Friday, May 02, 2008

Case o' The Week: Bad facts make bad law, Stoterau and Conditions of Supervised Release for Sex Crimes

In a very disappointing decision, Judge Ikuta upholds a laundry-list of supervised release conditions for child porn cases; and, specifically, polygraphs and Abel screening. See United States v. Stoterau, __ F.3d __, 2008 WL 1868997 (9th Cir. Apr. 29, 2008), decision available here. This is a particularly troubling tolerance of the Abel hocus-pocus, which one court has described as having factors that could have been cooked up at Hogwarts.

Hard-fought appeal by CD Cal AFPDs Jonathan Libby and Kathryn Young.

Facts: 26-year-old Stoterau convinced 14-year old John Doe into posing for sexually-explicit pictures, which were then uploaded to a web-site. Id. at *1. Customers visiting this site would contact Stoterau, and Stoterau would drive the boy to their locations. Id. Doe would have sex with the customers for money, and Stoterau would get a cut. Id.

Stoterau was charged with and pleaded guilty to transporting child porn. Id. He raised many challenges to both his sentence and conditions of supervised release.

Issue(s): (Among many other issues): “Condition 12 [of supervised release] . . . specifies that Stoterau must submit to polygraph and Abel testing.” Id. at *8. (“Abel testing is a diagnostic exam for sex offenders that studies ‘visual reaction time.’”) Id. at *9.

Held: 1. Regarding polygraphs: “[T]he polygraph prong of Condition 12 does not infringe on Stoterau’s Fifth Amendment rights because Stoterau will retain these rights during his polygraph exams . . . if Stoterau receives a question during his polygraph exam which calls for him to provide an answer that would incriminate him in a future criminal proceeding, Stoterau retains the right to invoke the Fifth Amendment privilege and remain silent.” Id. at *8. “Stoterau is not entitled to receive Miranda warnings before undergoing polygraph examination pursuant to Condition 12 of his supervised release.” Id. at *9.

2. Regarding Abel Screening: “[W]e conclude that Abel testing does not implicate a particularly significant liberty interest, and thus does not require the district court to make the heightened findings required by Williams and Weber [the “antipsychotic drugs” and “penile plethysmograph” decisions.] Id. at *10.

Of Note: Judge Ikuta’s Stoterau decision (joined by Judges Wallace and Gould) is so disappointing on so many fronts it is hard to know where to start. The decision interprets relevant conduct broadly, id. at *3, tolerates a perfunctory recital of the Section 3553 analysis by the sentencing court, id. at *4-*5, gives de facto “reasonableness” deference to an in-guideline sentence, id. at *6-*7, does not fairly grapple with the junk science known as “Abel testing,” id. at *11, allows broad distribution of the PSR despite the shrink-patient privilege, id. at *15, and refuses to use a pseudonym in the opinion to protect the defendant while he is in custody, id. at *18. The opinion is grim – but important – reading for a child-porn client weighing his options and evaluating the value of a (c)(1)(C) deal.

How to Use: Abel screening has all the scientific rigor of phrenology. The Abel test is based on a trick: the person tested thinks they’re evaluating the attractiveness of projected images. “The subject is supposed to think that the paper-and-pencil test is the actual test, but the critical portion of the test calculates how long the subject gazes at the slide. It is this measure of [visual reaction time] that is used to determine the subject’s sexual interest in the various categories of adults and children shown in the slides.” Id. at *9.

If the subject knows the trick, though, the test doesn’t work – as recently conceded by Sharper Future in a case here in the Northern District of California. Thus, make sure every child porn client carefully reads page *9 of Stoterau, and thoroughly explain Abel screening in detail before supervision – well-informed clients cannot be effectively Abel-tested. In a sweet irony, a decision that touts “the public’s common law right of access to judicial proceedings,” id. at *17, can be used to nullify the very testing method that it tolerates on supervised release.

For Further Reading: Dr. Gene Abel has a full-service shop: for the low-low price of $250 you can get “certified” and pick from a laundry lists of handy official-sounding “clinical certifications.” See price list here. The good doc is teaching at a one-day training on May 17th in San Francisco. See plug here. Let’s go! A real scientist shouldn't mind a few members of the defense bar taking notes, right?

Here’s a great article to discuss at the San Francisco training, reporting one court’s description of the Abel test’s proprietary formulas: “For all we know, they and their components could be mathematically based, founded upon indisputable empirical research, or simply the magic of young Harry Potter's mixing potions at the Hogwarts School of Witchcraft and Wizardry.” Article available here.

Steven Kalar, Senior Litigator at N.D. Cal. FPD. Website at


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Anonymous Anonymous said...

I will have to re-read U.S. v. Cope, but I thought that case at least implicitly held that Abel testing requires Wiliams-type findings before it can be ordered.

Friday, May 02, 2008 2:57:00 PM  

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