Amended Findings of Fact and Conclusions of Law


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Amended Findings of Fact and Conclusions of Law

  1. 1. STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURT ) CRIMINAL DIVISION 3COUNTY OF MARION ) ) 49003-0807-PC-158636 ) ~ ~JEFF HOWELL , Ell)Rn llrfi ~ ~v~-~~ vs.STATE OF INDIANA ) ~ A 2 5 2011 UG ~, PETITIONERS AMENDED CUR~U,U-<PI • i vvif:J{J v 7 FINDINGS OF FACT AND CONCLUSIONS OF LA~ THIMAAIONQIIYUifOOYM(P I Comes now the Petitioner, Jeff Howell, prose, and files his Amended Findings of Factand Conclusions of Law in the above cause, which replace those filed previously. FINDINGS OF FACT 1. On July 1, 2008, the State of Indiana, by information, charged Petitioner with onecount of child solicitation and two counts of attempted dissemination of matter harmful tommors. 2. On July 2, 2008, Master Commissioner Stanley Kroh presided over an initialhearing where Petitioner was advised of his rights pursuant to Ind. Code§ 35-33-7-5 and 6 andof the charges filed. A preliminary plea of not guilty was entered. 3. On July 25, 2008, Public Defender Jane Ruemmele was appointed by the Court torepresent Petitioner. 4. On January 6, 2009, Trial Counsel moved to dismiss the attempted disseminationcharges and on January 7, 2009, Judge Sheila Carlisle granted the motion. The final amendedinformation was filed on February 9, 2009, dismissing the attempted dissemination charges. 5. On February 9, 2009, this matter came before this Court for a jury trial beforeJudge Sheila Carlisle. A jury was selected and sworn. Both parties presented evidence and thejury found Petitioner guilty. The Court entered a judgment of conviction. !
  2. 2. 6. On February 27, 2009, Petitioner appeared before Judge Carlisle for sentencing.Petitioner was sentenced to four years; two years executed and two years suspended with twoyears of probation. Petitioner was advised of his rights to appeal and appointed pauper counselfor that purpose. 7. Petitioner filed a timely Notice of Appeal on March 26, 2009. 8. The clerk filed its Notice of Completion ofTranscript on June 4, 2009, thuscompleting the record. 9. On or about July 2, 2009, Kimmerly A. Klee was appointed as Appellate Counsel. 10. On July 24, 2009, the Brief of Appellant was filed by Appellate Counsel. Ex. 1. 11. On August 19, 2009, the State filed its Brief of Appellee. Ex. 2. 12. On October 20, 2009, the Indiana Court of Appeals issued its MemorandumDecision affirming Petitioners conviction. Ex. 3. 13. On November 19, 2009, Appellate Counsel filed a Petition to Transfer with theIndiana Supreme Court on Petitioners behalf. Ex. 4. 14. On November 20, 2009, Petitioner filed a Verified Petition for Post ConvictionRelief with this Court, which is incorporated by reference. 15. On January 7, 2010, the Indiana Supreme Court issued its decision to denytransfer. Ex. 5. 16. On June 7, 2010, Petitioner filed his uncontested Affidavit in Support of Petitionfor Post Conviction Relief, in which he outlines the actions that led up to his arrest andprosecution in this cause. Ex. 41.
  3. 3. 17. On April15, 2011, Petitioner filed the uncontested Affidavit of MalcolmMcMakin, in which McMakin outlines the testimony he would have provided if he had beenallowed to testify at trial. Ex. 42. 18. On or about May 1, 2008, Petitioner entered the Yahoo chat area and selected oneof the Indiana chat rooms. All of the Yahoo chat rooms are, and were known to Petitioner to be,restricted to Yahoo users who are at least 18 years of age. Ex. 13-17, 19, 43, 44. 19. While in the Yahoo Indiana chat room, Petitioner observed the screen name"indydiamondgirl08" which was not engaging in conversation. Petitioner noted that, as usual,there was a large number of"chat bots 1" in the chat room as well. The Yahoo chat rooms areproliferated, sometimes to capacity, by these chat hots. Ex. 38, 45. 20. Odier and the State claim, on several occasions, to have "[ ... ]set up a Yahooaccount using the screen name indydiamondgirl08 and creating a profile indicating that he wasa fourteen-year old girl named Ashley." Ex. 2, p. 31. The State provided no evidence of such aprofile. While Odier presumably did create a profile, it was clearly an adults profile, otherwisehe would not have had access to Yahoos chat rooms. Furthermore, the profile did not "indicate"that it represented a person of any specific age. Ex. 10. Each presentation by Odier and theState that such a profile had been created- application for search warrant, probable causeaffidavit, charging information, court testimony, eta/- constitutes distinct and separateinstances of perjury, prosecutorial misconduct, or both. Trial Counsel was ineffective andcommitted fundamental error when she failed to press the State to present a copy of the profile(Ex. 7, p. 80, n. 21-24), for not obtaining and presenting the profile herself, and for notchallenging Odiers and the States false claims that such a profile existed in the manner in1 A chat bot is a computer program that is able to emulate human-like conversations. It is often impossible to tell thedifference. Exhibit 45 is an example of such a conversation. In early 2011, a bot called "Watson" appeared as acontestant on the popular TV game show Jeopardy.
  4. 4. which the State claimed. Appellate Counsel was ineffective and committed fundamental errorfor failing to raise this as a claim in the direct appeal, and for not challenging the States claim inthe Appellees Briefby filing an Appellants Response. 21. Prior to engaging Odier in conversation, Petitioner viewed the Yahoo profileassociated with the "indydiamondgirl08" screen name, where he found a photo of a female, withthe purported name of"Ash" or "Ashley" and a location of"Indianapolis." There was no agelisted, nor was there any other information that would definitively identify the age of"indydiamondgirl08." Ex. 10 22. For clarification, while it is not possible to create an account/profile withoutentering the users date of birth, the user has the option of displaying or hiding the resulting age.Regardless as to whether or not the age is displayed, if the user is under 18, (s)he will not haveaccess to Yahoos chat rooms. Obviously, Odier chose to hide his age because in having his agedisplayed, it would be obvious to other users that he was an adult. Since the States case seemsto revolve around the profile, it should have been presented to the Court. Of course, the Statechose not to present the profile to the Court, because doing so would have exposed their falseclaim of having created a profile for a minor. Again, Trial Counsel was ineffective andcommitted fundamental error when she failed to press the State to present a copy of the profile.Appellate Counsel was ineffective and committed fundamental error for failing to present this asa claim in the direct appeal. 23. On direct, when asked at trial what information he provided when setting up hisfictitious profile on Yahoo, Odier states "You put on very basic limited information, what yourZIP code is." Odier continues, "And you can put as much or as little information on there as youwant. If you dont put anything on there, the only thing your profile would show would be your
  5. 5. screen name, to show your screen name at the top, and all the other fields, which are optional,would be blank. We chose to fill in those fields." Emphasis added. Ex. 7, p. 71, n. 15-22; Ex.10. Trial Counsel was ineffective and committed fundamental error when she failed to challengeOdiers false testimony. Further, the State committed prosecutorial misconduct by suborningOdiers false testimony. Appellate Counsel was ineffective and committed fundamental error forfailing to raise this as a claim in the direct appeal. 24. Also on direct, Odier was asked if there was any point during the setup process atwhich he was required to verify how old he was, to which he responded "no." Ex. 7, p. 72, n. 2-6. All Yahoo users are required to verify their age by entering their date ofbirth at the time theiraccount/profile is created. Ex. 13, 44. Trial Counsel was ineffective and committed fundamentalerror by not challenging Odiers false testimony. Further, the State committed prosecutorialmisconduct by suborning Odier s false testimony. 25. Yahoo s Terms of Service, Ex. 13, 44, clearly state that all of its chat rooms arerestricted to adults 2 • Also, when a user enters Yahoos chat room area, they are presented with ascreen on which it is clearly posted that their chat rooms are available only to users who are atleast 18 years of age. Ex. 19. This fact has also been published in the media3 after Yahoo cameto an agreement with the New York and Nebraska Attorneys General to voluntarily restrict theirchat rooms to adults in an effort to help protect minors. Ex. 14-17. Neither Odier nor the Statecould have been mistaken about this fact; when Odier signed into the chat rooms, he would berequired to complete the same steps as any other chat room user. Though not required by law,Yahoo has been pro-active by voluntarily using gateway technology to screen their chat room2 For clarification, anyone of any age may create a Yahoo account/profile; however, children under 13 years of agemay not create an account/profile without parental oversight. Simply having an account/profile on Yahoo does notprovide access to all areas of Yahoo, including their chat rooms, which are restricted to users 18 and older. Including articles carried by major media sources, such as The Associated Press, CNN, Reuters, and USA Today.Ex. 14-17.
