Jeffrey Harrison, a San Francisco lawyer who killed himself with child-porn charges pending, was interviewed about his telecom s
 

Defendants who keep child pornography on their computers make tempting — and relatively easy — targets for federal prosecutors.

Few offenders elicit so little sympathy from all frequencies of the political spectrum. The cases are incredibly difficult to fight, according to defense lawyers: So long as the feds lawfully search the computer, stiff mandatory minimum sentences reduce plea bargaining leverage to nil.

The Justice Department has escalated its efforts since announcing Project Safe Childhood in 2006, filing 27 percent more indictments last year. Now, the psychological weight of child porn prosecutions — for family members, lawyers, judges and defendants themselves — is beginning to emerge.

In the Northern District of California alone, four child porn targets have committed suicide over the past nine months, according to government court filings in two separate cases. One additional defendant tried to kill himself in February, court records indicate.

"I'm not surprised the numbers are up, frankly," said San Francisco solo Miranda Kane, a former federal prosecutor who litigated and supervised child pornography cases for the government. "It's a devastating thing to be exposed, and you're publicly shamed. We would go to great effort to keep the victims' names out, but defendants' names are right there in the [San Francisco] Chronicle all the time."

The suicides are a pressing issue for magistrate judges, who must decide whether to remand defendants once they are arraigned. They add emotional baggage for defense lawyers, who already may not be enthusiastic about the subject matter they must delve into.

Prosecutors have been trying to share as much information about the suicides with judges as possible, U.S. Attorney Joseph Russoniello said. Ultimately, he said, the courts must craft a solution.

"It's not our objective to destroy human lives," Russoniello said, "but it is our obligation to protect the most vulnerable in our society from exploitation."

Finally, the suicides present an overlay of grief for the defendants' family members, who already grapple with feelings of disbelief and betrayal following an indictment.

FOUR DEFENDANTS

Jeffrey Benjamin Harrison appeared gregarious to friends and family, always full of energy.

"He was a guy who lived large. He made and lost millions of dollars," said longtime law partner William DeGarmo. The two Bay Area plaintiff lawyers worked asbestos torts together, followed by railroad hearing loss litigation, followed by a tech startup. "When I first knew him, he said, 'You know, I pay off my house twice a year, and I borrow against it twice a year to make payroll.'"

Harrison also loved women, DeGarmo said, and "as long as I knew him he had at least a couple." But on his return last summer from a business trip to the Philippines, where his latest telecom startup had an office, customs officials at San Francisco airport discovered hundreds of images involving young girls on Harrison's laptop, court records indicate. The feds filed charges two days later.

Chief Magistrate Judge James Larson released Harrison on $200,000 bond. And his family — including his wife — rallied around him, DeGarmo said. But his few days in Santa Rita Jail left him shaken, DeGarmo said, and the seriousness of his legal situation soon became evident.

With the court mulling a bail revocation, Harrison drove his blue Jaguar into Golden Gate Park on March 20, and shot himself.

In February, a grand jury indicted George Wayne Halldin for possession, receipt and distribution of child pornography. On April 4, Halldin set fire to a building he owned in San Jose and perished in the blaze.

That month, when the Justice Department indicted Paul Hirsohn after an airport search of his laptop, prosecutors didn't want a repeat.

"Four defendants facing child pornography allegations have committed suicide in the past few months, and one additional defendant has attempted suicide," Assistant U.S. Attorney Tarek Helou wrote, in urging Larson to remand Hirsohn. "This court should release the defendant only if it determines that he does not pose a risk to himself."

But Larson didn't buy the prosecutor's argument, according to Robert Beles, Hirsohn's lawyer. "He was concerned that would be true of every case of child porn that came before him, and that would be an irrational way to discuss detention: 'Other people committed suicide, so we have to keep you in custody for your own protection,'" Beles said. "He looked for some assurances, that a therapist had seen the person involved, and that the person would be able to cope with the social humiliation with this sort of crime."

Hirsohn's case is pending. Larson would not discuss individual prosecutions, but he acknowledged the suicides.

"It's definitely a concern, a serious concern among magistrate judges. We've taken steps to initiate discussions with the pretrial services office and other magistrate judges, and the probation office," Larson said, "to develop a process for screening these cases when they first come in, to determine whether there should be immediate referral to mental health counseling and any consequential testing at the outset, as a condition of release."

Feelings of shame are magnified for child porn defendants, said Pat McAndrews, a San Jose therapist who treats sex offenders.

"What happens is, oftentimes people who are really locked into an addictive use of child pornography really disassociate themselves from it. They're in denial about it. They don't integrate it into who they are," McAndrews said. "So when this surfaces, it truly is more of a shock than what might be in other situations. That's part of the problem: They're not really in touch with what they're doing."

INDEFENSIBLE IMAGES

When first meeting clients accused of possessing child porn, several defense attorneys say, they immediately try to refer them to counseling. But the lawyering, they say, is grim.

The overall subject matter is extremely disturbing. In a recent sentencing proceeding involving defendant Daniel Hickey, for instance, the government described images found on his computer.

"A female child, approximately 3-4 years old, is having a male penis forced in her mouth," the government wrote in a filing. "The child is crying."

Such material rattles lawyers on both sides.

"I would literally wait until the last possible moment to look at the images," said Kane, the former prosecutor. "I didn't want to look at the images unless I had to."

