1. STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURT
) CRIMINAL DIVISION 3
~
COUNTY OF MARION )
JEFF HOWELL
)
)
49G03-0807-PC-158636 FILED
vs.
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)
( ( g c 2 5 2011
, (/liiG fjpfi'0
STATE OF INDIANA )
CUM~ oJ.'rtf~ ~~~N Cl~
MEMORANDUM OF POINTS AND REFERENCES
IN SUPPORT OF
PETITION FOR POST CONVICTION RELIEF
Comes now the Petitioner, Jeff Howell, prose, and files his Memorandum of Points and
References in Support of Petition for Post Conviction Relief in the above cause.
1. Indiana's child solicitation statute, as it pertains to the Internet, was created in
response to the "moral" or "techno" panic propagated by the media and law enforcement in the
early to mid 2000's. One of the most popular misquoted or misused pieces of information is
what is commonly referred to as the "I in 5" or "1 in 7" figure, which refers to two studies
conducted by the University ofNew Hampshire's Crimes Against Children Research Center
(UNH-CCRC). These two studies concluded that "1 in 5" (19%) or "1 in 7" (13%) of the study
participants, youth ages 10-17, had received some form of "solicitation" on the Internet during
the year preceding the study. Law enforcement and the media misconstrued these figures, and
began publicizing the information based upon the assumption that the "solicitations" were from
adults who had contacted the minors seeking sexual relations. One television network went as
far as to create a show to sensationalize the "threat" (NBC Dateline: To Catch a Predator). The
UNH-CCRC has since attempted to correct this misinformation by clarifying that the
"solicitations" referred to in the study included any type of unwanted contact regardless as to he
nature (such as bullying, harassment, etc.) and the fact that few were from adults, and that nearly

2. half (48%) of the "solicitations" came from other juveniles, man of them known to the study
participant. Ex. 39.
2. "Over the last decade, much of the Internet safety material, [as] well as
information still present on many state attorneys general web sites, and in instruction material
they provide, contains disinformation that creates the fear that young people are at high risk of
online sexual predation, when the actual research and arrest data indicates the opposite. There is
a tendency among law enforcement officials to think that scare tactics are effective in reducing
risk behavior. Research has never found this to be so. [ ... M]aterial.. .on the Internet web site of
the attorney general ofNorth Carolina and ... Nebraska demonstrate [that] law enforcement seeks
to inculcate fear." Ex. 20.
3. Considerable effort has been made to clarify and debunk the myths and
misinformation being propagated about Internet safety. Ex. 20, 22-31, 39.
4. "[T]he ISTTF's 1 Research Advisory Board conclusively proved the primary
online safety issue today is peer-on-peer cyber-harassment, not adult predation." Ex. 30, p. 173.
5. Susan Brenner currently serves as Associate Dean and Professor of Law at the
University of Dayton School of Law in Dayton, Ohio. She has studied the area of cybercrimes
extensively and offers the following information as a result of her studies: "A number of states
make it a crime to use a computer to solicit or lure a minor to engage in an 'unlawful sex act.'
Since most, if not all, states have generic statutes that make it a crime for an adult to solicit sex
from a child, and since these generic solicitation statutes would presumably encompass use of a
computer for this purpose, these statutes appear to be redundant. States clearly do not agree,
however, because bills have been introduced to add cyber-solicitation statutes to codes which do
not already have them. For some reason, one state [Indiana] makes it a more serious offense to
1
Internet Safety Technical Task Force

