100 Years for first-time CP offender
A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning.
The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.
Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.
His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.
Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”
The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.
Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts.
He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.
“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.”
Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.
Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”
After brief remarks from both of his parents, Berben, in a short statement, told Maltz “I had nothing to do with this.”
Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”
“That’s not justice,” he said.
Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime.
“I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.
Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively.
Cushman said Berben plans to appeal the sentence.
It seems to me that in order for justice to be served, the state should be required to prove beyond a reasonable doubt that the alleged perpetrator knowingly and intentionally downloaded the images to his or her computer. There are too many means by which an outside actor can dump files onto another person’s computer.
I say this from personal experience from the attempt which was tracked by a security software program which prevented the download by tracked the attempt. If you do not have an application such as that, you can easily find someone attacking you without your knowledge.
There are too many problems or flaws with the conviction and sentencing in the instant cause.
File sharing programs are plain trouble! The fact is most US and many Euro including East Block file sharing Companies are either watching and reporting suspicious activity or when a investigation begins.. they give up your ID and activity. All the State needs is forensic proof that he was using the program to download illegal material. At that point cops setup their own communication between suspect and perpetrate a sting.
So they prove not only the materials found on your drives but exactly how it got there. The defense of “no idea how it got into my computer” is basically fruitless if the cops have ID your ISP and your history of traffic on the net.
Nobody except a pro hacker can remotely control your computer without your security software alerting you. This is a landmark case as Cop technology is finally catching up. JEV
Another case of pure ‘lunacy’.
Aside from being completely upset that this man received such a sentence for what many consider a non-contact crime – I want to interject that if a person has peer-to-peer turned to non-sharing and they still access the computer it is illegal search and seizure. The problem arises when they come for you because your computer is taken out of your hands and you have no proof of the settings after that. I am also dismayed by the statement…”“I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.”
So, if that is true then everyone who looks at a photo of a murdered person is guilty of murder? If you view pictures of a horrendous car accident are you then as responsible as the person at fault for the accident? To me to even go to that level that a person that looks at an image is the same as the person that produced the image is a travesty of justice. In Florida, it is illegal to possess a cartoon image of CP – where is the victim in that? No, I am sorry this is not about the victims at all in my opinion.
Here’s the Whole entire problem with this country, in one sentence. This guy receives 100 YEARS IN PRISON for possessing disgusting images! 100 YEARS, 10 decades in a small cell until his death. Not being allowed to contribute anything to society or ever live a normal day again in his life. Let that sink as as it seems people in this country that aren’t competely outraged about this grotesquely out of proportion sentence have lost heir damn minds. You can violently assault or attempt to kill someone, and you wouldn’t get as much time as this person who happened to have a sick choice of a ‘fetish’. And the flawed argument that it creates a market should also prove with empirical evidence that ‘free’ markets work. There is no evidence that downloading someone’s homemade videos will result in some reward to that person that enables them to carry out more of that behavior. There is no money or tangible transaction that occurs so there is no irrefutable proof of this claim of the ‘marketplace’. When people create rewards and especially pay for materials like this then yes it absolutely creates a demand/supply market. Let’s keep discussions around this crime as honest and not just solely base sentences on knee-jerk emotional reactions.
Joe – you are correct! There is no monetary market for CP – as a matter of fact it would be almost impossible for the producer of CP to follow its progression in the free market after it is introduced to the internet. Also, the irony is that “back in the day” before the internet, in order for one to acquire CP they would have had to go to a “seedy” establishment and purchase it and yet at that time the punishment for doing so was much less. In addition, once some purchased the CP it was almost impossible for LE to know who they were unless it was discovered in some police encounter with that person. Further, in the days when there WAS profit in the production of CP less people would have been “caught up” in that World because of the effort involved in acquiring it. It is all just insane….
I suppose that common sense or reliance on facts is no longer a requirement to get a judgeship. Watching child pornography is a ‘sick fetish’,however, not one that can’t be corrected in far less than 100 years. This is what happens when the value of human life of all kinds is no longer given any value.
… or you can actually molest a child and get less than 1/10th the time.
A former member of a politically connected Northern Kentucky family is scheduled to be sentenced to seven years in prison for sex crimes with a minor, the commonwealth’s Attorney General announced Wednesday.
Read this article in Reason: http://reason.com/blog/2017/04/14/florida-man-gets-100-years-for-possessin
I guess I’ll have to stop watching The Military Channel or I could be declared a mass killer. As one of our esteemed national leaders once said, “Common sense isn’t common any more”.
makes me wonder if this so called judge owns stock in private prisons