosecution (2), Roame gets a wiretap (3) and learns that Goldman has a link to a drug dealer and may have laundered money for the drug dealer in the past. Roame then pressures Goldman into getting more evidence on the drug dealer, which Goldman does on the condition that Roame tells Adam to stay away from Jewel.
Roame manages to arrest the drug dealer, who promises to get revenge on Goldman and plans to give evidence to Roame. Roame and Goldman vow to get the other, even as Adam and Jewel continue to see each other and apparently have sex (4) at the episode's end.
A few legal points.
First of all, Michael Roame is not a very good district attorney. As the judge pointed out, he went overboard in bringing initial charges against Goldman and he needed more evidence that Goldman had a much closer connection to whatever someone else may have done. If Roame really wanted to get Goldman fairly, he would bring an obscenity prosecution against Goldman and let a jury decide if Goldman's videos are obscene. For more, go here.
Second, the wiretap never should have happened, especially one so broad as to cover a table where Goldman may happen to conduct some business. Roame should not have gotten a wiretap just to go on a fishing expedition into Goldman's activities, and a judge should not have allowed such a wiretap to happen. California Penal Code Section 629.50 and 629.52 requires a prosecutor to seek court approval for a wiretap; to get this approval, a prosecutor must explain the particular offense that he is investigating and must explain that conventional investigational techniques had failed or would be futile. For more, go here.
Third, Goldman's lawsuit against Roame in response to the murder charges will probably be thrown out because of prosecutorial immunity. California Government Code Section 821.6 generally immunizes public employees like Roame from such lawsuits, "even if he acts maliciously and without probable cause."
Sources: California's legislative code is on-line here.
Obscenity Prosecutions (last updated October 21, 2003) (back to top)
If District Attorney Michael Roame really wanted to get Lawrence Goldman Jr. fairly, he would bring an obscenity prosecution against Goldman and let a jury decide if Goldman's videos are criminally obscene. Federal and California state law prohibits certain acts involving obscene material, which is generally defined as material that :
- Would be found by the average person, applying contemporary community standards, to appeal to the prurient interest,
- Depicts or describes sexual conduct in a patently offensive way, and
- Lacks serious literary, artistic, political or scientific value, when taken as a whole.
Federal prosecutors prosecuted 205 obscenity cases from fiscal years 1992 to 2000, according to a Department of Justice review published in July 2001. Defendants pled guilty in most cases. Of those that went to trial, 13 were convicted and 7 were acquitted.
The U.S. Attorneys' Manual, which sets guidelines for federal prosecutors, does recommend prosecuting large-scale distributors of obscene material, especially when there is involvement by known organized crime figures. It states :
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Prosecution of large scale distributors of obscene material who realize substantial income from their multi-state operations also is encouraged. Prosecution priority should be given to cases in which there is evidence of involvement by known organized crime figures. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations. Therefore, prosecution of such distributors also may be appropriate on a case-by-case basis. |
Sources: Office of the Inspector General, Review of Child Pornography and Obscenity Crimes (Report Number I-2001-07, July 19, 2001) (on-line here.
Wiretapping (last updated October 21, 2003) (back to top)
A prosecutor cannot simply use wiretaps to go on a fishing expedition. Except in emergency situations, federal and state law-enforcement must get prior approval from a judge before conducting a wiretap operation. Under federal law, a judge may authorize an order if he or she determines there is probable cause for believing that:
- The target of a wiretap operation committed or is about to commit a crime,
- Communications concerning that crime will be obtained as a result of a wiretap, and
- "Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be dangerous."
California law, codified at California Penal Code Sections 629.50 to 629.98, is similar.
If granted, a court order authorizing a wiretap operation generally lasts no more than 30 days, though orders can be extended. After the expiration of the order and any extensions, recordings must be presented to the judge and within 90 days, the judge must provide notice to the targeted parties about the court order and whether communications were intercepted. If the targeted parties make a motion, a judge may in his discretion provide parts of the intercepted communications "as the judge determines to be in the interest of justice."
Although some public officials have focused on how wiretaps can fight terrorism, the vast majority of wiretapping and communications-intercepting operations target people allegedly involved in narcotics-related crimes. In 2002, about 78 percent of the court orders authorizing intercept operations involved narcotics-related crimes as the most serious offense, a dramatic increase in both number and share since the early 1990s. Only a small handful (less than 5 percent) of the orders in 2002 involved homicide or assault crimes.