3. use a computer to solicit a child than to do so in person." Emphasis added. Susan W. Brenner,
Cybercrime Legislation in the United States of America: A Survey, 7 RICH. J.L. & TECH. 28
(Winter 2001 ), at http://www.richmond.edu/jolt/v7i3/article2.html.
6. Legal services for the poor are severely underfunded. Substantially more
government dollars are spent on the prosecution than on the defense. Prosecutors enjoy the
additional resources of having their investigatory work done by law enforcement. Studies
conclude that money can have a big impact on jury verdicts because money buys investigative
resources, which make a difference in jury trials. Alan Dershowitz thinks providing more legal
resources to indigent defendants would make the playing field level. He recommends that "all
indigent defendants ... who have a large team of prosecutors, police, and experts arrayed against
them" be given "a reasonably comparable defense team." Increasing the resources of indigent
defendants, in his view, would strengthen the adversary process, making it more likely to
produce both truth and equal justice." Citation: CliffsNotes.com, Ineffective Assistance of
Counsel. 21 Jun 2010 http://www.cliffsnotes.com/study_guide/topicArticleld 10065,articleld-
10032.html.
7. Forty-four percent (44%) of online "aggressive sexual solicitations" of youths are
now coming from other youths under age 17 that the victim knows in real life (Wolak, J.,
Mitchell, K., & Finkelhor, D. (2006). Online victimization of youth: Five years later. National
Center for Missing and Exploited Children Bulletin- #07-06-025. Alexandria, Va.).
8. "The publicity about online 'predators' who prey on naive children using trickery
and violence is largely inaccurate." Wolak, J., Finkelhor, D., Mitchell, K., & Ybarra, M. (2008)
American Psychologist, 63, 111-128. Copyright APA. See http://content.apa.org/journals/amp.

4. 9. With all the media hype regarding the so-called "problem" of Internet predation,
it would be very difficult, if not impossible, for an individual charged with such a crime, to get a
fair trial as guaranteed by the U.S. and State constitutions. This has the same effect as pre-trial
publicity.
10. Experiments conducted by Roberts and Doob (1990), Moral and Cutler (1991)
and Riedel (1993), show that pretrial publicity can affect a potential juror's or judge's decision.
A jury must determine the case before it based on admissible evidence before the court, and not
on prejudicial information from outside. Petitioner did not receive a fair trial due to "pretrial
publicity" in the form of media hype regarding the myth of Internet predation. Jurors would
have a preconceived opinion, based on this media hype, that Petitioner was guilty simply because
of the way the "problem" has been sensationalized by the media. Thus, Petitioner's right to a
fair trial under the U.S. and Indiana Constitutions was violated.
11. There is an abundance of research that raises serious doubt about the assumption
that a jury can separate evidence from other material. Further, the same research challenges the
assumption that a trial judge can somehow minimize the impact of prejudicial publicity. See,
e.g., Ellsworth, P.C., "Some Steps between Attitudes and Verdicts", in Reid Hastie (ed.), Inside
the Juror: The Psychology ofJuror Decision-Making, Cambridge Uni Press, 1993, pp. 42-64;
Casper, J D and Benedict, K.M., "The Influence of Outcome Information and Attitudes on Juror
Decision Making in Search and Seizure Cases" in Reid Hastie (ed.), above, pp. 65-83; Ogloff, J.
and Vidmar, "The Impact ofPre-Trial Publicity on Jurors," (1994) 18 Law & Human Behavior
507-25.
12. Although the majority of the public discussion involving sexual contact crimes
concerns adult-to-minor solicitation, and the typical image of an online predator is an older male

5. (Wolak et al. 2008b), the reality is that most of the time solicitors are youth or young adults; 43%
ofthe perpetrators of sexual solicitation are known to be other minors, 30% are between 18 and
25, and 18% are of unknown age (Wolak et al. 2006). In a small number (14%) of cases, the
victim knew the perpetrator prior to the incident (Wolak et al. 2006).
13. Internet-initiated sexual encounters between an adult and adolescent are unlikely
to be violent. In a nationwide survey oflnternet-related contact crimes against youth reported by
law enforcement, only 5% of incidents involved violence (such as rape), and none involved
"stereotypical kidnappings in the sense of youth being taken against their will for a long distance
or held for a considerable period of time" (Wolak et al. 2004: 424.e17). Similarly, despite
anecdotal reports (Quayle and Taylor 2001), cyberstalking-a crime where offenders locate
youth offline using information found online (Jaishankar et al. 2008}--appears to be very rare
(Wolak et al. 2008b).
14. It is important to recognize the role that some youth-particularly older teens-
play in [Internet] relationships. This is an important policy issue, because "if some young people
are initiating sexual activities with adults they meet on the Internet, we cannot be effective if we
assume that all such relationships start with a predatory or criminally inclined adult" (Hines and
Fenkelhor 2007: 301).
15. Given the anonymity of communication, it is often difficult for youth to assess the
age of solicitors, but youth reported that they believed that 43% of solicitors were under 18, 30%
were between 18 and 25, 9% were over 25, and 18% were completely unknown (Wolak et al.
2006).
16. Though some solicitations are designed to lead to an offline sexual encounter,
very few actually do. Some of this contact can be understood as "flirting" (McQuade and