  6. 6. visitors ages in an effort to help protect minors. Trial Counsel was ineffective and committedfundamental error by not challenging Odiers false testimony. Appellate Counsel was ineffectiveand committed fundamental error by not raising this claim in Petitioners direct appeal. Further,the State committed prosecutorial misconduct by suborning Odiers false testimony. See Cone.Of Law 93-95. 26. Odier testified on direct that Yahoo was not aware of his decoy activities in theYahoo chat rooms, thus indicating he had no special authority, no special access, and no specialprivileges in accessing Yahoo s chat rooms. Ex. 7, p. 71 , n. 23-25. As far as Yahoo wasconcerned, Odier was just another chat room user. 27. Yahoo makes no distinction and has no rules as to what types of conversationsmay take place in their various chat rooms. Because all of Yahoo s chat rooms are restricted toadults, conversations of an adult nature can and do take place without regard to the category intowhich a particular chat room falls. Thus, it matters not that Petitioners conversation with Odiertook place in an "Indiana" chat room. Yahoo s Terms of Service (TOS) specify that " [ ... ]Yahoo has created certain areas on the Service that contain adult or mature content. You must beat least 18 years of age to access and view such areas." Yahoos chat room area is one such area.Ex. 43, p. 230, ~ 2. 28. Yahoo "spokeswoman Mary Osako said Yahoo will also enhance online userssafety by restricting Yahoo chat to users 18 and older and removing the teen category.""Because of this agreement, Yahoo chat rooms are a safer place today," said Jon Bruning,Nebraskas Attorney General. Ex. 15. Bruning said the agreement means "our children are saferonline and predators have fewer opportunities to prey on them." Ex. 14. "Yahoo will bar chatrooms that promote sex between minors and adults and restrict all chat rooms to users 18 and
  7. 7. older." Ex. 16. "This is about protecting kids," Bruning said .... !d. "The company [Yahoo] isalso eliminating the teen chat category and limiting usage of all chat rooms to adults .... " !d. 29. When creating an account/profile on Yahoo, "Yahoo! Requires users to fill out anonline registration form, which asks users to select a unique Yahoo! ID and to enter personalinformation such as their first and last names, birth date, zip code and email address." Emphasisadded. Swiger v. Allegheny Energy, Inc., 2006 U.S. Dist. Lexis 32059, Civil Action No. 05-CV-5725 (Opinion by Joyner, J.). If any of the required information is omitted, the individual ispresented with a screen that clearly shows that "your full birthday is required." Ex. 18. AYahoo account/profile cannot be created without entering the required information. 30. During closing arguments, the State says "There was no evidence of an adult chatroom. The detective explained there is [sic] adult chat rooms. Theres a role-playing chat room.There was no evidence that this chat happened in there." "Where did this chat happen? Theonly evidence was an Indiana chat room, a basic chat room. So yeah, there are. Were sayingthat there werent. Were saying it didnt happen. If thats what he wanted to do, go to that chatroom." Ex. 7, p. 88, n. 11-21. Trial Counsel was ineffective and committed fundamental errorwhen she failed to object to and challenge these arguments and Appellate Counsel wasineffective and committed fundamental error for failing to raise this as a claim in the directappeal. 31. The States arguments with regard to "Ifthats what he wanted to do, go to thatchat room," implying that if the Petitioner had wanted to engage in an adult-orientedconversation, he should have gone to a different chat room, violates Petitioners FirstAmendment rights, as "One is not to have the exercise of his liberty of expression in appropriateplaces abridged on the plea that it may be exercised in some other place." Schneider v. State,
  8. 8. 308 U.S. 147, 163. See also Interstate Circuit v. Dallas, 390 U.S. 676; Bantam Books, Inc. v.Sullivan, 372 U.S. 58. "Whether petitioner might have used some other [forum] .. .is of noconsequence .... Even if [another] forum had been available, that fact alone would not justify anotherwise impermissible prior restraint." Southeastern Promotions, Ltd. v. Conrad, 420 U.S.546, 556, 43 LEd 2d 448, 95 S Ct 1239 (1975). Trial Counsel was ineffective and committedfundamental error when she failed to object to this argument, and Appellate Counsel wasineffective and committed fundamental error by failing to raise this as a claim in Petitionersdirect appeal. 32. On direct, Odier states "And there are typical terms of service. When youreonline doing just about anything, you have to click on the boxes that say I accept the terms ofservice". Ex. 7, p. 71 , n. 10-13. On cross, Odier was asked "And do you have a copy of theservice agreement with Yahoo?" to which he responds, "I dont think we entered one, noma am." Ex. 7, p. 80, n. 25; Ex. 7, p. 81, n. 1-2. Trial Counsel was ineffective and committedfundamental error when she failed to challenge Odier about this conflicting and false testimony.Appellate Counsel was ineffective and committed fundamental error for failing to raise this as aclaim in the direct appeal. The State, once again, committed prosecutorial misconduct forsuborning Odiers false testimony. 33. Odiers false testimony and the States subornation ofOdiers false testimony wasintended as subterfuge in an effort to prejudice Petitioner and thus to deny his rights to a fair andimpartial trial. Odier s false statements while under oath are indicative of a willingness tosubvert the lawful judicial process. 34. Many chat hots have a profile in order to project the impression that the bot is areal human. Some chat hots have legitimate purposes: some companies use them to answer
  9. 9. customers questions; there are several chat bots that allow children to chat with Santa Claus;others are used for similar purposes. Other chat bots are simply used to create havoc in chatrooms, for example, to simply occupy the chat room to capacity so that legitimate users cannotenter. While not "chat" bots,per se, other bots are used to automatically vacuum our homes,mow our grass, even parallel-park our cars. 35. Petitioner did a "Google" search of the screen name, using "indydiamondgirl08"as the search term, to see what, if any, additional information he might be able to obtain.Petitioner received a "hit" from a website that appeared to identify "indydiamondgirl08" as adecoy screen name used by "Darin Odier" that listed "Indianapolis, Ind." In the column labeled"Department." The last column included the notation "Confirmed." At this point, Petitionerconcluded that "indydiamondgirl08" was in fact a decoy screen name used by "Darin Odier,"presumably a police officer with the "Indianapolis, Ind.," police department, and that theinformation had been confirmed in some way. Petitioner noted that similar information waslisted for other screen names. Ex. 32. This appears to have been a web site similar ("who s a rat"), in which the public can submit reports of individualsbelieved to be police informants ("rats"). 36. Petitioner also located a profile on MySpace that was associated with the"indydiamondgir108" screen name, which displayed the same retouched photo as that found onthe Yahoo profile. At that time, an age of "99" was displayed, along with the location of"Indianapolis." Again, there was no information listed on the MySpace profile that woulddefinitively identify the age of "indydiamondgirl08" or that "she" was a minor. Ex. 11 . Exhibit12 includes random profiles from Yahoo and MySpace that are representative of whatinformation is typically displayed.
  10. 10. 37. The Google search that Petitioner performed for "indydiamondgirl08" wasconfirmed during cross-examination of States witness David Kimm, Ex. 7, p. 85, n. 21, who, atthe request ofiMPD, performed the forensics examination on Petitioners computer, Ex. 21, pp.144-145. Trial Counsel was ineffective and committed fundamental error when she failed topursue this issue to show the significance of that information. Likewise, Appellate Counsel wasineffective and committed fundamental error when she failed to raise this as a claim in the directappeal. 38. Petitioner also did a Google search using the search term "Darin Odier" andreceived information pertaining to other cases that Odier had investigated, such as news mediaarticles. Petitioner also received information regarding personal activities of Odier, such asathletic events and sorority membership. Ex. 33-35. 39. Among the information retrieved on Odier was a web site listing "Darin Odier" asan alumnus of Indiana State University in Evansville. This is what led Petitioner to use thelocation of Grayville, Illinois, for "Kristi Russells" location, as Grayville is a short distancefrom Evansville and Petitioner thought that would add some familiarity. Petitioner also located anewspaper article pertaining to Odier s marriage. This information could not be saved. 40. Petitioner realized this decoy activity was being conducted in a chat room that isrestricted to adults, thus wondering why a reputable law enforcement agency and/or officerwould be wasting resources conducting such an activity in an environment where there would beno minors subject to predation. 41. Petitioner was aware that the use of such decoy operations in adult chat roomswastes resources and was a First Amendment violation as it causes the adults engaging in adult
  11. 11. oriented conversations in the chat rooms to self-censor rather than subject themselves to potentialprosecution due to arbitrary and discriminatory enforcement. 42. When an individual enters a venue that is, and is known to be, restricted to adults,and that is known to be using gateway technology to screen those individuals who wish to enter,is it not reasonable to believe that other individuals who might be present would also be adults?It is prominently posted in several areas of the Yahoo site, including the chat sign-in screen, thatchat users must be at least 18. Ex. 19, 43, 44. 43. Because of Yahoos use of gateway technology to screen its chat room users, it isimpossible for a minor to, even accidentally, find him/herself in one of its chat rooms. 44. Petitioner chose to engage "indydiamondgirl08," knowing it to be Odier, in aconversation, essentially to challenge Odier s activity as it related to the adult chat rooms. 45. Petitioner initially contacted Odier using "john_doe8238" and engaged in anotherwise innocuous conversation where Petitioner provided Odier with his real name, location,where he worked, and a link to his MySpace profile which contained photos and otherinformation about Petitioner. Petitioner had no intention of concealing his identity from Odier,but could have easily done so by using a proxy server or web anonymizer4• Petitioner knew thatthe information provided to Odier would make it easy to identify and/or locate him. Odiertestified in this regard. Ex. 7, p. 74, n. 17-25; Ex. 7, p. 75, n. 1-7. 46. During the online chats, knowing Odier was a police officer, Petitioner askedOdier various questions in an attempt to elicit a response or acknowledgment from Odier that he4 See, e.g. , Tagged, Inc., v. XXXB/ackbookcom, eta/, No. C 09-01713 WHA (N.D. Cal. 2010) (A proxy server"hides" a computers IP address serving as an intermediary computer-- a "middle man"-- between the website andthe user); Internet users who want to keep their identity secret can use anonymous proxy servers or anonymizers.Center for Democracy & Technology, eta/, v. Gerald J. Pappert, 337 F. Supp. 2d 606, 644 Civil Action No. 03-5051 (E.D. Pa. 2004) (opinion by Jan E. Dubois); see also American Library Association, eta/, v. United States, eta/, 201 F. Supp. 2d 435, Civil Action No. 01-1303,01-1322 (E.D. Pa. 2002) (opinion by Edwin R. Becker) (Usersmay access Web sites indirectly via an anonymizer when they do not want the Web site they are visiting to be ableto determine the IP address from which they are accessing the site).