In 2002, the most active federal intercept operation was in the Central District of California, where a 30-day investigation of a narcotics conspiracy resulted in an average of 677 interceptions a day. As for state operations, the most active was 60-day narcotics investigation in Duval County, Florida, which resulted in 342 intercepts a day.
In Los Angeles, judges approved 103 wiretaps in 2002, with about 80 percent being for narcotics offenses, nearly a fifth for homicides and assaults, and a few for financial-related crimes.
If a wiretapping or intercept operation commences without a warrant, it could violate the Fourth Amendment. Under the 1967 case of Katz v. United States, 389 U.S. 347, the government violates the Fourth Amendment whenever it transgresses a citizen's substantive manifestation of a privacy interest and when the privacy interest is one legitimately accepted by society.
The government does not need a warrant when it listens to a two-party conversation with the consent of one of the parties. It also does not need a warrant to get a list of the telephone numbers you call, as you voluntarily convey that information yourself to the telephone company and thus do not necessarily expect to keep those numbers private.
In May 2002, Attorney General John Ashcroft revised the Department of Justice's operational guidelines to make wiretapping more readily available as an investigative tool. The new guidelines do not change the legal requirements for getting authorization to conduct a wiretapping operation, but reduce the internal DOJ approvals previously required before applying to a court. Accordingly, agents can seek court approval more quickly and with less oversight from superiors.
In announcing these revised guidelines, Ashcroft said that they would help law-enforcement combat terrorism more efficiently and effectively. The American Civil Liberties Union, among others, criticized this argument because the revised guidelines effect operations beyond terrorism and because wiretaps are used primarily in non-terrorism situations.
Sources: The Administrative Office of the U.S. Courts makes annual reports on the wiretaps authorized by the federal and state courts, and the reports are available on-line here; the graph is based on information in Tables 3 and 7 of the 2001 report. Federal law concerning wiretap and intercept operations is codified in Chapter 119 of Title 18 of the US Code, which is available via Findlaw.com here. The Attorney General's new guidelines for the "lawful, warrantless monitoring of verbal communications" is available via the DOJ's Office of Legal Policy, on-line here. Attorney General John Ashcroft's May 30 speech announcing them is on-line here. The ACLU's May 30 press release criticizing the new FBI guidelines is on-line here. Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure (West Publishing, 5th edition, 1996).
The "Missing Children" Problem, including the Kidnapping of Children (last updated October 6, 2002) (back to top)
Despite intensive media coverage of particular incidents, the stereotypical kidnapping of a child by a stranger is a very rare instance, occurring only about 200-300 times a year, according to a 1990 federally-funded study that is still considered authoritative. Statistics going much higher for so-called "missing children" are usually the result of lumping in what the most authoritative federal study calls "extremely dissimilar social problems," such as runaways, abductions by non-custodial family members, and technical abductions such as violent crimes that involved moving a victim distances as little as 22 feet.
The problem of "missing children" first emerged as a political issue in the early 1980s after several unrelated incidents, such as the 1981 kidnapping and murder of Adam Walsh, the 9-year-old son of current television personality John Walsh. With attention on this new problem, many people threw around statistics that were not necessarily founded in hard data or that were not clearly defined.
Over time, some began to cast doubt on these statistics and raise questions about their basis in fact. The Denver Post, in a Pulitzer-Prize winning series, pointed out the "numbers gap" between such statistics and the number of investigations conducted by the FBI of children abducted by strangers. The FBI's investigative jurisdiction is limited to crimes that violate federal statutes or cross state lines, but even so, if there really were 50,000 children kidnapped by strangers a year, why was the FBI investigating less than 100 cases a year in the 1980s?
To help understand the controversy, the Department of Justice commissioned the National Incidence Study of Missing, Abducted, Runaway and Thrownaway Children (NISMART), which was released in 1990 and is still considered the best source of data on the "missing children" problem. Using a household telephone survey, a review of police records in 21 counties in 16 different states, and a new analysis of FBI data, the NISMART study broke down the "missing children" problem into specific categories and to make some estimates. The study also broke these estimates down into "broad scope" numbers for those situations that a family might be concerned about but which are often resolved quickly and without incident, and "policy-focal" numbers for more serious situations which might concern police and social-service agencies, and in which a child might be in danger.
