Man Faces Federal Trial on Child Porn Charges Despite Conviction on State Charges

November 22, 2010 by David S. Seltzer

As an Orlando child pornography criminal defense attorney, I was very interested in a recent article suggesting that a Florida man may face violations of his Fifth Amendment rights in a trial on child pornography charges. Florida Today reported Nov. 18 on the Orlando federal trial of a Brevard County man who was already convicted in state court of molesting his adoptive daughter and taking pornographic pictures of her. Robert Howard reached a plea bargain with Brevard County prosecutors in 2009 on one count of sexual battery to a child and one count of possession of child pornography. However, he could have faced more than ten times as much prison time if he had been tried, the article said, which upset the victim, her legal guardian and other observers. This may have been the basis for the federal government to bring charges for the same conduct.

Howard and his wife were foster parents for at least 36 children from 2000 to 2002, but their license was revoked in 2003 after allegations of locking children up were substantiated. Two months after the license was revoked, the biological mother of two former foster children dropped them off at the Howards’ home. Despite the revocation, the Howards got permission to foster and then adopt the children, both girls. In 2005, Howard’s adult stepson called DCF to report physical abuse and suspicions of sexual abuse of one of the daughters, then 12. The girl told investigators that Howard had showed her pornography and asked her to flash him. After an investigator found multiple pictures of the girl, partially undressed, on Howard’s computer, she told the police he had molested her many times. He was arrested on 70 counts of sexual battery on a child and several child pornography counts, with a maximum sentence of life in prison.

Nonetheless, the article said, the state’s case against Howard was weak. According to documents from the state case, the victim had alleged abuse by past foster parents, but investigations by DCF found that the allegations were not true. This would have weakened her credibility in court. The head of the Sex Crimes Division for the State’s Attorney’s office said the evidence did not support the life sentence the victim wanted. As a result, the state agreed to four years in prison and a lifetime of sex offender restrictions on Howard, who was labeled a sexual predator. The victim and her guardian are upset that they were not consulted on the plea, which one attorney said was required by Florida’s Constitution. Documents suggest that investigators felt the same. The U.S. Attorney’s office in Orlando specifically cited the state court’s failure to hand down a stronger sentence when it started the new child pornography case against Howard, which could get him up to 10 years in prison.

Howard’s attorney is reportedly objecting on the grounds that Howard should not be tried for the same crimes in both state and federal court -- indeed, he is arguing that he was told he would face no federal charges if he took the plea bargain, though the state denies it. As a West Palm Beach child pornography criminal defense lawyer, I am interested because the double prosecution may violate Howard’s Fifth Amendment right against double jeopardy. The Constitution says no person may be subjected to prosecution for the same penalty twice. Incredibly, courts have found that this does not always apply to dual prosecutions in state and federal courts. However, in making that decision, the courts have also said a dual prosecution violates defendants’ rights when it is “a sham on behalf of the sovereign first to prosecute.” That is, if the federal government is prosecuting on behalf of the state government, it is probably violating the Fifth Amendment right against double jeopardy.

Judging by the facts in the article, Howard can probably make that argument. After all, the U.S. Attorney’s office is quoted as saying “If the defendant had been convicted on that charge [capital sexual battery] and received the mandatory imprisonment sentence of life, Wilson would not have proceeded on the federal case for possession of child pornography.” As a Miami-Dade child pornography criminal defense attorney, I think that’s a clear indication that the federal government is prosecuting at the behest of the state government, which apparently is unhappy with the way it handled the case the first time around. If that’s the case, this prosecution may be nothing more than an end-run around Robert Howard’s Constitutional rights. We may not approve of Howard’s actions, but the rule of law and civil rights should not have exceptions, even -- or especially -- when the defendant is accused of especially heinous and widely reviled crimes.

If you’re facing charges related to child pornography or any other child sex crime, it’s essential to get experienced representation as soon as possible. Attorney David Seltzer is an experienced cyber crime defense attorney and former cyber crime prosecutor who understands how technology and the law intersect, even when prosecutors don’t. To learn more or set up a free consultation, call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email today.