Crime & Federalism

On August 12, 2009, an innocent man was arrested.  After several months of hotly-disputed litigation, the innocent man was finally free.  The police, prosecutors, and experts who were all lined up to send this innocent man to prison will face no consequences.  And so we have another story about the mundaneness of prosecutorial evil.

Before returning home to New York from Venezuela, Carlos Alfredo Simon-Timmerman stopped in Puerto Rico.  He was arrested for possession of child pornography - and he almost went to prison for it - even though a reasonable person could have discovered that the pornography was not illegal.

The man had in his possession: "Little Lupe the Innocent; Don’t Be Fooled By Her Baby Face."  The movie stared noted film actress Lupe Fuentes - who is also know as Wikipedia.  Since 2007, Lupe Fuentes has had a Wikipedia entry.  It's right here for anyone to see.  Anyone could have Googled the name of the alleged child pornography; found Little Lupe; and verified Fuentes' age.

Under 18 U.S.C. Section 2257, all porn producers are required to verify the age of a porn actress.  Every porn production company is required to have a custodian of records.  Under the law, these records must be made available for law enforcement to inspect.

Two months before the innocent man was arrested, Teravision signed Fuentes.  An article that appeared on AVN on June 10, 2009:

VAN NUYS, Calif. — Teravision today announced the signing of Spanish internet sensation Lupe Fuentes to an exclusive performing contract.

Previously known as "Little Lupe," Fuentes made herself a teen model sensation and gained international stardom online. Now, she is ready to parlay that into an even brighter career in the adult video arena.

(Link NSFW.)  Thus, there is no doubt than an American company would have conducted a Section 2257 verification of Fuentes.  No one can claim that there wasn't a way to determine her true age.

Rather than contact the custodian of records, the prosecutor solicited two experts to give her the perjurious testimony she needed for a conviction.

Alek Pacheco, who works for U.S. Customs, claimed that he was an expert on child pornography.  According to Special Agent Alek Pacheco, Lupe Fuentes was between 13-14 years of age.  (See Affidavit.)

AUSA Jenifer Yois Hernandez-Vega also enlisted the help of Dr. Pedro R. Jaunarena:

Based on his numerous years of experience andtraining in treating children, Dr. Jaunarena will provide expert testimony regarding, but notlimited to, the age of the minors depicted in the images in the labels of the DVDs and in thevideo images found in the DVDs seized in relation to this case.

(Notice of Intent to Use Expert Witness at Trial.)  

Had Jenifer Yois Hernandez-Vega had her way, an innocent man would have been sent to prison for possession of child pornography.  This man would have been raped in prison, and for the rest of his life, he would have been a registered sex offender.  

Unlike Jenifer Yois Hernandez-Vega, the innocent man's defense lawyer exercised some diligence.  He researched the movie, finding the porn actress's MySpace page.  The lawyer contacted Ms. Lupes, who verified that she was over 18.

Full stop.

Rather than issuing a subpoena to verify the age of Ms. Lupes, AUSA Jenifer Yois Hernandez-Vega demanded that the adult porn actress personally appear in court.  Ms. Lupes had to fly from Venezula to testify in Puerto Rico.  

After hearing testimony and examining her passport, the trial court ordered the prosecutor to dismiss the charges.  

Monday morning will be business as usual for Jenifer Yois Hernandez-Vega.  She'll pat herself on the back.  "The system worked," she'll brag to colleagues.  After all, the innocent man did not actually go to prison.  That a prosecutor has an ethical duty to actually investigate cases and not indict innocent man will escape her.  In The System, prosecutors file charges and raise hell.  If your defense lawyer cannot protect you, what's it to them?

Yet the innocent man would have gone to prison had he not had an excellent criminal defense lawyer.  The innocent man would have gone to prison because the experts are not indeed experts; and because Jenifer Yois Hernandez-Vega and her team of federal investigators refused to actually investigate the alleged crime.

Although the innocent man spent two months in jail before being able to make bail, Jenifer Yois Hernandez-Vega will not even be given a reprimand.  She'll continue in her unethical ways, and there's nothing anyone will do to stop her.

No one, that is, expect defense lawyers.

The next time someone asks you, "How can you defend those people," ask them: "What if Jenifer Yois Hernandez-Vega had been prosecuting you?"