  12. 12. was indeed a police officer and/or that would give Odier the impression that Petitioner knew hewas a police officer. These questions were of the nature, "Are you a cop looking for pervs?" and"what PD are you with?" and other questions that only someone involved in law enforcementwould understand. Odier testified that Petitioner had in deed asked these questions. Ex. 7, p. 81 ,n. 21-25; Ex. 7, p. 83, n. 8-25. 47. After a few minutes of conversation using the john_doe8238" screen name,Petitioner switched to another screen name, "kristi_russell_90210." Petitioner then contactedOdier from the second screen name and, as Odier was doing, took on the persona of an 18-year-old female from Grayville, Illinois. 48. The conversation between "Kristi" and Odier became explicit, as Petitioner waswell aware that "indydiamondgirl08" was an adult and that their conversation was taking place,or was initiated in, a chat room that was restricted to adults. 49. During "Kristi s" conversation with Odiers fictitious persona, Petitioner, againknowing that he was communicating with an adult, offered two photos depicting nudity, but thatwere not obscene, as nudity alone is not obscene. An individual who is offered photos throughYahoo s photo-sharing process must take affirmative action to receive those photos, which Odieraccepted. An individual cannot be "forced" to receive photos that are offered through Yahoosphoto sharing feature. 50. Odier testified that if"Kristi" and "Ashley" had both been the persons they wererole-playing as, this activity would not have been a violation of the child solicitation statute. Ex.7, p. 84, n. 16-25. 51. Petitioners conversations with Odier were designed to make Odier "believe" thatPetitioner "believed" that he was communicating with a minor, even though Petitioner had
  13. 13. already determined the real identity of"indydiamondgirl08," knowing that there would be no oneunder the age of 18 in the Yahoo chat rooms. Ex. 13-17, 19, 43, 44. 52. Petitioner asked Trial Counsel why she failed to challenge Odier s falsetestimony, to which Trial Counsel responded, "It doesnt matter," in a condescending tone ofvoice. Petitioner had provided Trial Counsel with documentation proving that Odiers testimonywas false and she chose to ignore it. Thus, Trial Counsel was ineffective and committedfundamental error. Appellate Counsel was ineffective and committed fundamental error whenshe failed to raise this claim in Petitioners direct appeal. 53. Petitioner documented his May 1, 2008, chat room activity involved in this case,by way of a personal journal, which he created at or about the time 5 that he begancommunicating with Odier. Ex. 36. Petitioner saved this and other exculpatory information to athumb drive with a backup to CD-ROM. The CD-ROM backup was hidden and not seized byOdier. The information was also uploaded to a hidden location on Petitioner s web site;however, while incarcerated, Petitioners debit card expired and his web site was deleted due tothe fact that the web hosting company could not receive automatic payments from Petitioner sbank. 54. The thumb drive, to which Petitioner saved his personal journal and otherexculpatory evidence, was seized by Odier on June 30, 2008. Petitioner believes the thumb driveis still in Odier s custody, as when Petitioner picked up his property from the Grand JuryDivision in July 2010, that particular thumb drive was missing; the inventory of items seizedfrom Petitioner s residence on June 30, 2008, reflects that this thumb drive was seized, yet thedocumentation provided to Petitioner at the time he retrieved his property does not list thisthumb drive as being returned to Petitioner.
  14. 14. 55. When Appellate Counsel prepared the Appellants Brief, she indicated that Odierhad testified that Yahoos chat rooms were restricted to users who are 18 or older, Ex. 1, p. 19-20, however, this conflicts with his actual testimony. Ex. 7, p. 71-73; Ex. 7, p. 80, n. 13-15.Thus Appellate Counsel was ineffective and committed fundamental error by misrepresentingOdiers testimony in the direct appeal. 56. In the Appellees Brief, Ex. 2, pp. 41-42, the State makes the followingobservation: "If the person believes that he is speaking to an adult (regardless of what role isbeing played) or if he is at most only reckless with regard to whether he is speaking to an adult,his conduct will not fall within the purview of the [child solicitation] statute." Emphasis added.Here, the State is implying that an individual is reckless by limiting his conduct to a venueknown to be restricted to adults, where no minors would be found. This goes to the Statesarbitrary and discriminatory enforcement of the statute and is untenable. 57. The State continues, "The child solicitation statute only criminalizes solicitationsmade to children or to people who are believed to be children by the solicitor. Nothing in thestatute prevents an adult from going onto the Internet, finding another adult, and engaging insexual solicitations." Ex. 2, p. 42. The States line of thinking is misplaced here, whereindividuals who are exercising one of their fundamental rights of free speech in adult venues -chat rooms known to be restricted to adults - are being arrested and prosecuted for their actions.This arbitrary and discriminatory enforcement clearly violates a number of Constitutional rights. 58. Trial Counsel was ineffective and committed fundamental error when she failedto introduce the deposition of Clarissa Charfauros at Petitioners trial, and did not ask thosequestions of Charfauros at trial. In fact, Trial Counsel failed to question Charfauros at all at trial.Petitioner was not aware that Charfauros had been deposed until after his trial. Trial Counsel
  15. 15. did, however, ask these questions during cross of Charfauros during Petitioners Obstruction ofJustice trial on February 11,2009. Ex. 9, p. 100, n. 18-23; Ex. 9, p. 101, n. 8-19. 59. IfTrial Counsel had cross-examined Charfauros, with the appropriatequestioning, the Court would have learned that, not only was Petitioners and Charfaurossrelationship never inappropriate, but that, on a number of occasions, Charfauros had askedPetitioner to "come get" her. On several other occasions, Charfauros told Petitioner that shewanted to run away, quit school, and so forth. Proper questioning of Charfauros would haverevealed that, when Charfauros posed these questions to Petitioner, he always respondedappropriately by telling her that he could not "come get" her, that she should stay in school, etc.,thus providing appropriate guidance when required. On at least one occasion, Charfauros tried toconvince Petitioner to move to Montana. In each of these situations, Petitioner responded that itwould not be appropriate, and that he had a career and reputation to protect. Unfortunately, theState has refused to allow Petitioner to obtain this testimony on these subjects, by way ofaffidavit, even though Petitioner has attempted to have his questions submitted through the Courtin order to avoid violation of the no-contact order. Petitioner believes that State is aware thatCharfauros s testimony would be favorable to his case. This denies Petitioner of his rights toDue Process. Petitioner also suspects that Charfauros is not aware and did not consent to a no-contact order. 60. Prior to Petitioners trial, during voir dire, one female jury candidate expressedher opinion that "I think hes guilty." Of course, this candidate was eliminated and admonished;however, Petitioner believes that, due to the nature of the allegations, most, if not all, of the jurycandidates, including those selected for jury duty, had the same opinion. This is in large part dueto the "pretrial publicity" caused by the media hype regarding Internet solicitation.
  16. 16. 61. Trial Counsel was ineffective and committed fundamental error when she failedto object when the State mentioned the popular television program, "To Catch a Predator." Thissimply planted a picture of guilt in the minds ofthe jurors and denied Petitioner the right to a fairtrial. Appellate Counsel was ineffective and committed fundamental error for not raising thisclaim in the direct appeal. 62. Trial Counsel had obviously failed to familiarize herself with Indianas childsolicitation statute, as well as relevant case law pertaining to the statute, as evidenced by the factthat she insisted upon arguing a "mistake of fact" when the Indiana Court of Appeals explicitlystates there is no mistake of fact defense. Appellate Counsel was ineffective and committedfundamental error for not raising this claim in the direct appeal. See Conclusions of Law~ 83. 63. Trial Counsel was ineffective and committed fundamental error by failing toallow Petitioner to testify at his trial. Trial Counsel told Petitioner she was afraid he would "saythe wrong thing," to which Petitioner responded, "Well, I would have to tell the truth."Petitioner wanted the opportunity to bring all facts of his case to light but was not afforded thatopportunity. Appellate Counsel was ineffective and committed fundamental error for not raisingthis claim in the direct appeal. Petitioners Affidavit in Support of Petition for Post ConvictionRelief outlines the testimony he would have provided if he had been permitted to testify. Ex. 41. 64. During jury deliberations, Jury asked to see certain exhibits, but Trial Counselobjected. Ex. 7, p. 89-92. Trial Counsel was ineffective and committed fundamental error as theJury had a legitimate request to see the exhibits, even if it meant bringing them back into thecourtroom. Appellate Counsel was ineffective and committed fundamental error for failing toraise this claim in the direct appeal.
  17. 17. 65. The Jury was told to expect a two-day trial, to which they agreed. However, later in the day, the Jury asked if they could finish the trial early so they could go home, to which theJudge agreed. Ex. 7, p. 79. Thus, the Jury rushed to judgment. Trial Counsel was ineffectiveand committed fundamental error when she failed to object. Appellate Counsel was ineffectiveand committed fundamental error by failing to raise this claim in the direct appeal. 66. During trial, the State implied that Petitioner had "gained the trust" of Charfaurosby using his position of authority in law enforcement. Trial Counsel was ineffective andcommitted fundamental error when she failed to question Charfauros about the many otherfriends she had met via the Internet with regard to how many of those individuals had "gainedher trust." Cell phone records reflect that Charfauros used, on average, several thousand minuteseach month, and was in contact with a great number of individuals all over the country. Ex. 40. 6 67. During trial, Odier repeatedly referred to his fictitious screen name as"indydiamondgirl08" (oh eight). 7 Trial Counsel was ineffective and committed fundamentalerror when she failed to object since Petitioner had never had a conversation with that screenname. During Petitioners Obstruction of Justice trial, the Judge made it clear that the properscreen name was critical by insisting that Charfauros enunciate Petitioners )ohn_doe8238"screen name. "Indydiamondgirl08" (oh eight) is not the same as "indydiamondgirl08" (zeroeight). 68. Trial Counsel was ineffective and committed fundamental error when she failedto object to the examination of the contents of Petitioners laptop computer on November 24,6 To keep the size of his Exhibit Record to a minimum, Petitioner has included only information from the month inwhich Charfauros used the most minutes of call time. The statement for this particular month is over 50 pages, andis representative of the other months usage. Exhibit 40 is a summary of cell phone minutes used during the periodof time that Charfauros had the phone in question.7 Obviously, the enunciation of the screen name cannot be reflected in this written document. It is, however,reflected in the audio transcript of Petitioners trial.
