THE INQUIRING LAWYER
RONALD M. SANDGRUND, ESQ., INQ.
"Childhood should be carefree, playing in the sun; not living a nightmare in the darkness of the soul!”1
This is the sixth article series by The InQuiring Lawyer addressing a topic that Colorado lawyers may discuss privately but rarely talk ab out publicly. The topics in this column are being explored through dialogues involving lawyers, judges, law professors, law students, and law school deans, as well as entrepreneurs, journalists, business leaders, politicians, economists, sociologists, mental health professionals, academics, children, gadflies, and know-it-alls (myself included).
These discussions may tread on matters sometimes considered too highly regarded to be open to criticism, or even simple examination. I take full responsibility for these forays, and I recognize that I may be subject to assessment and criticism myself. (Please be gentle!) If you have an idea for one of these columns, I hope you will share it with me via email at rms. firstname.lastname@example.org.
This month's article is the first of a two-part conversation about the effect of the cases lawyers handle on the lawyers themselves. This question is examined within the crucible of the prosecution and defense of child exploitation and sex abuse cases—a difficult subject for most of us even to think about. The discussion's second part will appear in next month's issue. My thanks to my good friends John Haried, Bob Pepin, and Stan Garnett, without whom I would not have been able to put this article together. Also, I am grateful to the many dialogue participants willing to go on the record with their forthright observations and comments regarding a difficult subject. The dedication and talent of both the prosecutors and defense lawyers involved in child sex exploitation cases is a mighty thing to behold.
Katharina Booth is first assistant district attorney for Boulder County. She has been a prosecutor for 19 years, spending her career specializing in crimes against women, especially sexual assault and domestic violence.
Caryn Datz is a chief trial deputy of the sexual assault unit at the Office of the District Attorney for the 20th Judicial District, where she supervises a unit of four attorneys who specialize in felony-level sexual assault prosecution.
Laurie Kepros is the director of sexual litigation for the Colorado Office of the State Public Defender, where she trains and advises more than 500 lawyers across Colorado regarding their representation of adults and juveniles accused or convicted of sexual crimes, including sexual assault on children.
Kathleen McGuire, the former head of the Public Defender's Office for Douglas, Elbert, and Lincoln counties, is now in private practice. She has handled all types of criminal and juvenile delinquency cases. Before becoming a lawyer, she was a social worker for over 10 years, helping people with developmental disabilities and mental illness.
Judy Smith is an assistant U.S. attorney in Colorado and chief of the Cybercrime and National Security Section, where she supervises and prosecutes cyber, national security, and child exploitation cases.
Brenna Tindall, Psy.D., CAC III, is a licensed psychologist with extensive experience evaluating and treating adult and adolescent clients who are involved with the criminal justice system. She specializes in forensic evaluations of individuals in the criminal justice system.
Almost as soon as a friend suggested I look into the issues framed by this article, I started to regret my decision. In my first interview, a prosecutor described spending hours with a law enforcement agent hunched over her shoulders, both staring at a computer screen as she pressed "pause" "rewind" "pause" "rewind" over and over, watching a young child—a baby—being raped. They were looking for clues as to who produced these horrific images. She turned to me and said flatly, "Some men masturbate to this." When my two-hour interview was over, I asked, "Doesn't this job tear at your soul?" She replied, "I don't like to think about that. Anyway, it pales in comparison to what happens to these children."
This article isn't about child porn and other conduct involving the exploitation and sexual abuse of children. It isn't about sex offenders and their pathological impulses, and whether mental health treatment or incarceration is the best response. And it isn't about the fact that no child w ho is subject to such heinous behavior ever fully recovers. But all these matters are bound up in what this article is about: the long-term mental and emotional toll that handling child sex offenses takes on prosecutors and defense counsel.2 This is not a minor or occasional concern: it is a problem that affects every lawyer involved in these cases and that can take a very heavy toll on their sexual intimacy, their relationship with their children, and their job performance. Moreover, layered into the psychic harm these cases cause are the challenges of working within a flawed justice system that often struggles to deal with the underlying offenses.
While reading this piece, put yourself in the skin of these lawyers. Imagine being a prosecutor asking children who were mercilessly exploited by adults to trust you, an adult, to confront the monsters in their lives. Consider the public defender (PD) representing someone accused of horrendous behavior in a case that will come down to a swearing contest between him and a child. From what I heard—on and off the record—there is a clear trade-off between the experience and expertise these dedicated lawyers gain by handling these cases on a regular basis and their long-term emotional health, with no obvious solution for this problem. The only thing I know for sure is that I am grateful to the men and women on both sides who do this work.
Maybe this dialogue can serve as a lens through which we can view not just these lawyers' stories, but also the long-term effects on lawyers regularly handling emotionally trying cases. For those who think that lawyers simply become inured to the graphic nature and gut-wrenching effects of these cases, this article explores why this is simply is not possible.
Part 1 of this dialogue asks why lawyers choose to handle cases involving the most horrific abuse of innocent children, and also whether these lawyers are able to develop a protective shell around the deep emotions such cases elicit. Are there some cases lawyers simply cannot forget—cases that get deeply seared into their memory, and which haunt their dreams? For those lawyers who cannot shut out the images and the sounds and the pain—how does this affect their personal lives, their capacity for intimacy, and their parenting?
Why Do Lawyers Do This Work?
InQ: Judy, what does your job entail, and how did you come to do this work?
Judy Smith: For the past 10 years, the bulk of my work as an assistant U.S. attorney has involved child exploitation cases. This makes up 60% of my current caseload, but used to comprise 100%. I got started when a vacancy opened up—this isn't work many relish doing, so I took up the reins. I've always been mission driven, and I like to do things for their positive effect on others and the community. I saw a gap in law enforcement that needed to be filled. I was willing and able to do this work. Troy Eid encouraged me to get involved, even though the subject matter is horrible. With the advent of sound media and easy file transfers, many more people could access this material, and the exploitation of innocent children exploded. There is something visceral and appalling when the images are coupled with the audio—and then combine that with the recognition that some viewers are getting off on this stuff. Still, it's my job to treat people fairly despite how awful their behavior may be.
InQ: Are their special challenges associated with cyber-porn involving children?
Judy: Yes, I find the cyber-angle intriguing and intellectually challenging. I have learned how operating systems work, how encryption works, how thumbnail images are generated—it is like becoming a new breed of crime investigator and crime solver. My investigation usually starts with the distribution and sharing of Internet child porn. Getting to the producers—the production of the videos—is key, but also very difficult, especially given the crime's international aspects. There are massive amounts of these images and videos being transferred around the world. The National Center for Missing and Exploited Children (NCFMEC) estimates that they have reviewed...