Washington (CNN) – The criminal conviction of a sex trafficker known as the “S&M Svengali” was reinstated by the Supreme Court on Monday.
The case gave the justices a rare visit to the shadowy world of sadomasochism and sex slavery.
The high court by a 7-1 vote allowed the original conviction of Glenn Marcus to stand. He had been sentenced to nine years in prison for the sexual abuse, physical mutilation, and psychological humiliation of a woman who had agreed to be photographed as his “sex slave.”
A federal appeals court in New York had dismissed the entire conviction, saying some of the offenses occurred before the 2000 Trafficking Victims Protection Act, which was used to prosecute Marcus.
But Justice Stephen Breyer said the procedural violations in this case were not so severe to justify throwing out the entire case, since some of the offenses clearly occurred after the law was passed.
“Given the tiny risk that the jury would have based its conviction upon those few pre-enactment days alone,” said Breyer, “a refusal to recognize such an error as a ‘plain error’; [and to set aside the verdict] is most unlikely to cast serious doubt on the fairness, integrity, or public reputation of the judicial system.”
Establishing a clear standard for “plain error” review when setting aside convictions has been a particularly tricky area of law for the Supreme Court in recent years.
Link
See also:
Second Circuit’s “plain error†standard struck down in Marcus (SCOTUSblog)
United States v. Marcus (08-1341) (Legal Information Institute)
ABA: U.S. Supreme Court Update (Criminal Law Library Blog)
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It took a while to register, but there was something naggingly familiar about Bernann McKinney, the 57-year-old California woman whose ecstatically beaming features were splashed across the world’s media on Aug. 6. The story was already a corker: the five baby pitbull terriers McKinney was showing off had been cloned in Korea from the ear of her late and much-missed pet Booger, who’d once saved her from an attack by another dog that had practically ripped McKinney’s arm off.
Now the story could get even better. McKinney, if British newspaper suspicions prove true, may be none other than Joyce McKinney, the former Miss Wyoming who once fled Britain to escape charges of kidnapping a Mormon missionary and forcibly having sex with him.
Britons over a certain age will recall with a shudder the surreal and sexy details of that story from the winter of 1977. The 27-year-old McKinney was accused in court, along with a friend, Keith May, of abducting 21-year-old Mormon missionary Kirk Anderson from a church in a London suburb and taking him to a cottage in Okehampton, Devon in the southwest of England. There, said Anderson, he was chained to a bed and forced to have sex with McKinney for three days. McKinney, once a Mormon herself, was said to have formed a crush on him after they’d first met and had sex in 1975. Anderson tried to break off the relationship but McKinney was infatuated and stalked him to England where he’d asked for a posting as a missionary to escape her attentions.
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TRAC is the Transactional Records Access Clearinghouse, maintained at Syracuse University. In August 2007, there were 62 federal prosecutions of child pornography, according to timely enforcement data from the Justice Department. Though unchanged from the previous month, filings in this category are down by about half (49.7%) from the previous year, and down 20% from five years ago. These declines follow a period of rapid growth for federal child pornography prosecutions which began after President Bush took office.
For reports on the latest enforcement trends, go to:
http://trac.syr.edu/tracreports/bulletins/
In addition to providing counts of the child pornography prosecutions and convictions that occurred in August, similarly timely information is available for many other categories of enforcement such as terrorism, white collar crime, official corruption, drugs, etc. Free reports are also available for major agencies such as the DEA, FBI, IRS and DHS.
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A story about the understaffed Minneapolis Police Department Sex Crimes Unit:
Investigative units measure success by something they call a “clearance rate”—the percentage of reported crimes that lead to an arrest. The 10-year high for the Sex Crimes Unit was 57 percent in 2004. Last year, the rate fell to 26 percent—just 1 percent above a 10-year low.This year, with data available through August, the unit’s clearance rate is 12 percent.Translation: For roughly nine out of every ten rapes reported to the police, there is a victim waiting to hear word of an arrest.
Meanwhile, the number of reported rapes in Minneapolis has been rising steadily—from 362 in 2002 to 453 last year—even as the number of reported rapes nationwide continues a decades-long decline.
Thanks to a Minneapolis reader for sending this.
