Memorandum of Points and References in Support of Petition for Post Conviction Relief
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Memorandum of Points and References in Support of Petition for Post Conviction Relief

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Memorandum of Points and References in Support of Petition for Post Conviction Relief Memorandum of Points and References in Support of Petition for Post Conviction Relief Document Transcript

  • STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURT ) CRIMINAL DIVISION 3 ~COUNTY OF MARION )JEFF HOWELL ) ) 49G03-0807-PC-158636 FILED vs. ) ) ) ( ( g c 2 5 2011 , (/liiG fjpfi0STATE OF INDIANA ) CUM~ oJ.rtf~ ~~~N Cl~ MEMORANDUM OF POINTS AND REFERENCES IN SUPPORT OF PETITION FOR POST CONVICTION RELIEF Comes now the Petitioner, Jeff Howell, prose, and files his Memorandum of Points andReferences in Support of Petition for Post Conviction Relief in the above cause. 1. Indianas child solicitation statute, as it pertains to the Internet, was created inresponse to the "moral" or "techno" panic propagated by the media and law enforcement in theearly to mid 2000s. One of the most popular misquoted or misused pieces of information iswhat is commonly referred to as the "I in 5" or "1 in 7" figure, which refers to two studiesconducted by the University ofNew Hampshires Crimes Against Children Research Center(UNH-CCRC). These two studies concluded that "1 in 5" (19%) or "1 in 7" (13%) of the studyparticipants, youth ages 10-17, had received some form of "solicitation" on the Internet duringthe year preceding the study. Law enforcement and the media misconstrued these figures, andbegan publicizing the information based upon the assumption that the "solicitations" were fromadults who had contacted the minors seeking sexual relations. One television network went asfar as to create a show to sensationalize the "threat" (NBC Dateline: To Catch a Predator). TheUNH-CCRC has since attempted to correct this misinformation by clarifying that the"solicitations" referred to in the study included any type of unwanted contact regardless as to henature (such as bullying, harassment, etc.) and the fact that few were from adults, and that nearly
  • half (48%) of the "solicitations" came from other juveniles, man of them known to the studyparticipant. Ex. 39. 2. "Over the last decade, much of the Internet safety material, [as] well asinformation still present on many state attorneys general web sites, and in instruction materialthey provide, contains disinformation that creates the fear that young people are at high risk ofonline sexual predation, when the actual research and arrest data indicates the opposite. There isa tendency among law enforcement officials to think that scare tactics are effective in reducingrisk behavior. Research has never found this to be so. [ ... M]aterial.. .on the Internet web site ofthe attorney general ofNorth Carolina and ... Nebraska demonstrate [that] law enforcement seeksto inculcate fear." Ex. 20. 3. Considerable effort has been made to clarify and debunk the myths andmisinformation being propagated about Internet safety. Ex. 20, 22-31, 39. 4. "[T]he ISTTFs 1 Research Advisory Board conclusively proved the primaryonline safety issue today is peer-on-peer cyber-harassment, not adult predation." Ex. 30, p. 173. 5. Susan Brenner currently serves as Associate Dean and Professor of Law at theUniversity of Dayton School of Law in Dayton, Ohio. She has studied the area of cybercrimesextensively and offers the following information as a result of her studies: "A number of statesmake it a crime to use a computer to solicit or lure a minor to engage in an unlawful sex act.Since most, if not all, states have generic statutes that make it a crime for an adult to solicit sexfrom a child, and since these generic solicitation statutes would presumably encompass use of acomputer for this purpose, these statutes appear to be redundant. States clearly do not agree,however, because bills have been introduced to add cyber-solicitation statutes to codes which donot already have them. For some reason, one state [Indiana] makes it a more serious offense to1 Internet Safety Technical Task Force
