St. Louis Post-Dispatch Bill McClellan column: Child pornography cases: Measuring the time for the crime
Nov 09, 2008 (St. Louis Post-Dispatch - McClatchy-Tribune Information Services via COMTEX) --
On the morning of Halloween, Mark Shklar came into federal court in an orange jumpsuit, dressed as a prisoner. At least, it seemed like a costume.
He was, at least officially, still a member in good standing of the Missouri Bar Association. The middle rows in the courtroom were filled with his supporters, including his ex-wife and his 21-year-old son. Both spoke movingly on his behalf. So did a couple of attorneys. This is a good and decent man, they said. Then Shklar spoke. He said he was lucky to have family and friends like these. Then the judge sentenced him to 41 months in prison for possession of child pornography.
Carrie Costantin, the assistant U.S. attorney who handled the case, was almost wistful when I spoke with her later.
"The supporters are almost never there when these guys plead guilty," she said. "That's when we go into what they're really pleading guilty to. Instead, they show up for sentencing. It's like we're talking past each other."
Things were more graphic on the day in October when Shklar pleaded guilty. Costantin made it clear that Shklar had not inadvertently downloaded child pornography. He had sought it out on his computer. He had downloaded 24 such videos. The six mentioned in the indictment involved images of preteens.
Still, even on that day, Shklar did not seem like a monster. We spoke in the hallway outside of the courtroom. He was dressed casually. He carried a little plastic bag with his medications. He was ready to go to jail, where he would await official sentencing.
I had met Shklar some time earlier. He had been busted, but not yet indicted. He told me he was 58 and divorced. He didn't date. In the privacy of his apartment, he watched pornography. Eventually, he found child pornography. He mainly watched the adult stuff, but sometimes he searched out the forbidden images of children. He got everything through a file sharing service, so he rationalized that because he wasn't paying for it, he wasn't really supporting the industry.
One day there was a banging at his door. Armed men wearing helmets and visors pushed their way in. Shklar at first thought it was a mistake. He figured they must be looking for drugs. When they told him they were there to look for child pornography on his computer, he realized that the world as he had known it was about to change.
But he had not expected that he would automatically go to prison. Nor had he imagined that the feds could use the fact that he obtained the child pornography through a file sharing system as an enhancement at sentencing. File sharing translates into distribution.
He hired defense attorney Joel Schwartz. "This is the kind of case I hate," Schwartz said. "There is really nothing I can do for him."
Schwartz did as well as could be expected. Had the feds pushed the enhancement with the file sharing system, Shklar could have gotten 96 months.
After meeting Shklar, I started paying attention to these cases. I was surprised to learn that people generally get more time for possession of child pornography than they do for molesting a child. Costantin, who used to work as a county prosecutor, explained that to me. When a person is charged with molesting a child, the defense knows that the parents of the child generally do not want to subject the child to the trauma of testifying, so the defense has an advantage during plea negotiations. In child pornography cases, the defense does not want the jury to see the images or the videos, so the advantage goes to the government.
Perhaps the oddest sentencing I saw was in August when 77-year-old Roderick McArthur received a sentence of 151 months for possession of child pornography. He hobbled into the courtroom hunched over a walker. He was with his wife and daughter. He was given the severe sentence because of his record. In 1986, he had pleaded guilty to child sodomy after inappropriately touching a child. He was given probation. He came to the attention of authorities again in 2006 when a mall security guard spotted him in his car inappropriately touching himself. He was arrested for public indecency. He had a lewd drawing of a child in his wallet. Shortly thereafter, police searched his computer and found the forbidden images. Before his sentencing, McArthur told me he watched a lot of pornography, but no child pornography. He said he didn't know how those images got on his computer.
I am no expert on the "normal" sexual drive of a 77-year-old, but McArthur struck me as abnormal. But should his abnormality result in a life sentence in prison?
Of course, McArthur was the exception. Many of the defendants were closer to Shklar. He had no record. In fact, he had the opposite of a record. He seemed to be respected by everybody.
I talked to a police officer who investigates these things, and he emphasized the fact that these are not victimless crimes. These are real kids, he said. Imagine that this is happening on a stage in an illicit theater, he said, and the people who watch this stuff are all in the audience.
That puts it in a different light, I suppose, but a lot of these fellows wouldn't seek out the theater. They only watch because they can do it in the supposed privacy of their homes. The computer makes it easy.
In fact, as the marshals led Shklar out of the courtroom, I thought of "2001: A Space Odyssey." The computer, Hal, took over the spacecraft. I wish I had asked Shklar if he had ever seen that movie.
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