6. Sampat 2008; Smith 2007), and many solicitations are simply meant to be harassing (Biber et al.
2002; Finn 2004; Wolfe and Chiodo 2008).
17. Fears of predators predate the Internet and were a source of anxiety around
children's access to public spaces in the 1980s (Valentine 2004). Although the use of"stranger
danger" rhetoric is pervasive, it is not effective at keeping kids safe (McBride 2005). More
importantly, 95% of sexual assault cases reported to authorities are committed by family
members or known acquaintances (Snyder and Sickmund 2006). In a study of Internet-initiated
sex crimes reported to law enforcement, 44% of crimes were committed by family members and
56% were committed by people known to the victim offline, including neighbors, friends '
parents, leaders of youth organizations, and teachers; known cases involving strangers are
extremely rare (Mitchell et al. 2005b). In other words, the threat of Internet-initiated sex crimes
committed by strangers appears to be extremely exaggerated (Finkelhor and Ormrod 2000).
18. Few solicitations result in offline contact. (Wolak et al. 2008b).
19. Youth typically ignore or deflect solicitations; 92% ofthe responses amongst Los
Angeles-based youth to these incidents were deemed "appropriate" (Rosen et al. 2008).
20. Not all solicitations are from strangers; 14% come from offline friends and
acquaintances (Wolak et al. 2006, 2008b).
21. Youth identify most sexual solicitors are being other adolescents (48%-43%) or
young adults between the ages of 18 and 21 (20%-30%), with only 4%-9% coming from older
adults and the remaining being of unknown age (Finkelhor et al. 2000; Wolak et al. 2006).
22. One of parents' greatest fears concerning online safety is the risk of "predators."
This topic is the center of tremendous public discourse and angst (Marwick 2008) and attracts
viewers nationwide to the popular TV show To Catch a Predator. In 2007, more than half

7. (53%) of adults agreed with the statement that "online predators are a threat to children in their
households" (Center for the Digital Future 2008). Embedded in this fear are concerns about the
threats of online sexual solicitation and the possibility that these will lead to dangerous offline
encounters between youth and predator adults. Online Threats to Youth: Solicitation,
Harassment, and Problematic Content, Literature Review Prepared for the Internet Safety
Technical Task Force, http://cyber.law.harvard.edu/research/isttf, Andres Schrock and Danah
Boyd Berkman, Center for Internet & Society, Harvard University.
23. Two experiments to test pretrial publicity's affects on jurors were conducted to
compare results. In the first trial experiment, 78% of jurors who had read the prejudicial
publicity favoured [sic] conviction, while only 55% of those who had read the neutral publicity
favoured conviction. In a similar second trial experiment, 60% of prejudiced jurors convicted
the accused, while only 15% of the neutral jurors did so. The results indicated that the
prejudicial effect of pretrial publicity on mock jurors was not restricted to highly artificial
experimental conditions. Trevor B. Roydhouse, BJuris, LLB, University ofNew South Wales
Faculty of Law, 2001.
24. Research suggests that pretrial publicity influences trials. "Relationship Between
Pretrial Publicity and Trial Outcomes," Jon Bruschke, Ph.D., and William E. Loges, Ph.D., 1998.
25. "While it is easy and more efficient to simply trust jurors, I doubt the jurors can
ignore prejudicial information that they read in newspapers or saw/heard on television." Pretrial
Publicity Prevents a Fair Trial in the USA, Ronald B. Standler, 2004, p. 18,
www.rbs2.com/pretrial.pdf.