- Stereotypical kidnappings (a.k.a. stranger abductions) (200-300 a year). This is what people usually think about when discussing "missing children." In these cases, the perpetrator was a stranger; the child was detained overnight, killed, or transported at least 50 miles; and the perpetrator either wanted ransom in exchange for child's return or expressed intention to keep child permanently. Compared to non-family abductions, the victims and perpetrators here are more likely to be Caucasian, the victims are less likely to have been lured away, and the victims are less likely to have been sexually assaulted.
- Legal-definition non-family abductions (3,200-4,600 successful abductions a year, with about 114,600 children experiencing an attempted non-family abduction a year). In these cases, the perpetrator was not a family member but was not necessarily a stranger; the child was moved at least 20 feet by use of force or threat; and the perpetrator concealed the child's whereabouts, requested ransom, or expressed an intention to keep child permanently. This category also includes instances where a non-family member took a child apparently to physically or sexually assault the child.
- Family abductions (354,100 "broad scope" a year, and 163,200 "policy focal"). Broad-scope family abductions occur when a family member takes a child in violation of a custody agreement, or keeps a child in violation of a custody agreement for at least one night. Policy-focal abductions also involve concealment of the child's whereabouts, transporting the child out-of-state, or indications that the abductor intends to keep the child permanently.
- Runaways (450,700 "broad scope" a year, and 133,500 "policy focal"). Broad-scope runaways are children who leave home without permission and stay away overnight, or who refuse to return home for at least one or two nights. Policy-focal children are those broad-scope runaways who are without a secure and familiar place to stay while away from home.
- Thrownaway children (127,100 "broad scope" a year, and 59,200 "policy focal"). A child is a broad-scope thrownaway if the child has been told to leave the household, has been away from home and a caretaker has refused to take the child back, if the child had run away and the caretaker made no efforts to locate the child or did not care if the child returned, or if the child had been abandoned or deserted. A child is a policy-focal thrownaway if the child was abandoned or if the child had no secure or familiar place to stay.
- Lost, injured or otherwise missing (438,200 "broad scope" a year, and 139,100 "policy focal" a year). Children in the broad-scope version of this category are those who were missing for a period of time (from a few minutes to overnight) for a variety of reasons. Those in the policy-focal version involved situations serious enough to warrant calling the police.
Breaking apart these statistics and not including any definitions can cause some confusion. For example, the National Center for Missing and Exploited Children's website as of September 2002 provides an arguably incomplete answer, at best, to the "frequently asked question" of "how many missing children are there." Explicitly citing to the NISMART, the NCMEC does not explain what "abduction" can mean, only uses the "broad scope" numbers, and leaves out the stereotypical kidnapping figure of 200-300 a year or any mention of the "policy-focal" numbers. A reader may be left with the impression that there are more "missing children" than the NISMART report itself would have indicated.
In fact, one of the NISMART's main authors has criticized how advocates have grouped "missing children" statistics together and how they have used anecdotal evidence of specific instances of stranger abductions to seek political change.
"It has been very tempting to use parents' fears about stranger abductions to galvanize politicians to protect children from other crimes and other threats, but it is a mistake to focus public policy concerning child victimization on the crime of stranger abduction. It is not just that the number of such crimes is relatively small but that abduction is not a particularly good category for organizing or counting the criminal victimization of children," David Finkelhor and others wrote in a June 1992 article. "The nature and seriousness of abductions are mostly determined by the nature and severity of the other crimes that are committed in their course, such as rape, assault, and murder. And in fact, these crime categories are better focal points for action on child victimization."
A recent study funded by the Department of Justice backed up the NISMART's conclusion that juvenile kidnapping is a relatively rare crime. According to that June 2000 report by the National Incident-Based Reporting System (NIBRS), kidnapping of juveniles made up only one-tenth of one percent of crimes against all individuals in 12 states in the survey, and only 1.5 percent of all violent crimes against juveniles. The report also concluded that the most common type of kidnapping was by a family member (49 percent), then by an acquaintance (27 percent), and finally by a stranger (24 percent).