  • use a computer to solicit a child than to do so in person." Emphasis added. Susan W. Brenner,Cybercrime Legislation in the United States of America: A Survey, 7 RICH. J.L. & TECH. 28(Winter 2001 ), at http://www.richmond.edu/jolt/v7i3/article2.html. 6. Legal services for the poor are severely underfunded. Substantially moregovernment dollars are spent on the prosecution than on the defense. Prosecutors enjoy theadditional resources of having their investigatory work done by law enforcement. Studiesconclude that money can have a big impact on jury verdicts because money buys investigativeresources, which make a difference in jury trials. Alan Dershowitz thinks providing more legalresources to indigent defendants would make the playing field level. He recommends that "allindigent defendants ... who have a large team of prosecutors, police, and experts arrayed againstthem" be given "a reasonably comparable defense team." Increasing the resources of indigentdefendants, in his view, would strengthen the adversary process, making it more likely toproduce both truth and equal justice." Citation: CliffsNotes.com, Ineffective Assistance ofCounsel. 21 Jun 2010 http://www.cliffsnotes.com/study_guide/topicArticleld 10065,articleld-10032.html. 7. Forty-four percent (44%) of online "aggressive sexual solicitations" of youths arenow coming from other youths under age 17 that the victim knows in real life (Wolak, J.,Mitchell, K., & Finkelhor, D. (2006). Online victimization of youth: Five years later. NationalCenter for Missing and Exploited Children Bulletin- #07-06-025. Alexandria, Va.). 8. "The publicity about online predators who prey on naive children using trickeryand violence is largely inaccurate." Wolak, J., Finkelhor, D., Mitchell, K., & Ybarra, M. (2008)American Psychologist, 63, 111-128. Copyright APA. See http://content.apa.org/journals/amp. View slide
  • 9. With all the media hype regarding the so-called "problem" of Internet predation,it would be very difficult, if not impossible, for an individual charged with such a crime, to get afair trial as guaranteed by the U.S. and State constitutions. This has the same effect as pre-trialpublicity. 10. Experiments conducted by Roberts and Doob (1990), Moral and Cutler (1991)and Riedel (1993), show that pretrial publicity can affect a potential jurors or judges decision.A jury must determine the case before it based on admissible evidence before the court, and noton prejudicial information from outside. Petitioner did not receive a fair trial due to "pretrialpublicity" in the form of media hype regarding the myth of Internet predation. Jurors wouldhave a preconceived opinion, based on this media hype, that Petitioner was guilty simply becauseof the way the "problem" has been sensationalized by the media. Thus, Petitioners right to afair trial under the U.S. and Indiana Constitutions was violated. 11. There is an abundance of research that raises serious doubt about the assumptionthat a jury can separate evidence from other material. Further, the same research challenges theassumption that a trial judge can somehow minimize the impact of prejudicial publicity. See,e.g., Ellsworth, P.C., "Some Steps between Attitudes and Verdicts", in Reid Hastie (ed.), Insidethe Juror: The Psychology ofJuror Decision-Making, Cambridge Uni Press, 1993, pp. 42-64;Casper, J D and Benedict, K.M., "The Influence of Outcome Information and Attitudes on JurorDecision Making in Search and Seizure Cases" in Reid Hastie (ed.), above, pp. 65-83; Ogloff, J.and Vidmar, "The Impact ofPre-Trial Publicity on Jurors," (1994) 18 Law & Human Behavior507-25. 12. Although the majority of the public discussion involving sexual contact crimesconcerns adult-to-minor solicitation, and the typical image of an online predator is an older male View slide
  • (Wolak et al. 2008b), the reality is that most of the time solicitors are youth or young adults; 43%ofthe perpetrators of sexual solicitation are known to be other minors, 30% are between 18 and25, and 18% are of unknown age (Wolak et al. 2006). In a small number (14%) of cases, thevictim knew the perpetrator prior to the incident (Wolak et al. 2006). 13. Internet-initiated sexual encounters between an adult and adolescent are unlikelyto be violent. In a nationwide survey oflnternet-related contact crimes against youth reported bylaw enforcement, only 5% of incidents involved violence (such as rape), and none involved"stereotypical kidnappings in the sense of youth being taken against their will for a long distanceor held for a considerable period of time" (Wolak et al. 2004: 424.e17). Similarly, despiteanecdotal reports (Quayle and Taylor 2001), cyberstalking-a crime where offenders locateyouth offline using information found online (Jaishankar et al. 2008}--appears to be very rare(Wolak et al. 2008b). 