8. 26. With the debut of programs on cable television that devoted five hours/week to
legal commentary, the problem offmdingjurors who are both intelligent and unbiased was made
significantly worse. !d.
27. Pretrial publicity in newspapers and television commentary routinely includes
information that is sensational or inflammatory. Because of the dearth of genuinely novel news,
some of these legal commentary programs on television recycle topics of previous discussions,
and this repetition may cause potential jurors to "memorize" these facts that will not be evidence
in the trial. With nationwide television news channels, e.g., CNN and its subsequent imitators, it
is much more difficult to find intelligent people anywhere in the USA who have not heard
pretrial "facts" on high profile cases. !d.
28. Research has found: 1. Jury verdicts have been found to be influenced by pretrial
publicity even after jurors have heard all of the evidence, 2. There is a cumulative effect for
negative information, 3. Pretrial publicity can influence a juror's memory and impressions of the
evidence contrary to actual testimony, 4. Negative information which is global in its scope and
judgment of a party or a party's actions is more damaging than information that is limited to a
particular facet of the party's actions or the issues, 5. Most of the time jurors, judges, and
arbitrators do not believe that they are biased by pretrial publicity accounts and will vehemently
disavow any bias or influence by the publicity. Ironically, jurors will often state that they believe
that other people are influenced by pretrial publicity, 6. Pretrial publicity does not generally
cause opinions and attitudes to be formed. However, it can frame the issues and cause already
existing attitudes and opinions to be called up in a juror's mind, 7. Jurors and other fact finder's
tend to believe the contents of news reports unless there is some fundamental reason to mistrust
them, 8. Television exposure and printed articles on the same subject tend to bias potential

9. jurors significantly more often than exposure to print media alone, 9. Repetition of the story or
the message contained in pretrial publicity will cause it to stay in the long-term memory of
potential jurors over time. "The Effects of Pretrial Publicity," The Advocates, Jury and Trial
Consultants, Richard Waites, J.D., Ph.D. and Jan Larson, J.D., Ph.D.
29. Over the past forty years, scientists have studies the effects of pretrial publicity
and have found justification for concern by courts and litigants. Information contained in pretrial
publicity has been found to influence evaluations of litigants' likeability, sympathy for a litigant,
perceptions of a litigant's culpability, and, of course, final jury decisions. Field surveys and
experimental studies (under controlled conditions) have been used to study these effects. One
interesting study was conducted by Gary Moran and Brian Cutler, two of the most reputable jury
research scientists in the United States. The researchers ultimately found that even modest
amounts of pretrial publicity might prejudice potential jurors and that self-reports of a juror's
impartiality could not be relied upon. Moran & Cutler, "The Prejudicial Impact ofPretrial
Publicity," 21 J. Applied Social Psychology 345-367, 1991.
30. Numerous quotations from court cases have shown that pretrial publicity can
reduce a trial to a farce: a) Jurors can form opinions of guilt or innocence from reading
newspapers or watching television before the trial begins; b) Jurors can base their verdict on
unreliable, irrelevant, or unfairly prejudicial "facts" presented in newspapers or television,
instead of evidence presented in court; c) Jurors can find the criminal defendant guilty, in order
to avoid scorn and ridicule from their family, friends, and neighbors whose emotions have been
inflamed by sensational news coverage. Pretrial Publicity Prevents a Fair Trial in the USA,
Ronald B. Standler, 2004, www.rbs2.com/pretrial.pdf.