Some advocates have occasionally pointed to statistics derived from other studies, but these statistics are not necessarily designed for the ways in which they are sometimes used and sometimes have limitations. For example :
- A National Center for Missing and Exploited Children study in 1986 estimated that there were about 30,000 stranger abductions of children a year. However, this estimation was made by extrapolating from the kidnapping rates in only two cities (Houston, Texas and Jacksonville, Florida) that had rates of serious violent crime at least twice that of the national average. The kidnapping statistics also did not distinguish between instances where victims were missing for less than 24 hours (which accounted for 97.6 percent of all cases studied) and those where they permanently disappeared.
- The National Crime Information Center annually tracks the number of missing-person cases reported to it each year; in 2001, there were 840,279 missing persons, and about 85-90 percent were children. However, unlike the NISMART, this statistic is not broken down into specific categories and it does not reflect how many cases were actual kidnappings that required investigation and which were, for example, runaways or family abductions. For example, in 1985, the NCIC entered 14,816 cases in its involuntary missing files, but the FBI only received 867 cases to investigate kidnapping, some of which involved adult victims.
Regardless of the magnitude of the problem, the "missing children" problem has rallied many efforts to help, though some solutions are not necessarily well-tailored to all the different aspects of the overall problem. One solution that has received much attention in recent years has been the implementation of "Amber Alert" programs that mobilize police forces in a region to locate abducted children. Named after a 9-year-old Texas girl who was kidnapped and murdered in 1996, the programs have been adopted in more than 15 states, but critics have said that overuse and non-selective use could dilute their effectiveness.
The overall issue has also been kept alive through the now-commonplace photographs on milk cartons, a practice which was started in 1984 by Midwest dairy-owner Walter Woodbury and which quickly become commonplace due to public and private efforts. Schools, private companies, and nonprofit organizations have also organized programs to fingerprint children to identify them if they ever disappear and are recovered.
Sources: Martin L. Forst & Martha-Elia Blomquist, Missing Children : Rhetoric and Reality (Lexington Books, 1991). Joel Best, Threatened Children : Rhetoric and concern about child-victims (University of Chicago Press, 1990). Nancy L. Asdigian, David Finkelhor, and Gerald Hotaling, Varieties of Nonfamily Abduction of Children and Adolescents, Criminal Justice and Behavior (Volume 22, Number 3, September 1995). David Finkelhor, Gerald Hotaling, and Nancy Asdigian, Attempted Non-Family Abductions, Child Welfare (Volume 74, Number 5, September-October 1995). Eugene M. Lewit and Linda Schuurmann Baker, Missing Children, Children and Managed Care (Volume 8, Number 2, Spring 1998) (available on-line via The Future of Children here. David Finkelhor and Richard Ormrod, Kidnapping of Children: Patterns from NIBRS (June 2000), available via the Department of Justice's Office of Juvenile Justice and Delinquency Prevention, on-line here. The National Center for Missing and Exploited Children is on-line here. Information on Amber Alerts is on-line here and here.
Teenage Sexuality: Activity (last updated January 11, 2002) (back to top)
About half of all never-married teenagers aged 15-19 years old had had sexual intercourse at least once in 1995. According to surveys, the percentage of male teenagers who are sexually experienced has fluctuated around 70 percent, whereas the percentage of female teenagers who are sexually experienced has risen from about 30 percent in 1971 to about 50 percent in the 1990s.
About 35 percent of male teenagers and about 32 percent of female teenagers in 1995 had had sexual intercourse by the time they reach age 16. About 83 percent of males and about 70 percent of females had had sexual intercourse by the time they reach age 19.
White male and female teenagers seem to have sexual intercourse for the first time more often between age 16 and 19. About 28 percent of white male teenagers in 1995 had had sexual intercourse by 16, and 86 percent by age 19. About 28 percent of white female teenagers in 1995 had had sexual intercourse by age 16, and 69.4 percent by age 19.
On the other hand, black male and female teenagers seem to have sexual intercourse for the first time more often before reaching age 16. About 64 percent of black male teenagers in 1995 had had sexual intercourse by 16, and 94 percent by age 19. About 48 percent of black female teenagers in 1995 had had sexual intercourse by age 16, and 74 percent by age 19.
Sources: National Survey of Family Growth, Sexual Activity and Contraceptive Practices Among Teenagers in the United States, 1988 and 1995 (data taken from Table 2, document available on-line via here).
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