Beyond this discomfort, both defense lawyers and prosecutors say the cases don't take much skill. On the defense side, the strategic options are limited.

Harrison's attorney, Edwin Prather of Clarence & Dyer, tried to suppress the government's computer search by inveighing against border laptop seizures — with the added contention that Harrison told customs officials he was an attorney and the computer contained privileged material.

While Harrison died before Judge Phyllis Hamilton could rule, Prather's prospects wouldn't have been good: Last month, after Harrison's death, the Ninth Circuit U.S. Court of Appeals upheld the government's practice of searching laptops at the border, though that case didn't involve an attorney-client privilege claim.

"Not a single court has stated that attorneys, or their computers, are subject to greater Fourth Amendment protections than other persons," the government wrote in opposing Harrison's motion.

Ex-KGO radio host Bernie Ward attempted to mount a First Amendment challenge, arguing he had child pornography in connection with a book project. But his lawyer, Doron Weinberg, ultimately aborted that defense, and Ward intends to plead guilty.

While Weinberg would not discuss Ward's case because sentencing is still pending, in general, he said the law is strict.

"Because intent, knowledge and purpose have no room, no place in the litigation of these cases," Weinberg said, "and the case revolves simply or completely on the physical reality of these images, there's not a lot a lawyer can do on behalf of the client."

Prosecutors do face challenges, Kane said, beyond ensuring the legality of the search. To prove possession, the feds must be able to demonstrate that the children in the images were, in fact, underage. That can be tricky with teenagers, or with digitally manipulated photos. Earlier this month, the U.S. Supreme Court gave the government breathing room on this front, allowing prosecutions based on solicitations for child pornography, even if the images didn't depict actual minors.

Prosecutors must also decide when mere possession deserves federal charges.

According to DeGarmo, Harrison told him he downloaded the child porn when he was bored one night in the Philippines. But the material included a naked girl, approximately 7 to 10 years old, with a sex toy being inserted into her vagina. The 63-year-old lawyer had a young daughter with his current wife, and prosecutors say that in general, access to children is a prime factor in deciding whether to bring charges.

Other federal tipping factors include the number of images found, prior arrests or travel to countries where sex tourism is well established, Russoniello said.

No prosecutor handles child exploitation cases exclusively, Russoniello said, in order to guard against mental fatigue.

It isn't like more experience translates into strategic brilliance, anyway.

"You don't learn a whole lot by the 10th one. You move on," Kane said.

OVERWHELMING CONVICTIONS

In addition to Harrison, Halldin and Hirsohn, Northern California prosecutors have charged 37 others with possession of child porn in the last 17 months, Russoniello said.

Two other law enforcement targets killed themselves before facing formal charges. One of them shot himself a few days after the feds executed a search warrant last August. And in December, a week after the execution of a search warrant, another person was found dead in Castle Rock State Park — a presumed suicide. Russoniello declined to name them.

For the others, the outlook is bleak. Out of 1,209 child porn cases concluded by the Justice Department in 2006, 95 percent resulted in convictions, with 92 percent of defendants pleading guilty, according to statistics cited by U.S. Supreme Court Justice David Souter in his dissent (.pdf) to the court's recent child porn ruling.

Defense lawyers chalk that up to the mandatory minimum sentences, which they and Russoniello also cite as a probable factor in the suicides.

When the feds pair simple possession with a receipt count — exceedingly common in computer porn cases — the sentencing floor is five years. Images found while the defendant is traveling also trigger a mandatory minimum.

And prosecutors can scale the guideline range up based on the number of images they find, a calculation that can be subjective, said Santa Rosa attorney Stephen Turer.

"They come in a sheet, with 20 images on a page, so they can be treated as 20 separate images, or one image," Turer said. If the prosecutor can be convinced the client has never tried to solicit children or acted out in any other way, Turer said, then the number of images can be adjusted down for purposes of moving closer to a minimum sentence.

"What does come as a surprise [to defendants] is the high probability they will be convicted and sent to prison," Russoniello said. As the seriousness of the legal peril sets in — both for the defendant and his family — the psychological and financial pressure can become unbearable, the U.S. attorney said.

DeGarmo is indignant about his friend Harrison's fate.

"People who knew Jeffrey never thought for one second he was a pedophile," DeGarmo said. "I'm sorry the feds don't want to draw a distinction between middle-aged men looking at dirty pictures and pedophiles, but there is one."

While some other defense lawyers scorn the federal government for devoting so many resources to child porn possession instead of more complex and intriguing cases like white-collar crime, therapist McAndrews said she believes the government should prosecute — but combine any law enforcement efforts with mental health treatment for first offenders.

"Child porn is difficult to treat because it does have an addictive nature," McAndrews said, adding that the pervasiveness of Internet access can make it hard to stay away. Still, every case is different, she said. With therapy and medication to address root abuse or depression issues, she said, treatment can work, and save the criminal justice system money. Prison would be appropriate for repeat offenders, she said.

Russoniello points to research — which he acknowledges is incomplete — that shows child pornography users are more prone to attack children. So treatment is fine — as long as it happens in prison, he says.

As a prosecutor, Kane said, she recognized the victimization that occurs when a person knows a grotesque image of themselves is being passed around. But she also didn't think of her job in grandiose terms.

"I didn't feel like I was going to put an end to the proliferation of child porn," she said. "It's endemic. People that want it will find it, and it will be out there."