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A Miami woman who was a former contestant on the reality show “Top Chef” was beaten by attackers yelling anti-gay slurs, her lawyer said Tuesday. (more. . . .)
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In the aftermath of the Duke lacrosse rape case, lawyers in North Carolina are learning lessons from the faulty rush to judgment against three college athletes.
From the start, when players Reade Seligmann, David Evans and Collin Finnerty were wrongfully indicted for raping a stripper in 2006, there was a stampede by the media, some members of Duke faculty and one overzealous prosecutor to prove them guilty, say authors Stuart Taylor and KC Johnson.
In their new book, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, Taylor, a columnist for National Journal, and Johnson, a history professor at Brooklyn College and CUNY, document the facts of the case and how they were misconstrued to assume guilt.
(more . . . + book excerpt)
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Law prof. Dale Carpenter writes:
It’s hard to work up much sympathy for Sen. Larry Craig (R-Idaho). He had a perfect legislative score from traditional-values groups, a zero rating from gay civil-rights groups, supported the Federal Marriage Amendment, and refused even to commit to non-discrimination on the basis of sexual orientation in hiring for his own Senate staff. But what exactly was criminal about his conduct in that Minneapolis airport bathroom? . . .
. . .What really seems to have happened is that the airport police had received complaints about sexual activity and were acting over-zealously to deter it, regardless of the niceties of state criminal law. Many gay men throughout our history have felt the sting of these public decency campaigns, have been arrested for alleged sex crimes, and have pleaded guilty at unusually high rates in order to avoid the embarrassment and other consequences of being outed. When newspapers print their names, as they often do, the consequences can be devastating. Like them, Craig probably wanted to avoid publicity and pleaded guilty to “disorderly conduct” in a futile effort to save his reputation and his job. Whatever we think of Craig’s views on gay rights, or of the cosmic justice in this particular Senator being ensnared in these particular circumstances, it’s difficult to see how he’s a criminal.
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Gina Passarella
The Legal Intelligencer
08-24-2007
The Pennsylvania Superior Court isn’t buying the argument that a man who viewed child pornography on his computer, but didn’t save the images, couldn’t be charged with possession of child pornography.
A 7-2 en banc Superior Court panel in Commonwealth v. Diodoro reversed a prior three-judge panel that found there was not sufficient evidence to show Anthony Diodoro downloaded or saved the images of child pornography he viewed.
In the latest majority opinion, Judge Correale F. Stevens said §6312(d) of the Crimes and Offenses Code, which prohibits the possession of child pornography, clearly states that anyone who “possesses or controls” child pornography is guilty of a third-degree felony.
Diodoro, who freely admits that he viewed at least 30 images of child pornography, argued that he never possessed them.
(more. . . )
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POPE AIR FORCE BASE, N.C. — A court-martial has been scheduled next month for a female airman who says she was charged because she refused to testify against three male airmen she had accused of rape.
The woman is charged with one count of committing indecent acts and one count of consuming alcohol as a minor. The defense says the charges against her involve the same men she accused of raping her.
The military won’t identify the men or confirm whether they were ever charged because the case is pending, base spokesman Ed Drohan said Tuesday.
“The whole thing is a system failure,” said Capt. Christopher A. Eason, one of the woman’s military defense attorneys. “This is unprecedented.”
In letters dated June 7 to the congressional delegations and governors of North Carolina and her native Texas, the woman said she decided not to testify against the three men because she was “under enormous stress.” (more. . .)
[via Feministing]
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Substitute teacher Julie Amero, who had convicting of allow her students to accidentally view pop-up porn, was to have been sentenced today. Instead, her lawyers have successfully moved for a new trial.
From theday.com:
“Judge Hillary Strackbein said the state had conducted further forensic information that the jury had not heard at the trial. The information, according to defense experts, was that the computer had generated pornographic popups and that Amero, a substitute teacher, was not at fault. Amero had been convicted of four counts of risk of injury to a minor and faced up to 40 years in prison.”