10. 31. Trials are not a mere pro forma exercise. Trials are not entertainment for the
amusement of the curious public; the result of a criminal trial can determine the remainder of a
defendant's life. ld.
32. A fair trial should be concerned with initially impartial jurors who make their
decision only on the basis of evidence presented in court, a situation that is obviously corrupted
by intense pretrial publicity. Id.
33. The real issue is whether we want fair trials for criminal defendants. Fair trials
affect everyone in society, not just the few criminal defendants. Id.
34. The U.S.A. has become the land of inflammatory pretrial publicity, injustice, and
prolonged litigation. Why do we allow pretrial publicity to poison the minds of potential
jurors ... ? ld. at p. 51.
35. Pretrial publicity remains a real problem that must not be ignored. ld. at p. 54.
36. Minors are exposed to material that some would consider inappropriate but that is
not legally obscene. For example, the Fox television network's popular primetime animated
series Family Guy frequently contains sexually suggestive content and course language, even
though the program is rated "TV-14," which indicates that the problem is "not suitable for
viewers under 14." One such episode, entitled "The Tan Aquatic with Steve Zissou," the
eleventh episode of season five which originally aired on February 18,2007, shows one scene in
which is appears that Brian is ejaculation on Stewie, the Griffins' infant son.
37. Many other network television programs present material similar to that found on
Family Guy, such as FX Network's Sons ofAnarchy, in which one female character often uses
the slang term "pussy" when referring to her vagina. Other similar references include "dick" and
"cock" to refer to the penis. Another network television program using similar material is

11. Nip/Tuck. One episode of the animated program South Park that aired on Comedy Central,
shows a nwnber of scenes of the father of one of the young children, who is masturbating in
front of the computer, preswnably, based on the dialogue, while he is viewing pornography
online. The conclusion shows what appears to be ejaculate covering the computer, desk, etc.
While some of these programs display a "Mature" audience rating, this material is easily
accessible to minors and cannot be banned. Accord Sable Comm. v. FCC, 106 LEd 2d 93,492
US 115, 109 S Ct 2829 (1989); Pacifica Foundation v. FCC, 556 F2d 9, 181 US App. D.C. 132
(US App 1977); United States v. Playboy Ent. Gp., 146 LEd 4d 865, 529 US 803, 120 S Ct 1878
(2000).
38. In 2003, the Ohio Court of Appeals overturned the conviction of an individual
who had been convicted in 2001 for entries in his personal diary that involved depictions of sex
with fictitious children. His charges were based solely upon his personal journal discovered in
his apartment. Cf State v. Dalton, 153 Ohio App. 3d 286, 2008-0hio-3818.
39. Abductions by strangers "represent an extremely small portion of all missing
children [cases]." Andrea J. Sedlak, David Finkelhor, Heather Hammer, and Dana J. Schultz,
"National Estimate of Missing Children: An Overview," National Incidence Studies ofMissing,
Abducted, Runaway, and Thrownaway Children (NISMART), October 2002, p. 7,
www.missingkids.com/en_US/docwnents/nismart2_overview.pdf.
40. The vast majority of kidnapping victims were abducted by family, friends of the
family, or people who had a close relationship with (or the trust of) the minors. Only 115 of the
estimated 260,000 abductions-or less than a tenth of a percent-fit the stereotypical abduction
scenario that parents most fear: complete strangers snatching children and transporting them
miles away. Jd.

12. 41. A study of cases about missing children in Ohio revealed a similar trend. Of the
11,074 documented missing child cases in 2005,just 5 involved abduction by strangers
compared to 146 abductions by family members. 2005 Annual Report, Ohio Missing Children
Clearinghouse, p. 4; www.ag.state.oh.us/victim/pubs/2005ann_rept_mcc.pdf.
42. It is important to remember that predators can't magically reach through a
computer screen and grab our kids. Social Networking and Age Verification (2007), p. 6., Adam
Thierer, senior fellow with The Progress & Freedom Foundation and the director of its Center for
Digital Media Freedom.
43. Will increased online policing divert resources from offline policing? Stated
differently, because physical harm to children occurs only through real-world encounters, will a
focus on the line component come at the expense of offline policing of real-world harms? !d. at
p. 13.
44. "Sex offenders only very rarely sneak into a house in the middle of the night.
More often they come through the front door in the day, as friends and neighbors, as Boy Scout
leaders, priests, principals, teachers, doctors, and coaches. They are invited into our homes time
after time, and we give them permission to take our children on the overnight camping trip, the
basketball game, or down to the Salvation Army post for youth activities." Anna C. Salter,
Predators: Pedophiles, Rapists, and Other Sex Offenders (New York: Basic Books, 2003), p. 5,
76.
45. One recent study suggests that perception has replaced reality in the minds of
many in the press and general public, who have increasingly come to believe that stranger
abductions account for most missing child incidents. A 2006 analysis of New York Times articles
about kidnappings, by Glenn W. Muschert, Melissa Yaung-Spillers, and Dawn Carr in the