  18. 18. 2008, and to the removal of Petitioners U.S. Government identification card from Petitionerswallet on June 30, 2008, both of which were not allowed by the express terms of the searchwarrants obtained by Odier. The identification card was not relevant to the investigation and wasinside his wallet, thus not in plain view. See Conclusion of Law~ 98. Appellate Counsel wasineffective and committed fundamental error by not raising this claim in the direct appeal. 69. During trial, the State had placed their video projection screen in such a mannerthat Petitioner could not see the presentation. Trial Counsel was ineffective when she failed toobject. Ex. 7, pp. 76-77. Appellate Counsel was ineffective for not raising this claim in thedirect appeal. 70. Prior to trial, Trial Counsel had told Petitioner that she was going to depose Odierfor the purposes of impeachment, however, she failed to do so, and thus she was ineffective andcommitted fundamental error. Appellate Counsel was ineffective and committed fundamentalerror for not raising this claim in the direct appeal. 71. The numerous errors encountered during Petitioners trial constitute cumulativeerror. Appellate Counsel was ineffective and committed fundamental error by failing to raisecumulative error as a claim in Petitioners direct appeal. 72. Trial Counsels failure to grasp the basics of the charges resulted in manifestinjustice to Petitioner. 73. Trial Counsel committed ineffective assistance of counsel and fundamental errorwhen she failed to arrange for certain individuals to testify at Petitioners trial, after Petitionerhad made a list of potential witnesses available to counsel. Of particular importance would havebeen the testimony of Malcolm McMakin, whose testimony supports many of Petitioners claimsthat he knew he was communicating with a police officer and not a minor. McMakin signed an
  19. 19. affidavit to this effect, which was admitted uncontested. Ex. 42. Affidavits are sworn testimonyand constitute competent evidence in post-conviction proceedings. 74. Petitioner is actually innocent. If Trial and Appellate Counsel has not committedthe numerous errors enumerated herein, and had the State not prejudiced Petitioners right to afair trial, the outcome of the trial would have no doubt been different. "Our Post-Conviction Rule1(a)(4) acknowledges the need for relief on a showing of evidence of material facts, notpreviously presented and heard, that requires vacation of the conviction or sentence in theinterest of justice. The interest of justice surely requires overturning a conviction of an innocentperson." Norris v. State, 896 N.E.2d 1155 (2008). 75. If guilt here is clear, the dignity of the law would be best enhanced by establishingthat guilt wholly through the processes of law unaided by the infusion of extraneous passion.The moral health of the community is strengthened by according even the most miserable andpathetic criminal those rights which the Constitution has designed for us all. Stroble v.California, 343 U.S. 181,201 (1951). 76. Jurors are of course human beings and even with the best of intentions in theworld they are, in the well-known phrase ofHoms and Hughes, JJ., "extremely likely to beimpregnated by the environing atmosphere." Frank v. Mangum, 237 U.S. 309, 345, 349. 77. Science with all its advances has not given us instruments for determining whenthe impact of such newspaper exploitation has spent itself or whether the powerful impressionbound to e made by such inflaming articles as here preceded the trial can be dissipated in themind of the average juror by the tame and often pedestrian proceedings in court. Moreover, theSupreme Court of California found that at the time of the petitioners trial there was notoriouswidespread public excitement, sensationally exploited by newspaper, radio and television,
  20. 20. concerning crimes against children and defendants crime in particular." Stroble v. California,supra (Justice Frankfurter, dissenting). 78. "It seems that the traditional concept ofthe American way ofthe conduct of atrial, particularly a trial for a sordid criminal offense such as that of defendant, includes both theaspects mentioned so understandingly by Mr. Hill: on the one hand overstimulation, by massmedia of communication, of the usual public interest in that which is gruesome; on the otherhand a trial by ajudge and jury immune from the public passion." People v. Stroble, 36 Cal. 2d615, 620-621, 226 P.2d 330, 333-334. 79. The U.S. Supreme Court has grappled with the issue ofpretria1 publicity since the1960s. In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the defendant,Leslie Irvin, was convicted of committing six murders in a rural area of Indiana. The crimesgenerated extensive media coverage. Irvin argued that the pretrial publicity prevented him fromreceiving a fair trial by an impartial jury. The Court agreed, noting that eight of the twelve jurorswho heard the case had decided that Irvin was guilty before the trial began. Despite theseadmissions, the trial judge accepted as conclusive the jurors statements that they would be ableto render an impartial verdict. The Court held that the substantial publicity surrounding the casemade the trial judges determination of juror impartiality erroneous. It set out a basic rule thatwhen pretrial publicity has been substantial, a trial court should not necessarily accept a jurorsassertion of impartiality. In these cases a presumption s raised that the jurors are biased. 80. In Sheppardv. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966),local officials allowed Dr. Samuel H. Sheppards 1954 murder trial to degenerate into a mediacircus. The Cleveland media heavily publicized the case before trial and disrupted the control ofthe court during the trial. The jurors were exposed to intense media coverage of the case until
  21. 21. the time they began their deliberations. Following deliberations, Sheppard was convicted ofmurder. Sheppard spent ten years in prison before the Supreme Court ruled that the publicityhad deprived him of a fair trial. Sheppard was acquitted at his second trial. 81. The concept of a fair trial is hinged not necessarily upon law enforcement butmore on the protection of the innocent. Gilbert Helwig wrote, "The underlying premise of ourconcept of justice is that it is better for a crime to go unpunished than for an innocent man to beconvicted ( 1967, p. 149). This is in accordance to the conception of the inhumanity of a situationwherein the accused is placed in a position wherein he is forced to wage a war against society.In this sense, the right to fair trial of the accused is in accordance to his right of reputation andthe right to confidentiality." 82. A defendants right to an impartial jury includes the right to an adequate voir direto identify unqualified jurors. Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230,119 L.Ed.2d 492,503 (1992). In United States v. Davis, 583 F.2d 190 (5th Cir. 1978), weexamined the elements of an adequate voir dire when the jury venire has been exposed topotentially prejudicial pretrial publicity. Because jurors exposed to pretrial publicity are in apoor position to determine their own impartiality, we held that district courts must makeindependent determinations of the partiality of each juror. !d. at 198. 83. Petitioner is a well-decorated public servant who has worked in law enforcementfor well over a decade. He has received commendations from governors, members of thelegislature, as well as from civic organizations; he is a legally ordained minister, and is aKentucky Colonel, Kentuckys equivalent oflndianas Sagamore of the Wabash. When hebegan his career in public service, he took an oath to uphold the laws of this State and to defendthe U.S. and Indiana Constitutions when he began service with the U.S. Government, he also
  22. 22. took an oath to defend the U.S. Constitution as required under 5 USC 3331. He maintains hisallegiance to and obligations under those oaths, as well as to the U.S. and Indiana Constitutions.In 2005, he was requested by the FBI to provide assistance with the search for a missing 10-yearold Southern Indiana girl, due to his experience in searching for lost or missing persons. He wasan ex officio member of his agencys Violent and Sex Offender Registry Task Force. 84. Petitioner is not a pedophile, hebephile, ephebephile, and Internet, nor any otherkind of, predator. He is, however, a victim of a state statute that is unconstitutional, vague, andoverly broad, and violates the First Amendment rights of adults who choose to engage in adult-related conversations in a venue known to be restricted to adults. 85. Any Finding ofFact may be construed as a Conclusion of Law ifthe context sowarrants. CONCLUSIONS OF LAW 1. This Court has jurisdiction in this action. 2. The purpose of a petition for post-conviction relief is to raise issues unknown orunavailable to a defendant at the time of the original trial and appeal. Taylor v. State, 840N.E.2d 324, 3320 (Ind. 2006); Grey v. State, 553 N.E.2d 1196, 1197 (Ind. 1990). A post-conviction petition is not a substitute for an appeal. Davidson v. State, 763 N.E.2d 441, 441 (Ind.2002). Further, post-conviction proceedings do not offer a petitioner a "super-appeal." Benefielv. State, 716 N.E.2d 906. 911 (Ind. 1999), cert. denied, 531 U.S. 830, 121 S. Ct. 83, 148 L. Ed.2d 45 (2000). Our post-conviction rules contemplate a narrow remedy for subsequent collateralchallenges to convictions. Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999), cert. denied, 529U.S. 1113, 120 S. Ct. 1970, 146 L. Ed. 2d 800 (2000).
  23. 23. 3. If an issue was known and available but not raised on appeal, it is considered tobe waived. Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). However, fundamental errormay provide an extremely narrow exception that allows a defendant to avoid waiver of an issue.It is error that makes "a fair trial impossible or constitute[s] clearly blatant violations of basic andelementary principles of due process ... present[ing] an undeniable and substantial potential forharm." Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002). Fundamental error is defined as anerror so prejudicial to the rights of a defendant that a fair trial is rendered impossible. Id To beconsidered fundamental error, an error "must constitute a blatant violation of basic principles, theharm, or potential for harm must be substantial, and the resulting error must deny the defendantfundamental due process." Spears v. State, 811 N.E.2d 485, 488 (Ind. Ct. App. 2004). 4. A criminal defendant claiming ineffective assistance of trial counsel is atliberty to elect whether to raise this claim on direct appeal or in post-conviction proceedings.Woods v. State, 701 N.E.2d 1208, 1216 (Ind. 1998), cert. denied, Woods v. Indiana, 528 U.S.861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). But if raised on direct appeal, the appellateresolution of the issue acts as res judicata and precludes its relitigation in subsequent post-conviction relief proceedings. Thomas v. State, 797 N.E.2d 752, 754 (Ind. 2003); McCary v.State, 761 N.E.2d 389, 392 (Ind. 2002); Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001);Woods, 701 N.E.2d at 1216. 5. In contrast to a direct appeal, which addresses claims of error established in therecord of proceedings through trial and judgment, a post-conviction relief proceeding mayreceive new evidence not previously presented at trial. Ind. Post-Conviction Rules 1(1)(a)(4) and1(5); Gouldv. State, 578 N.E.2d 382,384 (Ind. Ct. App. 1991); see generally State v.Cleland, 477 N.E.2d 537 (Ind. 1985).