14. It is important to recognize the role that some youth-particularly older teens-play in [Internet] relationships. This is an important policy issue, because "if some young peopleare initiating sexual activities with adults they meet on the Internet, we cannot be effective if weassume that all such relationships start with a predatory or criminally inclined adult" (Hines andFenkelhor 2007: 301). 15. Given the anonymity of communication, it is often difficult for youth to assess theage of solicitors, but youth reported that they believed that 43% of solicitors were under 18, 30%were between 18 and 25, 9% were over 25, and 18% were completely unknown (Wolak et al.2006). 16. Though some solicitations are designed to lead to an offline sexual encounter,very few actually do. Some of this contact can be understood as "flirting" (McQuade and
  • Sampat 2008; Smith 2007), and many solicitations are simply meant to be harassing (Biber et al.2002; Finn 2004; Wolfe and Chiodo 2008). 17. Fears of predators predate the Internet and were a source of anxiety aroundchildrens access to public spaces in the 1980s (Valentine 2004). Although the use of"strangerdanger" rhetoric is pervasive, it is not effective at keeping kids safe (McBride 2005). Moreimportantly, 95% of sexual assault cases reported to authorities are committed by familymembers or known acquaintances (Snyder and Sickmund 2006). In a study of Internet-initiatedsex crimes reported to law enforcement, 44% of crimes were committed by family members and56% were committed by people known to the victim offline, including neighbors, friends parents, leaders of youth organizations, and teachers; known cases involving strangers areextremely rare (Mitchell et al. 2005b). In other words, the threat of Internet-initiated sex crimescommitted by strangers appears to be extremely exaggerated (Finkelhor and Ormrod 2000). 18. Few solicitations result in offline contact. (Wolak et al. 2008b). 19. Youth typically ignore or deflect solicitations; 92% ofthe responses amongst LosAngeles-based youth to these incidents were deemed "appropriate" (Rosen et al. 2008). 20. Not all solicitations are from strangers; 14% come from offline friends andacquaintances (Wolak et al. 2006, 2008b). 21. Youth identify most sexual solicitors are being other adolescents (48%-43%) oryoung adults between the ages of 18 and 21 (20%-30%), with only 4%-9% coming from olderadults and the remaining being of unknown age (Finkelhor et al. 2000; Wolak et al. 2006). 22. One of parents greatest fears concerning online safety is the risk of "predators."This topic is the center of tremendous public discourse and angst (Marwick 2008) and attractsviewers nationwide to the popular TV show To Catch a Predator. In 2007, more than half
  • (53%) of adults agreed with the statement that "online predators are a threat to children in theirhouseholds" (Center for the Digital Future 2008). Embedded in this fear are concerns about thethreats of online sexual solicitation and the possibility that these will lead to dangerous offlineencounters between youth and predator adults. Online Threats to Youth: Solicitation,Harassment, and Problematic Content, Literature Review Prepared for the Internet SafetyTechnical Task Force, http://cyber.law.harvard.edu/research/isttf, Andres Schrock and DanahBoyd Berkman, Center for Internet & Society, Harvard University. 23. Two experiments to test pretrial publicitys affects on jurors were conducted tocompare results. In the first trial experiment, 78% of jurors who had read the prejudicialpublicity favoured [sic] conviction, while only 55% of those who had read the neutral publicityfavoured conviction. In a similar second trial experiment, 60% of prejudiced jurors convictedthe accused, while only 15% of the neutral jurors did so. The results indicated that theprejudicial effect of pretrial publicity on mock jurors was not restricted to highly artificialexperimental conditions. Trevor B. Roydhouse, BJuris, LLB, University ofNew South WalesFaculty of Law, 2001. 24. Research suggests that pretrial publicity influences trials. "Relationship BetweenPretrial Publicity and Trial Outcomes," Jon Bruschke, Ph.D., and William E. Loges, Ph.D., 1998. 25. "While it is easy and more efficient to simply trust jurors, I doubt the jurors canignore prejudicial information that they read in newspapers or saw/heard on television." PretrialPublicity Prevents a Fair Trial in the USA, Ronald B. Standler, 2004, p. 18,www.rbs2.com/pretrial.pdf.