BoingBoing has a post relating the defense’s technical expert’s experience:
“We asked the prosecution to arrange for the defense to have unfettered access to the internet so that we could reenact the events of October 19, 2004. It was not granted. I went to court with two laptops and a box full of reference material prepared to very clearly illustrate what happened to Julie Amero. But, the prosecution objected because they were not given “full disclosure” of my examination. I was allowed to illustrate two screens, that of the www.hair-styles.org , and www.new-hair-styles.com sites.
This was one of the most frustrating experiences of my career, knowing full well that the person is innocent and not being allowed to provide logical proof.”
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Alan analyses the upholding of the decision in the Glenn Marcus S/M trial:
Throughout the decision, Judge Ross exhibits a clear and articulate attempt to understand the differences between consensual BDSM and non-consensual criminal activity. She has numerous opportunities where she can take cheap shots at the S/m community by castigating them as freaks. But she does not. In fact, on several occasions, she endorses the rights of adults to legally engage in such activities, so long as there is consent. In this case, however, one of the parties argued that there was no consent. As a result, Judge Ross takes a careful analysis of the claims made by both Marcus and the victim. The judge indicates that the jury also carefully weighed the evidence and thus affirmed the findings of the jury.
Overall, this decision is actually a positive result for activists who support the right to engage in consensual S/m.
(more. . . )
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Howard J. Bashman
A man is arrested in Las Vegas on federal criminal charges of traveling across state lines with intent to engage in a sexual act with a minor and using an interstate communication facility to attempt to persuade a minor to engage in sexual acts. The evidence against the man consists of the transcripts of multiple online chats between the man and a police officer posing as a 14-year-old girl. On the date selected for their meeting, the man traveled from his home in Anaheim, Calif., to Las Vegas, where police apprehended him at the designated meeting place.
At trial, the man seeks to defend against the charges by maintaining that he believed that he was chatting with a 30- to 40-year-old woman who had been pretending to be an underage girl, and that he was expecting to meet that woman at the designated location in Las Vegas. When the man was arrested, he was carrying a personal digital assistant (PDA) containing more than 140 stories that described adults having sex with children. The prosecution sought to introduce many of these stories into evidence at trial, to rebut the man’s defense that he was not intending to meet an underage minor for sex. (more. . .)
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By Jonathan Saltzman, Globe Staff
Published 5/10/07
A Hampden County man who allegedly tricked his brother’s girlfriend into having sex with him by impersonating his sibling in the middle of the night cannot be convicted of rape, the state’s highest court ruled yesterday in a controversial ruling that affirms the court’s long-held view that sex obtained through fraud is no crime.
The Supreme Judicial Court unanimously ruled that a judge should have dismissed the rape charge against Alvin Suliveres, of Westfield, because Massachusetts law has for two centuries defined rape as sexual intercourse by force and against one’s will and that it is not rape when consent is obtained through fraud. (more. . .)
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A Manhattan jury found four women guilty of gang assault for attacking a man outside the IFC Center last summer. The man, Dwayne Buckle of Queens, said that the group of lesbians attacked him because he was straight, while the women contended Buckle had used slurs and threw a cigarette at them – and that another man stabbed him.
Patreese Johnson, who claimed Buckle said, “I’ll f— you straight” to her, was found not guilty of second degree attempted murder, but was found guilty of first degree assault. She faces 5-25 years of prison time, while Renata Hill, Terrain Dandridge, and Venice Brown were found guilty of second degree gang assault, which means 3.5-15 years of prison time. Three of their friends pleaded guilty before trial to lesser counts.
The women were jailed without bail, and the AP reports that State Supreme Court Justice Edward McLaughlin explained to their lawyers, “There’s simply no point in talking. They’re out of state residents facing mandatory prison time.” The women, who are from NJ, called out, “No-oo!†“Mommy!†and “I didn’t do it!†as they were led from the courtroom, and the Post reports that “some of their friends and family members threw water bottles and spat at photographers.” Buckle told the Daily News, “I’m stabbed and I have a scar that will be with me for the rest of my life. They have their jail sentences, but they’ll be out soon. This is what I get for being a nice guy.” Uh, nice guy who called them names, though.
The women’s lawyers said they will appeal and defense lawyer Susan Tipograph added, “These are seven decent and nice young women who came into the city to have a good time. They were hit upon by an abusive homophobic man. Now they’re all going to state prison.”
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