  24. 24. 6. To establish a violation of the Sixth Amendment right to effective assistance ofcounsel requires a defendant to prove two components: (1) counsels performance fell below anobjective standard of reasonableness based on prevailing professional norms; and (2) thedeficient performance prejudiced the defendant to the extent that, but for counsels errors, theresult of the proceeding would have been different. Perez v. State, 748 N.E.2d 853, 854 (Ind.2001); Woods, 701 N.E.2d at 1224. To support such a claim of ineffective assistance of counsel,it is often necessary to develop {887 N.E.2d 942} facts beyond those contained in the trialrecord. Mcintire v. State, 717 N.E.2d 96, 101 (Ind. 1999); Woods, 701 N.E.2d at 1216-19. Unlessforeclosed by raising the issue on direct appeal, a defendant should be permitted to present theissue of ineffective assistance of counsel utilizing the broader evidentiary opportunities affordedin post-conviction proceedings. Jewell v. State, 887 N.E.2d 929, 940 n.1 (Ind. 2008). 7. The customary procedure for challenging effectiveness of counsel under the SixthAmendment is a post-conviction ... motion. United States v. Houtchens, 926 F.2d 824, 828 (9thCir. 1991). Prejudice is not strictly construed because strict definition "would impose a heavyburden on defendant[s] who are often proceeding prose in an initial ... motion." Puguero v.United States, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(0Connor, J. concurring). 8. A new trial based on the discovery of new evidence is warranted only if defendantcan show: (1) that the evidence has been discovered since the trial; (2) that it is material andrelevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is notprivileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) thatthe evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) thatit will probably produce a different result. Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991). Seealso Loft v. State, 690 N.E.2d 204, 211 (Ind. 1997). Regarding the final and critical ninth factor,
  25. 25. the defendant must raise a strong presumption that the result at any subsequent trial in allprobability would be different. See Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992); OConnor v.State, 529 N.E.2d 331, 333 (Ind. 1988). In ruling on whether a piece of evidence would producea different result, the trial court "may properly consider the weight that a reasonable trier of factwould give it and, while so doing, may also evaluate its probable impact on a new trial in light ofall the facts and circumstance shown at the original trial ofthe case." Fox, 568 N.E.2d at 1007. 9. The issue of the sufficiency of evidence is present at every post-convictionhearing, and is thus appropriate for comment and argument by either party. Remsen v. State, 495N.E.2d 184 (Ind. 1986). 10. In order for new evidence to warrant the vacation of a conviction it should besufficiently material and decisive as to give rise to a strong likelihood that its presentation in anew trial would cause a different result to be reached. Johnson v. State, 262 Ind. 183, 313 N.E.2d542, 42 Ind. Dec. 651 (1974), questioned Mickens v. State, 596 N.E.2d 1379 (Ind. 1992); Berryv. State, 163 Ind. App. 17, 321 N.E.2d 571, 45 Ind. Dec. 361 (1975); Tomlin v. State, 163 Ind.App. 559, 325 N.E.2d 516,46 Ind. Dec. 367 (1975); Adams v. State, 430 N.E.2d 771 (Ind. 1982). 11 . In its 2008 decision in United States v. Williams, the Court reiterated thesignificance of an actual childs involvement. See United States v. Williams, 128 S.Ct. 1830,1847 (2008)(upholding the PROTECT Act). 12. On a charge of subornation of perjury, it must be proved, by the same quantum ofevidence necessary to sustain a charge of perjury, that false testimony was in fact given underoath before a competent tribunal. Hammer v United States, 271 US 620, 70 Led 1118, 46 S Ct603.
  26. 26. 13. When a conviction is obtained by the presentation of testimony known to theprosecuting authorities to have been peijured, due process is violated. The clause "cannot bedeemed to be satisfied by mere notice and hearing if a State has contrived a conviction throughthe pretense of a trial which in truth is but used as a means of depriving a defendant of libertythrough a deliberate deception of court and jury by the presentation of testimony known to bepeijured. Such a contrivance .. .is as inconsistent with the rudimentary demands of justice as isthe obtaining of a like result by intimidation." Mooney v. Holahan, 294 U.S. 103, 112 (1935). 14. If the prosecutor knew or should have known that testimony given to the trial waspeijured, the conviction must be set aside if there is any reasonable likelihood that the falsetestimony could have affected the judgment of the jury. United States v. Agurs, 427 U.S. at 103-04. 15. Prosecutors ... are not simply advocates for the government. They are alsoministers of justice whose aim is not to "win a case, but that justice shall be done." Berger v.United States, 295 U.S. 78, 88 (1935). As such, "[i]t is as much his duty to refrain fromimproper methods calculated to produce a wrongful conviction as it is to use every legitimatemeans to bring about a just one." !d.; see generally Bennett L. Gershman, The ProsecutorsDuty to Truth, 14 Geo. J. Legal Ethics 309 (2001). 16. Prosecutorial misconduct stems from a "win at all cost" mentality underlying thedesire to further a career, or a firm belief in the defendants guilt notwithstanding admissibleevidence. See Joseph F. Lawless, Prosecutorial Misconduct§ 1:06, at 1-15 (3d ed. 2003). 17. A prosecutors knowing use of false testimony violates the due process clause.Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001); Anderson v. United States, 403 F.2d 451,
  27. 27. 454 (7th Cir. 1968)(citing Mooney v. Holohan, 294 U.S. 103, 112,79 L. Ed. 791,55 S. Ct. 340(1935)). 18. The Supreme Court has defined perjury in this context to be "false testimonyconcerning a material matter with the willful intent to provide false testimony, rather than as aresult of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113S. Ct. 1111, 1116, 122 L. Ed. 2d 445 (1993). "Material" means evidence, fact, statement, orinformation that, if believed, would tend to influence or affect the issue under determination.U.S. Sentencing Guidelines Manual3C1.1, cmt., application n. 6. 19. In reviewing a claim of fundamental error premised upon an allegation ofprosecutorial misconduct, the reviewing court considers first whether there was misconduct andthen whether the misconduct, under all of the circumstances, placed the defendant in a positionof grave peril to which he should not have been subjected. Stowers v. State, 657 N.E.2d 194 (Ind.App. 1995). 20. Waiver of an issue may be avoided in a post-conviction proceeding if the failureto present the issue resulted from ineffective assistance of counsel. Collier v. State, 572 N.E.2d1299 (Ind. App. 1991). 21. Affidavits are sworn testimony and constitute competent evidence in post-conviction proceedings. Gouldv. State, 578 N.E.2d 382,384 (Ind. Ct. App. 1991). 22. In order for new evidence to warrant the vacation of a conviction it should besufficiently material and decisive as to give rise to a strong likelihood that its presentation in anew trial would cause a different result to be reached. Johnson v. State, 262 Ind. 183, 313 N.E.2d542,42 Ind. Dec. 651 (1974), questioned Mickens v. State, 596 N.E.2d 1379 (Ind. 1992); Berry
  28. 28. v. State, 163 Ind. App. 17,321 N.E.2d 571,45 Ind. Dec. 361 (1975); Tomlin v. State, 163 Ind.App. 559, 325 N.E.2d 516,46 Ind. Dec. 367 (1975); Adams v. State, 430 N.E.2d 771 (Ind. 1982). 23. The issue of the sufficiency of evidence is present at every post-convictionhearing, and is thus appropriate for comment and argument by either party. Remsen v. State, 495N.E.2d 184 (Ind. 1986). 24. Evidence is relevant if it has "any tendency to make the existence of any fact thatis of consequence to the determination of the action more probable or less probable than it wouldbe without the evidence." Ind. Evidence Rule 401 . 25. Ineffective appellate assistance claims generally fall into three categories: (1)denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. Weemploy a two-part test to evaluate "waiver of issue" claims: (1) whether the unraised issues aresignificant and obvious from the face of the record, and (2) whether the unraised issues are"clearly stronger" than the issues raised. Fisher v. State, 810 N.E.2d 674,676-77 (Ind. 2004). 26. While this Court is not empowered to declare a statute unconstitutional oroverbroad, this Court is empowered to overturn a conviction for any just reason that might havecaused the Petitioner to receive anything less than fair trial. 27. "The ... [Internet] ... receives full First Amendment protection." See Reno v.American Civil Liberties Union, 521 U.S. 844, 864-68 (1997); Ashcroft v. American CivilLiberties Union, 542 U.S. 656 (2004) (Justice Stevens, speaking for the majority). 28. The First Amendment commands, "Congress shall make no law ... abridging thefreedom of speech." The government may violate this mandate in many ways, e.g., Rosenbergerv. Record and Visitors ofUniv. ofVa., 515 US 819, 132 LEd 2d 700, 115 S Ct 2510 (1995);
  29. 29. Keller v. State Bar of Cal., 496 US 1, 110 L Ed 2d 1, 110 S Ct 2228 (1990), but a law imposingcriminal penalties on protected speech is a stark example of speech suppression. Id. 29. Even minor punishments can chill protected speech. See, e.g., Wooley v.Maynard, 430 US 705,51 LEd 2d 752,97 S Ct 1428 (1977). 30. Various states have passed laws seeking to limit the Internet dissemination ofmaterial "harmful to minors." Many of these state dissemination statutes have been invalidatedby federal courts on the basis that the statutes were overbroad and not narrowly tailored, inviolation of the First Amendment or on the basis that such statutes burdened interstate commercein violation of the Commerce Clause. See, e.g., Am. Library Ass n v. Pataki, 969 F. Supp. 160(S.D.N.Y. 1997)(New York); ACLU v. Johnson, 194 F.3d 1149 (lOth Cir. 1999)(New Mexico);Cyberspace Commc ns. , Inc. v. Engler, 142 F.Supp. 2d 827 (E.D. Mich. 2001)(Michigan);Bookfriends, Inc. v. Taft, 223 F.Supp. 2d 932 (S.D. Ohio 2002)(0hio); Am. Booksellers Found v.Dean, 342 F.3d 96 (2nd Cir. 2003)(Vermont); PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.2004)(Virginia); Southeast Booksellers Ass n v. McMaster, 371 F.Supp. 2d 773 (D.S.C.2005)(South Carolina). 31. The State of Indiana claims that its child solicitation statute, as it pertains to theInternet, is constitutional even though its arbitrary and discriminatory enforcement in adultvenues has a chilling effect on protected speech. By knowing that the State is conductingenforcement activities in these adult venues against individuals who are not violating the statute,others who would otherwise conduct their constitutionally protected activities are remainingsilent in order to avoid punishment. "Extraordinary harm and a serious chill upon protectedspeech may result where, as here, a prosecution is a likely possibility but only an affirmativedefense is available, so that speakers may self-censor rather than risk the perils of trial." Cf