  • 26. With the debut of programs on cable television that devoted five hours/week tolegal commentary, the problem offmdingjurors who are both intelligent and unbiased was madesignificantly worse. !d. 27. Pretrial publicity in newspapers and television commentary routinely includesinformation that is sensational or inflammatory. Because of the dearth of genuinely novel news,some of these legal commentary programs on television recycle topics of previous discussions,and this repetition may cause potential jurors to "memorize" these facts that will not be evidencein the trial. With nationwide television news channels, e.g., CNN and its subsequent imitators, itis much more difficult to find intelligent people anywhere in the USA who have not heardpretrial "facts" on high profile cases. !d. 28. Research has found: 1. Jury verdicts have been found to be influenced by pretrialpublicity even after jurors have heard all of the evidence, 2. There is a cumulative effect fornegative information, 3. Pretrial publicity can influence a jurors memory and impressions of theevidence contrary to actual testimony, 4. Negative information which is global in its scope andjudgment of a party or a partys actions is more damaging than information that is limited to aparticular facet of the partys actions or the issues, 5. Most of the time jurors, judges, andarbitrators do not believe that they are biased by pretrial publicity accounts and will vehementlydisavow any bias or influence by the publicity. Ironically, jurors will often state that they believethat other people are influenced by pretrial publicity, 6. Pretrial publicity does not generallycause opinions and attitudes to be formed. However, it can frame the issues and cause alreadyexisting attitudes and opinions to be called up in a jurors mind, 7. Jurors and other fact finderstend to believe the contents of news reports unless there is some fundamental reason to mistrustthem, 8. Television exposure and printed articles on the same subject tend to bias potential
  • jurors significantly more often than exposure to print media alone, 9. Repetition of the story orthe message contained in pretrial publicity will cause it to stay in the long-term memory ofpotential jurors over time. "The Effects of Pretrial Publicity," The Advocates, Jury and TrialConsultants, Richard Waites, J.D., Ph.D. and Jan Larson, J.D., Ph.D. 29. Over the past forty years, scientists have studies the effects of pretrial publicityand have found justification for concern by courts and litigants. Information contained in pretrialpublicity has been found to influence evaluations of litigants likeability, sympathy for a litigant,perceptions of a litigants culpability, and, of course, final jury decisions. Field surveys andexperimental studies (under controlled conditions) have been used to study these effects. Oneinteresting study was conducted by Gary Moran and Brian Cutler, two of the most reputable juryresearch scientists in the United States. The researchers ultimately found that even modestamounts of pretrial publicity might prejudice potential jurors and that self-reports of a jurorsimpartiality could not be relied upon. Moran & Cutler, "The Prejudicial Impact ofPretrialPublicity," 21 J. Applied Social Psychology 345-367, 1991. 30. Numerous quotations from court cases have shown that pretrial publicity canreduce a trial to a farce: a) Jurors can form opinions of guilt or innocence from readingnewspapers or watching television before the trial begins; b) Jurors can base their verdict onunreliable, irrelevant, or unfairly prejudicial "facts" presented in newspapers or television,instead of evidence presented in court; c) Jurors can find the criminal defendant guilty, in orderto avoid scorn and ridicule from their family, friends, and neighbors whose emotions have beeninflamed by sensational news coverage. Pretrial Publicity Prevents a Fair Trial in the USA,Ronald B. Standler, 2004, www.rbs2.com/pretrial.pdf.
  • 31. Trials are not a mere pro forma exercise. Trials are not entertainment for theamusement of the curious public; the result of a criminal trial can determine the remainder of adefendants life. ld. 32. A fair trial should be concerned with initially impartial jurors who make theirdecision only on the basis of evidence presented in court, a situation that is obviously corruptedby intense pretrial publicity. Id. 33. The real issue is whether we want fair trials for criminal defendants. Fair trialsaffect everyone in society, not just the few criminal defendants. Id. 34. The U.S.A. has become the land of inflammatory pretrial publicity, injustice, andprolonged litigation. Why do we allow pretrial publicity to poison the minds of potentialjurors ... ? ld. at p. 51. 35. Pretrial publicity remains a real problem that must not be ignored. ld. at p. 54. 36. Minors are exposed to material that some would consider inappropriate but that isnot legally obscene. For example, the Fox television networks popular primetime animatedseries Family Guy frequently contains sexually suggestive content and course language, eventhough the program is rated "TV-14," which indicates that the problem is "not suitable forviewers under 14." One such episode, entitled "The Tan Aquatic with Steve Zissou," theeleventh episode of season five which originally aired on February 18,2007, shows one scene inwhich is appears that Brian is ejaculation on Stewie, the Griffins infant son. 37. Many other network television programs present material similar to that found onFamily Guy, such as FX Networks Sons ofAnarchy, in which one female character often usesthe slang term "pussy" when referring to her vagina. Other similar references include "dick" and"cock" to refer to the penis. Another network television program using similar material is
  • Nip/Tuck. One episode of the animated program South Park that aired on Comedy Central,shows a nwnber of scenes of the father of one of the young children, who is masturbating infront of the computer, preswnably, based on the dialogue, while he is viewing pornographyonline. The conclusion shows what appears to be ejaculate covering the computer, desk, etc.While some of these programs display a "Mature" audience rating, this material is easilyaccessible to minors and cannot be banned. Accord Sable Comm. v. FCC, 106 LEd 2d 93,492US 115, 109 S Ct 2829 (1989); Pacifica Foundation v. FCC, 556 F2d 9, 181 US App. D.C. 132(US App 1977); United States v. Playboy Ent. Gp., 146 LEd 4d 865, 529 US 803, 120 S Ct 1878(2000). 38. In 2003, the Ohio Court of Appeals overturned the conviction of an individualwho had been convicted in 2001 for entries in his personal diary that involved depictions of sexwith fictitious children. His charges were based solely upon his personal journal discovered inhis apartment. Cf State v. Dalton, 153 Ohio App. 3d 286, 2008-0hio-3818. 39. Abductions by strangers "represent an extremely small portion of all missingchildren [cases]." Andrea J. Sedlak, David Finkelhor, Heather Hammer, and Dana J. Schultz,"National Estimate of Missing Children: An Overview," National Incidence Studies ofMissing,Abducted, Runaway, and Thrownaway Children (NISMART), October 2002, p. 7,www.missingkids.com/en_US/docwnents/nismart2_overview.pdf. 40. The vast majority of kidnapping victims were abducted by family, friends of thefamily, or people who had a close relationship with (or the trust of) the minors. Only 115 of theestimated 260,000 abductions-or less than a tenth of a percent-fit the stereotypical abductionscenario that parents most fear: complete strangers snatching children and transporting themmiles away. Jd.
