Young advocates

During their three years of law school, students spend endless hours with their noses buried in books. When they aren't reading cases, they risk humiliation in front of their classmates as they respond to questions from their professors probing their understanding of the implications of those cases. They often wonder to what extent they're actually learning to handle the real life challenges they'll face when they're out in the profession.

Mock trial and moot court competitions provide one way in which they can measure their own abilities. I'll be helping to judge an appellate moot court competition on Saturday for the University of Washington Law School. (It's the closest I'll ever get, I'm afraid, to being a justice on the U.S. Supreme Court.) Actually, our "Supreme Court" will consist of only three "judges." The other six, I guess, will be both invisible and as silent as six Clarence Thomases.

I've been provided with about 80 pages of briefs and lower court records to review, documents that supposedly will enable me -- together with my two fellow judges -- to ask intelligent and startling questions of the student "attorneys."

The facts of the fictional appeal that the students will be arguing are juicier and the legal issues more complex than those that many real life attorneys probably encounter in a lifetime. A 26-year-old female sociology graduate student, as part of her graduate studies, was preparing an academic presentation questioning the severity of society's criminalization and punishment of some alleged child molestors. She sought young people (over 18) to be interviewed by video online, with nude web photos taken and used to illustrate the interviews. (She apparently hoped to discover the extent to which some alleged molestations were in reality "consensual.") Before the interview began, each young person was required to prove that he or she was over 18 by emailing appropriate identification to her, as well as displaying the same ID to her over the webcam.

One of her photographs showed a 16-year-old boy, posing nude and flipping off the camera. It is stipulated by both sides that although the photograph was "sexually explicit" in nature, it was not legally obscene and was related to the matters she had planned to discuss in her presentation. The boy had claimed he was 18, and had provided the defendant with phony ID. FBI agents, tipped off by the boy's mother, seized the graduate student's computer, and found a copy of the photo.

A federal grand jury indicted the graduate student for a violation of 18 U.S.C. § 2251(a), a federal statute dealing with "sexual exploitation of children," specifically, in her case, for having induced the boy's on-line posing in a sexually suggestive manner. At trial, the judge suppressed evidence that the boy had offered reasonable proof that he was not a minor, and refused to allow the defendant to argue to the jury, as an affirmative defense, that her mistake as to his actual age was reasonable under the circumstances. The trial judge held that the federal statute is a strict liability statute, and that the actual belief or intent, as well as the reasonable efforts, of the defendant with respect to the boy's age were irrelevant.

The grad student was tried, found guilty, and sentenced to 15 years in prison, the minimum sentence allowed under the statute. On release, she must register as a sex offender. She also will be barred for an additional three years, while on "supervised release," from access to "any form of pornographic material," which would effectively exclude her from work in the field of sociology studies that she had undertaken for her graduate degree.

The Court of Appeals affirmed the conviction, and the Supreme Court accepted review. And that's where the case will stand when it comes before our panel on Saturday.

Judges have been provided briefs drafted on behalf of both the defendant and the United States. Both sides have strong arguments: The government has the literal wording of the statute in its favor, together with favorable decisions by three circuits of the Court of Appeals and the strong public policy of protecting children. The defendant, on the other hand, can point to a favorable decision from another circuit of the Court of Appeals (our own circuit, actually, based in San Francisco), requiring that the defendant be allowed to argue "reasonable mistake" as an affirmative defense. Imposing strict liability in a case involving first amendment rights would result in "self-censorship," with a "chilling effect" on protected speech, the Ninth Circuit held. Also, even in cases not involving first amendment rights, imposition of strict liability in a criminal case is disfavored by the courts, and usually restricted to cases involving enforcement of business regulations.

To a lawyer, this is a fascinating case, presenting the sort of battle between conflicting public policies and interests often found in those disputes that make it as far as the Supreme Court. Such conflicts are hard to resolve, not only with respect to the immediate parties before the court, but also with respect to the precedent the court's decision will set for decades to come in similar future cases.

As the legal maxim goes, "Hard cases make bad law."

Luckily, we judges in a moot court setting don't have to resolve the legal issues. We simply decide which side did the better job presenting the arguments that they had available, in light of the set of facts they were given. And -- for us judges -- the most enjoyable part of the exercise is the post mortem, discussing informally with the students the strengths and weaknesses of their presentations.

If anything unusually interesting happens during Saturday's arguments, I may post a quick follow-up.