  30. 30. Playboy Entertainment Group, 556 F2d 9 at 817, 146 LEd 2d 865, 120 S Ct 1878. This forcedsilence impinges on the First Amendment right of adults to make and obtain this speech, and, forall intents and purposes, "reduce[s] the adult population [on the Internet] to reading only what isfit for children." Butler v. Michigan, 352 US, at 383, 1 LEd 2d 412, 77 S Ct 524. The FirstAmendment does not tolerate such interference. See ibid 32. It is well established that a credible threat of present or future criminalprosecution will confer standing. See, e.g., Virginia v. Am. Booksellers Ass n, Inc. , 484 U.S.383, 392-93 (1988)(holding that the injury-in-fact requirement was met, in part, because"plaintiffs have alleged an actual and well-founded fear that the law will be enforced againstthem"). A speaker who fears prosecution may engage in self-censorship, which is itself anotherinjury, see Am. Booksellers, 484 U.S. at 392 ("[T]he alleged danger of [the challenged] statute is,in large measure, one of self-censorship.); see also Ashcroft v. ACLU, 542 U.S. 656, 670-71(2004)("Where a prosecution is a likely possibility ... speakers may self-censor rather than riskthe perils of trial. There is a potential for extraordinary harm and a serious chill upon protectedspeech."). "[W]hen dealing with ... statutes that facially restrict expressive activity by the class towhich the plaintiffbelongs, courts will assume a credible threat of prosecution in the absence ofcompelling contrary evidence." Gardner, 99 F.3d at 15 (citing Babbitt, 442 U.S. at 301-02;Bolton, 410 U.S. at 188; Am. Booksellers, 484 U.S. at 392-93; Chamber of Commerce of US. v.FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995); Wilson v. Stocker, 819 F.2d 943, 946 (lOth Cir.1987)). 33. Regardless of the strength of the governments interest in protecting children,"[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be
  31. 31. suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 US 60,74-75,77 LEd 2d469, 103 S Ct 2875 (1983). 34. In 2002, the U.S. Supreme Court struck down portions of the Child PornographyPrevention Act of 1996, Section 2251, Title 18, U.S. Code, et seq. which extended the federalprohibition against the possession of child pornography to sexually explicit images that werecreated without depicting any real children. Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389,1396 (2002). The Act defined child pornography to include "any visual depiction" that is orappears to be of a minor engaging in sexually explicit conduct. This definition included "virtualchild pornography," which need not include, let alone harm, real children. Id at 1397. TheCourt struck down this portion of the definition, finding that, I contrast to the material in Ferber,child pornography involving fictional children "records no crime and creates no victims by itsproduction." ld at 1402. The Ashcroft court held that the Acts prohibition of the possession ofchild pornography that does not depict real children was unconstitutional. 35. A criminal law may violate due process if it fails to give a potential offender fairnotice that his contemplated conduct is forbidden or if it encourages arbitrary enforcement andgives the police too much discretion in determining whether it is applicable to a particularindividual. When the law fails these tests, it is "void for vagueness." Papachristou v. City ofJacksonville, 405 U.S. 156, 162 (1972). Because of its imprecision, a vague statute may alsoinvite arbitrary or discriminatory enforcement. See Southeastern Fisheries, 453 So. 2d at 1353.A statute is not void for vagueness if the language conveys a "sufficiently definite warning as tothe proscribed conduct when measured by common understanding and practices." Hitchcock v.State, 413 So. 2d 741, 747 (Fla. 1982). The manner in which Indianas child solicitation statute,as it pertains to the Internet, is being enforced, violates the due process of individuals who may
  32. 32. be subjected to arrest and prosecution for adult activities that are being conducted within venuesthat are known to be using gateway technology to restrict access to adults. The message that theState of Indiana is giving is that adults are not permitted to engage in adult activities, even whenin adult venues. Again, this has a chilling effect in that these adults may remain silent rather thanrisk prosecution. 36. The need for definiteness is even greater when the ordinance imposes criminalpenalties on individual behavior or when it implicates constitutionally protected rights. States v.Petrillo, 332 U.S. 1, 8 (1947). However the Supreme Court has indicated that a statute that lendsitself to arbitrary enforcement can be void for vagueness even if it gives fair notice of whatconduct it prohibits. See Kolender v. Lawson, 461 U.S. 352 (1983). 37. Statutes that are designed to protect children from inappropriate contact "[do] notprohibit all communications with a minor, nor [do they] prohibit all communications that relateto illegal sexual activity." United States v. Tykarsky, 446 F.3d 458, 482 (3d Cir. 2006). 38. Under exacting scrutiny, "the government may regulate the content ofconstitutionally protected speech in order to promote a compelling interest if it chooses the leastrestrictive means to further the articulated interest." ACLU v. Johnson, 194 F.3d at 1156(quoting Sable Communications ofCalifornia, Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829,106 L. Ed. 2d 93 (1989)). 39. "No man shall be held criminally responsible for conduct which he could notreasonably understand to be proscribed." Healthscript, Inc., v. State, 770 N.E.2d at 816 (quotingUnited States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L.Ed. 989, 946 (1954)). InState v. Downey, 476 N.E.2d 121, 123 (Ind. 1985), [the] Court emphasized that "there must besomething in a criminal statute to indicate where the line is to be drawn between trivial and
  33. 33. substantial things so that erratic arrests and convictions for trivial acts and omissions will notoccur. It cannot be left to juries, judges, and prosecutors to draw such lines." !d. "The statutorylanguage must "convey sufficiently definite warning as to the proscribed conduct when measuredby common understanding." Rhinehardt v. State, 477 N.E.2d 89, 98 (Ind. 1985). The State ofIndiana seems to imply that an individuals activities that take place, or are initiated in, a venuethat is known to that individual to employ, in the case at bar, gateway technology to restrictaccess only to adults, "crosses the line" into conduct that is proscribed. 40. When construing a penal statute, ambiguous language must be construed strictlyagainst the State and in favor of the accused. Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005).Indianas child solicitation statute, as it applies to the Internet, is ambiguous "because itauthorizes or encourages arbitrary or discriminatory enforcement." Healthscript at 815-16.Individuals who confine their conduct to venues known to be restricted to adults may be and arebeing targeted for "arbitrary or discriminatory enforcement." 41. The State of Indiana indicates that adult-oriented conversations should beconducted in Yahoo chat rooms that are tailored for adult-oriented speech. Ex. 7, p. 73, n. 16-25;Ex. 7, p. 88. The government may not condition protected speech in such a manner. It is a factthat all of Yahoos chat rooms are adult chat rooms, as being restricted to users who are adults,that is, at least 18 years of age. "One is not to have the exercise of his liberty of expression inappropriate places abridged on the plea that it may be exercised in some other place." Schneiderv. State, 308 U.S. 147, 163. See also Interstate Circuit v. Dallas, 390 U.S. 676; Bantam Books,Inc. v. Sullivan, 372 U.S. 58. "Whether petitioner might have used some other [forum] .. .is of noconsequence. . .. Even if [another] forum had been available, that fact alone would not justify anotherwise impermissible prior restraint." Southeastern Promotions, Ltd., v. Conrad, 420 US 546,
  34. 34. 556,43 LEd 2d 448, 95 S Ct 1239 (1975). Additionally, Trial Counsel was ineffective andcommitted fundamental error when she failed to object to the States suggestion that otherforums were available. 42. The CDA provided a defense when some form of age verification was used tolimit access to adults. Yahoo has been doing just that, by using gateway technology, since 2005,to limit access to all of their chat rooms only to adults, " ... by inserting screens that verify ageusing ... similar technology. Cf Reno, 521 U.S., at 890, 138 L. Ed 2d 874, 117 S. Ct. 2329(OConnor, 1., concurring in judgment in part and dissenting in part) (calling the age-verificationrequirement similar to a "bouncer [who] checks a persons drivers license before admitting himto a nightclub")." 43. Individuals who are offered communications on the Internet have no obligation,nor can they be forced to, read them. All computers have options which may be taken to avoidoffensive content, and most computers have features that allow the user to block otherindividuals with whom the user does not wish to communicate. "Written messages are notcommunicated unless they are read, and reading requires an affirmative act." Banzhaf v. F C. C.,132 U.S.App.D.C. 14, 405 F.2d at 1100-1102, cert. denied. 44. The defendant has a right to expect that his attorney will use every skill, expendevery energy, and tap every legitimate resource in exercise of independent professional judgmenton behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778,779 (9th Cir. 1994); U.S.C.A. Const. Amend. 6. Counsel owes defendant duty ofloyalty,unhindered by state or by counsels constitutionally deficient performance. 45. The Supreme Court has held that part of the right to counsel is a right to effectiveassistance of counsel. Proving that their lawyer was ineffective at trial is a way for convicts to
  35. 35. get their convictions overturned, and therefore ineffective assistance is a common habeas corpusclaim. To prove ineffective assistance, a defendant must show (1) that their trial lawyersperformance fell below an "objective standard of reasonableness" and (2) "a reasonableprobability that, but for counsels unprofessional errors, the result of the proceeding would havebeen different." Stricklandv. Washington, 466 US 668, 104 S Ct 252, 80 L.Ed. 2d 674 (1984). 46. The "defendant need not show that counsel s deficient conduct more likely thannot altered the outcome of the case," Strickland at 693, but rather "must show that there is areasonable probability that, but for counsels unprofessional errors, the result of the proceedingswould have been different." Strickland at 695-96. 47. Prejudice requirement does not require petitioner to prove that he would not havebeen found guilty. Prejudice in prose motions is not strictly construed. In cases which "counselentirely fails to subject the prosecution s case to meaningful adversarial testing," ineffectivenesswill be presumed under United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d 657, 140 S.Ct. 2039(1984). 48. "Counsel has a constitutional duty to make reasonable investigations or to makereasonable decisions that make particular investigation unnecessary." Strickland v. Washington,466 U.S. 688, 691, 80 L.ed.2d 674, 104 S.Ct. 2052 (1984). The Sixth Amendment requiresinvestigation and preparation, not only to exonerate, but also to secure and protect the rights ofthe accused. Such constitutional rights are granted to the innocent and guilty alike, and failure toinvestigate and file appropriate motions is ineffectiveness. Kimmelman v. Morrison, 477 U.S.365, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986) 49. "A lawyers duty to investigate is virtually absolute, regardless of a clientsexpressed wishes." Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002).