13. Justice Policy Journal, argued that "the Times disproportionately focuses on stereotypical
kidnapping incidents, while social science data suggest that familial abductions are far more
prevalent." And abduction estimates made by some activists were also "highly exaggerated,"
they found. Unsurprisingly, for those reasons, the authors note that various public opinion polls
have revealed that most people believed that abductions by strangers accounted for most missing
child cases even though the exact opposite was true. Glenn W. Muschert, Melissa Young-
Spillers, and Dawn Carr, Justice Policy Journal, vol. 3, no. 2, Fall 2006, pp.4-6.
46. Petitioner is a well-decorated public servant who has worked in law enforcement
for well over a decade. He has received commendations from governors, members of the
legislature, as well as from civic organizations; he is a legally ordained minister, and is a
Kentucky Colonel, Kentucky' s equivalent of Indiana's Sagamore of the Wabash. When he
began his career in public service, he took an oath to uphold the laws of this State and to defend
the U.S. and Indiana Constitutions' when he began service with the U.S. Government, he also
took an oath to defend the U.S. Constitution as required under 5 USC 3331. He maintains his
allegiance to and obligations under those oaths, as well as to the U.S. and Indiana Constitutions.
In 2005, he was requested by the FBI to provide assistance with the search for a missing 10-year
old Southern Indiana girl, due to his experience in searching for lost or missing persons. He was
an ex officio member of his agency's Violent and Sex Offender Registry Task Force.
47. Petitioner is not a pedophile, hebephile, ephebephile, and Internet, nor any other
kind of, predator. He is, however, a victim of a state statute that is unconstitutional, vague, and
overly broad, and violates the First Amendment rights of adults who choose to engage in adult-
related conversations in a venue known to be restricted to adults.

14. 48. In deciding whether a 1977 radio monologue contained obscenity, Justice
Bazelon, concurring, wrote "frankly, I do not see how individual words could ever be found
obscene, even as to children." Pacifica Foundation v. F. C. C. , 556 F2d 9, 29, 181 US App. D.C.
132 (US App 1977).
49. I am not clear why the word "tit" is in the FCC' s index [of prohibited words]
because it is neither a sexual nor excretory organ. Pacifica, 556 at 37 n. 16 (Justice Leventhal,
dissenting).
50. The 1977 radio monologue in Pacifica included what its presenter, comedian
George Carlin, referred to as "Seven Dirty Words." "The original seven words were, shit, piss,
fuck, cunt, motherfucker, and tits." Pacifica, 556 at 38.
51. Any point or reference contained in this memorandum may be considered a
Finding of Fact or Conclusion of Law if the context so warrants.
WHEREFORE, the Petitioner requests the Court to grant his Petition for Post Conviction
Relief and for all other relief just and proper.

15. CERTIFICATE OF SERVICE
I, Jeff Howell, do herby certify that a true and correct copy of the foregoing was served upon
Julie Kirchoff, Marion County Deputy Prosecutor, 251 E. Ohio Street, Room 160, Indianapolis
IN 46204, this 19th of August, 2011, by depositing in the prison mail system for delivery by U.S.
Mail, First Class, postage pre-paid.
Petitioner, pro se
JeffHowell #194392
New Castle Correctional Facility
P.O. Box A
New Castle IN 47362