Published in the Maricopa Lawyer Family Law Section December 2023 edition.
By Sabra Barnett
As a former Assistant Federal Public Defender, I have experience representing clients accused of crimes ranging from gun charges and interstate drug trafficking to complex financial matters involving interstate wire transfers. I always appreciated practicing in Federal court because of the tremendous caliber of lawyers at the US Attorney’s office and the diversity of dealing with federal investigators including the FBI, ATF and DEA. Federal court also has the benefit of Article III Judges who do not have to worry about political ramifications or losing retention elections.
Over the years, my practice area has changed, as much of my work now involves defending parents accused of child abuse and/or neglect. Many of these cases involve allegations that suddenly arise during collateral family court proceedings. For the most part, these cases are handled at the state level and any criminal charges are prosecuted by the County Attorney’s office. A common example involves a child abuse allegation from discipline gone awry, where a parent uses an implement (spoon, paddle, belt) to punish a child. Although corporal punishment is legal in Arizona, there are limits to the physical force that may be used on a child. The parent(s) involved would usually face State criminal charges, in addition to a Department of Child Safety (DCS) investigation.
Of course, there are also occasions where child abuse allegations violate federal laws and become the province of the federal government. In movies and television shows, you know a crime is federal when the FBI or other three letter agency arrives at the scene and declares the case “their jurisdiction.” In practice, a case falls under federal purview when it involves the crossing of state lines or the violation of a federal law, treaty, or the U.S. Constitution.
Federal crimes involving children include interstate kidnapping, certain contact offenses against children (production of Child Sexual Abuse Material (CSAM) [formerly known as child pornography*], travel to engage in sexual activity with a child), and the distribution or sale of CSAM. Each of these crimes either includes a travel component or involves the creation or sale of something that travels along state lines (e.g., through the internet), making it fall under federal jurisdiction. Not all federal crimes involve sexual exploitation of a child, as it is also a federal crime whenever a parent wrongfully kidnaps their child and flees to another country (See our article on the Hague Convention) or fails to pay child support for a child who lives in another state.
In some instances, the federal and state governments both have the right to prosecute crimes against children. Offenses that violate both state and federal laws can be tried separately without violating the 5th Amendment’s prohibition on Double Jeopardy as they are separate sovereigns. However, typically, the federal government and the state government do not prosecute for the same crimes—instead, the defendant is subjected to prosecution by one of the sovereigns, resulting in very different sentences depending on which sovereign pursues prosecution.
Federal crimes that result in conviction receive sentences consistent with the advisory role of the United States Federal Sentencing Guidelines, as opposed to state sentencing guidelines, which can sometimes produce drastically different results. An infamous case in Arizona where a state sentence greatly exceeded the likely federal sentence is the case of Morton Berger. Mr. Berger, a former high school teacher in Phoenix, was convicted in 2003 for the possession of 20 images of CSAM and sentenced under Arizona law to 200 years in prison (10 years per image, which the sentencing statute mandated to be run consecutively). Mr. Berger’s sentence was upheld by the Arizona Supreme Court and the Supreme Court of the United States declined to hear a further appeal. Had Mr. Berger been charged under the federal sentencing guidelines at the time, he would have likely been sentenced to lesser years based on how the Federal Sentencing Guidelines operate and the fact that a federal sentencing court would not be required to sentence Mr. Berger to consecutive sentences for each count.
And while some crimes involving children violate both state and federal laws allowing either or both sovereigns to prosecute, more often the federal government may choose to prosecute certain aspects of a related crime while leaving other related crimes to the purview of the state government. For example, Larry Nassar, the former physician and team doctor for the United States women’s gymnastics team, was sentenced in federal court to 60 years for possession of more than 37,000 images of CSAM and tampering with evidence. He was then sentenced in Michigan state court to an additional 40 to 175 years after pleading guilty to seven counts of sexual assault and again a month later to an additional 40 to 125 years after pleading guilty to three more counts of sexual assault. In total, Mr. Nasser was sentenced to a combined 140 to 360 years in prison for state and federal crimes.
Defending people accused of crimes involving children can be taxing. Some are truly innocent and get caught up in the conflict of a custody battle with malignant false allegations of abuse. Often, there is a logical medical explanation for the injuries, such as the child having genetic issues, falling on the playground, or retinas tearing without abusive head trauma. But sometimes we must vigorously defend against these allegations because even though there is no medical explanation, we know our client did not cause the injury. While most of these cases are reviewed by state law enforcement and considered by the county prosecutor’s office, more serious allegations may fall into the federal government’s line of sight.
Being able to handle those allegations on both a federal and state level gives our office a unique perspective. While we may always wrestle with the inconsistencies in the process, we know that there are many good prosecutors who are open to being objective and considering all the evidence and science in cases involving child victims (e.g., a child may be more prone to bruising if he is a Hemophiliac). We know from our experiences how easy it is to jump to the conclusion that the injury must have been intentional and caused by the parent, but this is not always the case (especially since most of us are parents).
Sabra Barnett is a second-generation defense attorney and former Federal Public Defender. She is licensed to practice in Arizona and Alabama.
*States and the federal government have moved away from referring to recorded sexual exploitation of a child as “pornography” as it is always an illegal act (unlike adult pornography), as a child cannot consent.