  36. 36. 50. Counsel has the constitutional and professional obligation to conduct aninvestigation into potential mitigating evidence. If counsel conducts an inadequate investigation"that fact would have no effect on the deficient conduct prong of Strickland because counsel hadalready demonstrated ineffectiveness by failing to thoroughly investigate the existence ofmitigating factors." Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005). 51. Judicial scrutiny of counsels performance must be highly deferential. Chandlerv. United States, 218 F.3d 1305 (11th Cir. 2000), cert. denied, 531 U.S. 1204, 149 L.Ed.2d 129,121 S.Ct. 1217 (2001). 52. The customary procedure for challenging effectiveness of counsel under the SixthAmendment is a post-conviction ... motion. United States v. Houtchens, 926 F.2d 824, 828 (91hCir. 1991 ). Prejudice is not strictly construed because strict definition "would impose a heavyburden on defendants who are often proceeding prose in an initial. .. motion." Peguero v. UnitedStates, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(0Connor, J. concurring). 53. Claims should be raised for the first time in [post-conviction] proceedings and noton direct appeal for ineffective assistance. Chappell v. United States, 494 U.S. 1075, 108L.Ed.2d 931, 110 S.Ct. 1800 (1990). The Ninth Circuit declined to address ineffective assistanceclaims on direct appeal because a "more appropriate way to pursue this ... claim is by way ofa ... proceeding" in which "a record may be developed to show what counsel did and resultingprejudice." United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991); United States v. Hanoum,33 F.3d 1128 (9th Cir. 1994). 54. Issues that rely on evidence outside the record cannot be raised on direct appeal.United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995). Claims of ineffective
  37. 37. assistance of counsel usually cannot be raised on direct appeal, because such claims requireevidence not already in the record. Hanoum at 1347. 55. It is obvious that ineffective assistance of counsel is not likely to be raised attrial .... Lambright v. Stewart, 220 F.3d 1022, 1028 n.6 (9th Cir. 2000). 56. In essence, the right to a jury trial guarantees to the criminally accused a fair trialb a panel of"indifferent" jurors. Irvin v. Dowd, 366 U.S. 717,722, 81 S. Ct. 1639, 1642 (1961).A failure to accord an accused a fair hearing violates even minimal standards of due process. Inre Oliver, 333 U.S. 257, 68 S. Ct. 499 (1948). 57. It is the right of a defendant accused of crime to have nothing reach the mind ofthe jury concerning the case except strict legal evidence admitted according to law, and if factsprejudicial to him reach the jury otherwise, it is the duty of the trial judge to withdraw a juror andgrant a mistrial. To hold otherwise would defeat the rules of evidence and rules of procedurethat are carefully designed to give a fair trial. Griffin v. US., 295 F. 437, 439 (3rd Cir. 1924). 58. Emphatic jury instructions to disregard prejudicial publicity is [sic] anunsatisfactory solution. It is difficult, if not impossible, to "unring a bell." When one is told"dont think about elephants," the immediate imagen the mind is an elephant. So goes theeffectiveness of instructions to disregard. US. v. Davis, 904 F.Supp. 564, 569 (E.D. La. 1995). 59. The right to a fair and impartial jury is fundamental. The denial of that right is astructural error that is never harmless. See Arizona v. Fulminante, 499 U.S. 279, 290 (1991). 60. "When a State ops to act in a field where its action has significant discretionaryelements, it must nonetheless act in accord with the dictates of the Constitution - and, inparticular, in accord with the Due Process Clause." Evitts v. Lucey, 469 U.S. 387, 401 (1985).
  38. 38. 61. It has been suggested that the limiting instruction actually compounds the jurysdifficulty in disregarding the inadmissible hearsay. See Broeder, the University of Chicago JuryProject, 38 Neb.L.Rev. 744, 753-55 (1959). Bruton v. US., 391 U.S. 123, 129 (1968). 62. Some judges have expressed doubts about the effectiveness of.. .limitinginstructions or instructions to ignore inadmissible evidence. "The naive assumption thatprejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States,332 U.S. 539, 559, 68 S. Ct. 248, 257, all practicing lawyers know to be unmitigated fiction. "See Skidmore v. Baltimore & Ohio R. Co. , 2 Cir., 167 F.2d 54, Krulewich v. US. , 336 U.S. 440,453 (1949)(Jackson, J., concurring). 63. "Journalistic codes of ethics are all moonshine." 63 Harvard Law Review at 843-44, n. 28; Pennekamp v. State ofF/a., 328 U.S. 331, 366, n. 13 (1946)(Frankfurter, J.,concurring)(quoting H.L. Mencken). 64. Petitioner was, in large part, "tried by newspaper." That is, the jurors were, nodoubt, influenced by the undue publicity about so-called Internet predators. The phrase "trial bynewspaper" can be traced back to Com v. House, 3 Pa.Super. 304, 1897 WL 3994 at *4(Pa.Super., 1897), and an English case, Rex v. Clarke, 27 T.L.R. 32 (KB 1910), which wassummarized in State ofMaryland v. Baltimore Radio Show, 338 U.S. 912,922-23(1950)(Frankfurter, J., dissenting to denial of certiorari). The phrase was also the title of ananonymous Note at 28 Harvard Law Review 605 (April1915). 65. The Constitutional standard that a juror is impartial only ifhe can lay aside hisopinion and render a verdict based on the evidence presented in court is a question of federallaw, ... [citations omitted]. Patton v. Yount, 467 U.S. 1025, 1037, n. 12 (1984).
  39. 39. 66. The question is, is he [the juror] impartial or is he not? He will be unfitted to dojustice to the parties, whether the derive his impressions from reading the newspapers, fromcommon report, from casual conversations with his neighbors, or from hearing witnesses testifyin a court of justice. State v. Webster, 13 N.H. 491,492-3, 1843 WL 2092 (N.H. 1843). 67. The Court must therefore determine whether the pretrial publicity was "soextensive and corrupting" that it must presume "unfairness of constitutional magnitude." UnitedStates v. Nelson, 347 F.3d 701, 707-08 (8 1h Cir. 2003) cert. denied, 543 U.S. 978 (2004); accordUnited States v. Gamboa, 439 F.3d 796, 815 (8 1h Cir.), cert. denied, 127 S.Ct. 605 (2006). 68. It is important to note that the jury ... will be seated through individual voir dire.The court, therefore, will have provided "a method of juror qualification that will promote,through the exercise of challenges to the venire-preemptory and for cause-the exclusion ofprospective jurors infected with prejudice[.]" Groppi v. Wisconsin, 400 U.S. 505, 510 (1971). 69. The States case against Petitioner was founded on its "belief that the Petitionerhad "believed" that he had been communicating with an actual minor, although Petitioner knowthat he was actually communicating with Odier. Thus, the States case was based on speculationofwhat the Petitioner "believed." " ... A conviction based on speculation and surmise alonecannot stand .... " United States v. Santos, 541 F.3d 63,70 (2d Cir. 2008). " ... [and] thegovernment must do more than introduce evidence at least as consistent with innocence as withguilt." US. v. Mulheren, 938 F.2d 364, 372 (2d Cir. 1991). 70. It is well settled that the First Amendment forbids the government to regulatespeech in ways that favor some viewpoints or ideas at the expense of others." Members of CityCouncil v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S. Ct. 2118,2128, 80 L.Ed. 2d 772(1984).
  40. 40. 71. A persons inclinations and "fantasies ... are his own and beyond the reach of thegovernment .... " Paris Adult Theatre I v. Slaton, 413 US 49, 67, 37 LEd 2d 446, 93 S Ct 2628(1973); Stanley v. Georgia, 394 US 557, 565-566, 22 LEd 2d 542, 89 S Ct 1243 (1969). 72. "First Amendment freedoms are most in danger when the government seeks tocontrol thought or to justify its laws for that impermissible end. The right to think is thebeginning of freedom, and speech must be protected from the government because speech is thebeginning ofthought." Ashcroft v. Free Speech Coalition, 535 U.S., at 253, 122 S. Ct. 1389, 152L. Ed. 2d 403. See also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,Inc., 515 U.S. 557, 579, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). ("The very idea that anoncommercial speech restriction be used to produce thoughts and statements acceptable to somegroups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less thana proposal to limit speech in the service of orthodox expression. The Speech Clause has no morecertain antithesis"). 73. The Government raises serious constitutional difficulties by seeking to impose onthe defendant the burden of proving his speech is not unlawful. An affirmative defense appliesonly after prosecution has begun, and the speaker must himself prove, on pain of a felonyconviction, that his conduct falls within the affirmative defense. Ashcroft, 535 U.S. at 256. 74. The government cannot constitutionally premise legislation on the desirability ofcontrolling a persons private thoughts. Constitutional Law 930- speech regulation; Stanley v.Georgia, 394 US 557, 566, 22 LEd 2d 542, 89 S Ct 1243 (1969). 75. The mere tendency of speech to encourage unlawful acts is not a sufficient reasonfor banning it. Free Speech Coalition, 535 U.S. at 253. Because "the Government has shownmore than a remote connection between speech that might encourage thoughts or impulses and
  41. 41. any resulting child abuse," it "may not prohibit speech on the ground that it may encouragepedophiles to engage in illegal conduct." !d. at 253-54. 76. General references to speech repugnant to public mores cannot serve as acompelling government interest sufficient to override constitutional protections of speech. See,e.g. , United States v. Eichman, 469 U.S. 310, 319 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) ("Ifthere is a bedrock principle underlying the First Amendment, it is that the Government may notprohibit the expression of an idea simply because society finds the idea itself offensive ordisagreeable.") (citing Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 242(1980)); United States v. Playboy Entmt Group, Inc., 529 U.S. 803, 826, 120 S. Ct. 1878, 146 L.Ed. 2d 865 (2000)). 77. Any examination of thought or expression in order to prevent publication ofobjectionable material is censorship. Anti-Defamation League of B Nai B Rith v. F C. C., 131U.S.App. D.C. 146, 403 F.2d 169. 78. "Nudity alone is not enough to make material legally obscene." Smith v. State,413 N.E.2d 652; Jenkins v. Georgia, 418 U.S. 153 (1974). 79. The U.S. Supreme Court has ruled that procedural rules should be relaxed for prose litigants. Haines v. Kerner, 404 U.S. 519 (1972). 80. "I do not believe, for example, that any sort of sexual activity portrayed orenacted over the phone lines would fall outside of the obscenity portion of the statute that weuphold, and within the indecency portion that we strike down, so long as it appeals only tonormal, healthy sexual desires as opposed to shameful or morbid ones." Brockett v. SpokaneArcades, Inc. , 472 US 491, 498, 86 LEd 2d 394, 105 S Ct 2794 (1985); Sable v. FCC, 106 LEd2d 93, 492 US 115, 133, 109 S Ct 2829 (1989).