  • 41. A study of cases about missing children in Ohio revealed a similar trend. Of the11,074 documented missing child cases in 2005,just 5 involved abduction by strangerscompared to 146 abductions by family members. 2005 Annual Report, Ohio Missing ChildrenClearinghouse, p. 4; www.ag.state.oh.us/victim/pubs/2005ann_rept_mcc.pdf. 42. It is important to remember that predators cant magically reach through acomputer screen and grab our kids. Social Networking and Age Verification (2007), p. 6., AdamThierer, senior fellow with The Progress & Freedom Foundation and the director of its Center forDigital Media Freedom. 43. Will increased online policing divert resources from offline policing? Stateddifferently, because physical harm to children occurs only through real-world encounters, will afocus on the line component come at the expense of offline policing of real-world harms? !d. atp. 13. 44. "Sex offenders only very rarely sneak into a house in the middle of the night.More often they come through the front door in the day, as friends and neighbors, as Boy Scoutleaders, priests, principals, teachers, doctors, and coaches. They are invited into our homes timeafter time, and we give them permission to take our children on the overnight camping trip, thebasketball game, or down to the Salvation Army post for youth activities." Anna C. Salter,Predators: Pedophiles, Rapists, and Other Sex Offenders (New York: Basic Books, 2003), p. 5,76. 45. One recent study suggests that perception has replaced reality in the minds ofmany in the press and general public, who have increasingly come to believe that strangerabductions account for most missing child incidents. A 2006 analysis of New York Times articlesabout kidnappings, by Glenn W. Muschert, Melissa Yaung-Spillers, and Dawn Carr in the
  • Justice Policy Journal, argued that "the Times disproportionately focuses on stereotypicalkidnapping incidents, while social science data suggest that familial abductions are far moreprevalent." And abduction estimates made by some activists were also "highly exaggerated,"they found. Unsurprisingly, for those reasons, the authors note that various public opinion pollshave revealed that most people believed that abductions by strangers accounted for most missingchild cases even though the exact opposite was true. Glenn W. Muschert, Melissa Young-Spillers, and Dawn Carr, Justice Policy Journal, vol. 3, no. 2, Fall 2006, pp.4-6. 46. 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, Kentucky s equivalent of Indianas 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 alsotook 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. 47. 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.
  • 48. In deciding whether a 1977 radio monologue contained obscenity, JusticeBazelon, concurring, wrote "frankly, I do not see how individual words could ever be foundobscene, even as to children." Pacifica Foundation v. F. C. C. , 556 F2d 9, 29, 181 US App. D.C.132 (US App 1977). 49. I am not clear why the word "tit" is in the FCC s index [of prohibited words]because it is neither a sexual nor excretory organ. Pacifica, 556 at 37 n. 16 (Justice Leventhal,dissenting). 50. The 1977 radio monologue in Pacifica included what its presenter, comedianGeorge Carlin, referred to as "Seven Dirty Words." "The original seven words were, shit, piss,fuck, cunt, motherfucker, and tits." Pacifica, 556 at 38. 51. Any point or reference contained in this memorandum may be considered aFinding of Fact or Conclusion of Law if the context so warrants. WHEREFORE, the Petitioner requests the Court to grant his Petition for Post ConvictionRelief and for all other relief just and proper.
  • CERTIFICATE OF SERVICEI, Jeff Howell, do herby certify that a true and correct copy of the foregoing was served uponJulie Kirchoff, Marion County Deputy Prosecutor, 251 E. Ohio Street, Room 160, IndianapolisIN 46204, this 19th of August, 2011, by depositing in the prison mail system for delivery by U.S.Mail, First Class, postage pre-paid. Petitioner, pro se JeffHowell #194392 New Castle Correctional Facility P.O. Box A New Castle IN 47362