Tampa Criminal Lawyer Blog
Former Florida Gators backup quarterback Jalen Kitna (“Kitna”) was arrested in late November for two counts of promotion of child pornography and three counts of possession of child pornography, both violative of Florida Statute 827.01. While unfortunately it is not uncommon for young collegiate athletes to find trouble with the law, this is the first arrest that I am aware of, involving a non-hands on sex crime involving an athlete at a reputable football program. According to news outlets, likely basing their information on a press release from the Gainesville Police Department (“Gainesville PD”), Gainesville PD and an Internet Crimes Against Children (“ICAC”) task force served a search warrant on Kitna’s residence after Gainesville PD received a tip from the National Center for Missing and Exploited Children (“NCMEC”) indicating that a discord member account linked to Kitna had shared two images depicting child sexual abuse with another discord member.
Further investigation found that the images were likely shared from Kitna’s residential address, using a discord account likely belonging to him. Upon law enforcement interviewing Kitna, he is alleged to have admitted to sharing the images but thought they were legal because they were on the internet. Kitna indicated that he only realized his folly when the discord member he shared the imagery with reacted negatively to Kitna’s actions, ultimately then receiving notice that his discord account had been cancelled due to violating company policy. Kitna’s phone was seized during the time of the interview only to reveal three additional images depicting child sexual abuse, such images likely comprising the three possession charges.
Despite Kitna’s case being in the media due to his status as a University of Florida quarterback, the course of the investigation leading to present day is really very common in an allegation involving a sex crime involving child pornography. Our firm handles a considerable amount of child pornography allegations and it is not uncommon for an individual or internet service provider (“ISP”) who has either received child pornography or in the case of an ISP, to detect file names commonly affiliated with child pornography, to make a report to the NCMEC. NCMEC is an organization aimed and ceasing the exploitation of children and aiding in law enforcement’s prosecution of child pornography crimes. Once NCMEC verifies the tip, they generally pass the tip along to the special victim’s unit of the law enforcement agency with jurisdiction (In this case Gainesville PD because Kitna lived in Gainesville). Depending on internal policy and decision making, once the law enforcement agency receives the tip, they will either seek a collaboration with ICAC and get a search warrant or seek the warrant on their own. In this case, likely due to better resources, Gainesville PD collaborated with ICAC. ICAC is a network of 61 (as of the date of this blog) task forces comprising both Federal and State law enforcement agencies and their accompanying prosecutorial offices aimed at prosecuting internet crimes against children. Over the years as law enforcement has focused more on sex crimes and more specifically, sex crimes facilitating the internet, coalitions of law enforcement agencies specialized in combating this kind of crime have grown.
So where does Kitna go from here? We don’t represent him so it’s hard to say what his attorney’s strategy will be as of yet. Without a doubt the first step in his defense will be to review the evidence the State has against him. Discovery in sex crime cases is often voluminous, and with respect to child pornography cases, daunting to review both in terms of content and the volume. As a general rule, it is wise to select a formidable psychologist to conduct psychosexual evaluation so as to assess professionally both the mental health of the individual accused and to have the person evaluated for “risk” to reoffend with a sex offense in the future. Obviously the usefulness of a psychosexual evaluation depends on the outlook of the case (trial versus mitigation and plea) and the results of the evaluation. It’s vital to provide the evaluator any relevant discovery, facts about the case, information about the client, and any medical or trauma history involving the client. In the event you perform an open plea, or in the instance of a Federal sentencing, it is imperative that your evaluator know as much about the client as possible so as to ensure their report is as accurate and thorough as possible; immune from impeachment through cross examination.
In instances of a claim of actual innocence, it may be advantageous to have your client perform a private polygraph. While polygraphs are not normally admitted at trial, law enforcement uses them in their investigations all the time. What is good for the goose is good for the gander when it comes to negotiating a resolution or lobbying for a non-sex charge offer. I do not recommend agreeing to a polygraph with law enforcement as the environment you will be in is less controlled, higher pressure, and even in the event you pass, you may be told you fail as you are further interrogated. Even if there is not a claim of actual innocence, collateral issues may be fleshed out through a polygraph and doing so could aid in negotiation. Prosecutors and law enforcement are always concerned a hands off offense like distribution or possession of child pornography will turn hands on in the future, or in the instance of a hands on offense, a polygraph may aid as well. If no deception is indicated as to possessing other child pornography in the past, or having never touched a child, etc. this could aid in negotiating a better ultimate resolution. Likewise, if a hands on accusation is made, the ability to support a statement that it has not happened before could be beneficial.
Utilize the services of a sex offender/therapy counselor who is qualified under “Association for Treatment of Sexual Abusers” (“ATSA”) standards. In most instances of child pornography allegations, the electronic trail leads to the accused and the prospect for trial is more difficult than an allegation that is he said, she said without more. Because of this mitigation often takes center stage and engaging in sexual therapy through the duration of the pendency of the case shows a willingness to rehabilitate and a willingness to get help. While not always right for every case, dependent on the approach of defense, positive progress with the right counselor has never been a detriment in any case I have handled. One word of caution, when utilizing a sex counselor, it is necessary that they are ATSA trained. Do not use a therapist that does not engage in this kind of therapy on a daily basis, do not use a member of the clergy, and do not use a faith based therapist. This may be an unpopular position with many, however religion or religious rehabilitation will fall on deaf ears if your lawyer is attempting to mitigate your case. The goal is mitigation so use the tools that can best help achieve that goal.
Kitna may have had an opportunity to contest his charges more effectively had he not agreed to speak to law enforcement. While the electronic trail produced by the internet is hard to overcome, it is still required that Kitna was the one that knowingly downloaded and possessed the child pornography and was responsible for uploading it. He is young and likely a bit naive, as would likely be the case with his peers. It is not too far fetched to believe that someone could have used his profile to play a prank, thinking it was funny, oblivious to the severity of their actions. While it is unlikely that anyone playing the prank would come forward to claim responsibility, if it was not uncommon for Kitna to have had his discord account used by others from his home, he may at least have the ability to establish reasonable doubt. Of course this option is unlikely due to his own admissions, barring an ability for his attorneys to suppress the statements, thus keeping them out of evidence.
While Kitna was arrested for two second degree felonies, each punishable by up to fifteen years in prison, and three third degree felonies, each punishable by up to five years in prison, in the event law enforcement finds more child pornography, Kitna could be subject to seeing his felonies reclassified. Florida Statute 775.0847 allows for child pornography cases to be reclassified one level higher if the individual possessed ten or more child pornography images, regardless of content, AND at least one of those images depicts a child younger than five years old, sadomasochistic abuse, sexual battery involving a child, sexual bestiality involving a child, or a video. Kitna may be spared this reclassification by virtue of not having ten images, it is often the case, whether the individual requests it or not, that more imagery is actually possessed. In the event the images come in a link or folder, more often than not hundreds or thousands of images will be present. Time will tell as to the amount of images possessed and how the State elects to charge this case. Depending on the posture of the defense, the Alachua County State Attorney’s office may choose to charge bargain up front, bargain with respect to the counts charged, or do nothing and charge everything they can.
Kitna is out on bond currently and one has to believe he is in good hands with his local counsel. Regardless of Florida county, sex crime allegations are prosecuted very harshly so it is vital that when one is charged with an offense such as this that able counsel is retained. Whether it is shaving years off a sentence, sparing a lifetime obligation to register as a sex offender, or avoiding convicted felon status altogether, the right attorney with the right approach can make a marked difference. If you have been charged with a sex crime in Florida or our Federal Courts, contact our office at 813-444-7435 or email me directly at jason@mayberryfirm.com.