  42. 42. 81. The State is responsible for ensuring that the testimony of its witnesses is truthful.By allowing Odier to provide false testimony regarding Yahoos age restrictions, the informationrequired when creating a Yahoo account, and his acceptance of Yahoos Terms of Service, theState committed Prosecutorial Misconduct. Odier s false testimony was intended to cast thePetitioner in the most suspicious and negative light possible in order to secure a conviction."There is no crueler tyranny than that which is exercised under cover of law, and with the colorsof justice." US. v. Jannotti, 673 F.2d 578, 614 (3rd Cir. 1982). 82. As the United States Supreme Court has noted, the prosecutor represents "asovereignty whose obligation to govern impartially is as compelling as its obligation to govern atall; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but thatjustice shall be done." Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633; 79L.Ed. 1314, 1321]. 83. In Indiana, a defendant may avoid conviction on the basis of a mistake of factonly if the mistake is (1) reasonable and (2) negates the culpability required for the offense. I.C.§ 35-41-3-7 (1998). However, "When the General Assembly amended I.C. § 35-42-4-6, it wasin all likelihood responding to State v. Kemp, 753 N.E.2d 47 (Ind. Ct. App. 2001), trans. Denied.Under the amended version of I. C. § 35-42-4-6, rather than leaving it to litigants or interpretivecourts to find and invoke I.C. § 35-41-3-7s mistake of fact provision when a defendant claimshe or she was mistaken as to the solicitees identity or age, the General Assembly asserted itscompelling state interest in protecting children by proactively removing a mistake of fact defenseby the express terms of the statute itself." Larose v. State, 820 N.E.2d 727; 2005 Ind App Lexis25. However, because it is not possible to know the age of a particular Internet use, removingthe mistake of fact provision of the statute leaves it overbroad, to the point that innocent adults
  43. 43. are, or could be, prosecuted, even when the accused has taken reasonable efforts to ensure hisactivities are confined to a venue where on would reasonably believe that only adults would bepresent. Thus, I.C. § 35-42-4-6 is unconstitutional as it pertains to the Internet. 84. Until gateway technology is available throughout cyberspace ... a speaker cannotbe reasonably assured that the speech he displays will reach only adults because it is impossibleto confine speech to an "adult zone." Thus, the only way for a speaker to avoid liability under[I. C. § 35-42-4-6] is to refrain completely from using indecent speech. But this forced silenceimpinges on the First Amendment right of adults to make and obtain this speech and, or allintents and purposes, "reduce[s] the adult population [on the Internet] to reading only what is fitfor children." Reno v. ACLU, 521 US 821 , 844, 138 LEd 2d 874, 117 S Ct 2329 (1997); Butlerv. Michigan, 352 US, at 383, 1 LEd 2d 412, 77 S Ct 524. [I. C.§ 35-42-4-6] ... arbitrarily curtailsone of those liberties of the individual, now enshrined in the Due Process Clause of theFourteenth Amendment, that history has attested as the indispensable conditions for themaintenance and progress of a free society. Butler, at 384. 85. Trial Counsel did not grasp the basics of the charges against Petitioner. " [I}f anattorney does not grasp the basics of the charges and the potential defenses to them, the accusedmay well be stripped of the very means that are essential to subject the prosecution s case toadversarial testing." Scarpa v. Dubois (C.A.l, 1994), 38 F.3d 1, 10; cf. Rinehart v. Brewer(C.A.8, 1977), 561 F.2d 126, 131-132. 86. Petitioner asserts that the cumulative effect of the constitutional violations setforth [herein], plus other factors, amount to constitutional error. In some cases, although nosingle trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several
  44. 44. such errors may prejudice a defendant to the extent the conviction must be overturned. UnitedStates v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). 87. "A plain error must be clear and obvious, highly prejudicial and must affectsubstantial rights." United States v. Siu Kuen Ma, 290 F .3d 1002, 1005 (9th Cir. 2002) (citationsand internal quotations omitted). Under the plain error standard, "we may reverse [the]conviction only if the prosecutors improper conduct so affected the jurys ability to consider thetotality of the evidence fairly that it tainted the verdict and deprived [the defendant] of a fairtrial." United States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992) (citations and internal quotationsomitted). 88. "The right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments,includes the presumption of innocence." Morgan v. Aispuro, 946 F.2d 1462, 1464 (9th Cir.1991). "To implement the presumption, courts must be alert to factors that may undermine thefairness of the fact-finding process." Norris v. Risley, 918 F.2d 828, 831 (9th Cir. 1990)(quotations omitted). 89. There were numerous errors encountered with Petitioners trial and appeal, asenumerated herein. " ... [T]he errors considered together amount to a cumulative error requiringreversal..."; see Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d481 (2007), and Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). 90. [T]o demonstrate cumulative error, petitioner must establish that at least twoerrors were committed in the course of the trial and that when considered together along with theentire record, these errors so severely infected the jurys deliberations that denied petitioner afundamentally fair trial. Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000).
  45. 45. 91. "Waiver is different from forfeiture. Whereas forfeiture is the failure to make thetimely assertion of a right, waiver is the intentional relinquishment or abandonment of a knownright." United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,464,58 S. Ct. 1019, 1023,82 L. Ed.1461 (1938)). Petitioner has never intentionally relinquished or abandoned his rights. 92. [A]n appellant who seeks to prevail on plain error review must show that: (1) anerror occurred; (2) the error was plain; (3) the error affected his substantial rights; and (4) theerror is one seriously affecting the fairness, integrity or public reputation of judicial proceedings,such that the Court should exercise its discretion to correct the error, Johnson v. United States,520 U.S. 461,466-467, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) 93. A person who: (1) Makes a false, material statement under oath or affirmation,knowing the statement to be false or not believing it to be true; or (2) Has knowingly madetwo (2) or more material statements, in a proceeding before a court or grand jury, which areinconsistent to the degree that one (1) of them is necessarily false; commits perjury, a Class Dfelony. (b) In a prosecution under subsection (a)(2) of this section: (1) The indictment orinformation need not specify which statement is actually false; and (2) The falsity of astatement may be established sufficient for conviction, by proof that the defendant madeirreconcilably contradictory statements which are material to the point in question. I. C. § 35-44-2-1(a) and (b). 94. If a witness so testified as to create a false impression as to the existence ofmaterial facts, he could be guilty of perjury. State v. Wilson, 156 Ind. 343, 59 N.E. 932, 1901Ind. LEXIS 50 (1901).
  46. 46. 95. Peijury occurs when a witness, testifying under oath or affirmation, "gives falsetestimony concerning a material matter with the willful intent to provide false testimony, ratherthan as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S.87, 122 L. Ed. 2d 445, 113 S. Ct. 1111 (1992). 96. Nothing can destroy a government more quickly than its failure to observe its ownlaws, or worse, its disregard ofthe character of its own existence." Mapp v. Ohio, 367 U.S. 643,659, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). 97. Society has important and substantial interests which require the admission of allrelevant and reliable evidence in a criminal prosecution. See, e.g., Bivens v. Six Unknown Fed.Narcotics Agents, 403 U.S. 388, 411, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (Burger, C.J.,dissenting); United States v. Janis, 428 U.S. 433, 447, 96 S. Ct. 3021, 3029, 49 L. Ed. 2d1046 (1976); Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 1250, 51 L. Ed. 2d 424 (1977)(Burger, C.J., dissenting). The most notable social interest which favors admission of evidenceis the concept that the trier of fact performs a truth-seeking function for both society and theaccused. The truth seeker can perform its essential social function of issuing accurateadjudications of factual guilt or innocence only if the law insures the presentation of the fullestrange of relevant evidence to the trier of the facts. See, Brewer v. Williams, 430 U.S. 387, 422,97 S. Ct. 1232, 1251, 51 L. Ed. 2d 424 (1977) (Burger, C.J., dissenting). 98. "In a government oflaws, existence ofthe government will be imperilled [sic] if itfails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher.For good or for ill, it teaches the whole people by its example. Crime is contagious. If theGovernment becomes a lawbreaker, it breeds contempt for law; it invites every man to become alaw unto himself; it invites anarchy. To declare that in the administration of the criminal law the
  47. 47. end justifies the means-to declare that the Government may commit crimes in order to secure theconviction of a private criminal-would bring terrible retribution. Against that pernicious doctrinethis Court should resolutely set its face." Olmstead v United States, 277 US 438, 485, 72 LEd944,48 S Ct 564, 66 ALR 376 (1928) (dissenting opinion). 99. "Miscarriage of justice" refers to a narrow exception delineated in Murray thatpermits [ ... ] courts to excuse procedural default upon a showing that a constitutional violation"has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at496. To establish a claim of actual innocence, a petitioner must show "a fair probability that inlight of all the evidence ... the trier of facts would have entertained a reasonable doubt of hisguilt." Kuhlmann v. Wilson, 477 U.S. 436, 455 n.l7, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1985).This includes not only evidence that was arguably wrongly excluded but also evidence that wasillegally admitted. See id 100. Police officers do not have "unbridled discretion" to rummage through peoplesbelongings. Warren v. State, 760 N.E.2d 608, 610 (Ind. 2002). In Warren, we concluded thatlanguage from a warrant authorizing officers to seize "any other indicia of criminal activityincluding but not limited to books, records, documents, or any other such items" violated theFourth Amendment. "[a] warrant may contain a catchall phrase as long as it sufficiently limitsthe discretion of the officers in executing the warrant." United States v. Brown, 832 F.2d 991 ,996 (7th Cir. 1987) (citing Andresen v. Maryland, 427 U.S. 463,479-82, 96 S. Ct. 2737, 49 L.Ed. 2d 627 (1976)). 101. Any Conclusion of Law may be construed as a Finding of Fact if the context sowarrants.