Hardman - The Rest of the Story
Note - This is a follow-up to "The Hardman Report" posted in April, 2019. It would be best to read that post before venturing below. Today I write only to answer some lingering questions, lay out some very strange oddities in the case, and discuss how Mr. Hardman's defense team strategy appears to have been no strategy at all.
David Bruce Hardman was in the video production and distribution business. Videos, like the celluloid movies before them, and photographs going back to the invention of the camera, are plainly expressive materials that are presumed to be protected under the First Amendment of the United States Constitution.
In the United States when a law enforcement officer or agency wishes to receive judicial permission to search a home, business, car or person they must first make application to a judge. As part of that process one or more law enforcement officers, or an officer of the court such as a prosecutor, will attach a sworn affidavit to the application.
The affidavit lays out "probable cause" for the reviewing judge about the crime being investigated, the reason law enforcement believes that "particular" evidence of that crime may or will be found in the place to be searched, and often exactly what that "particular" evidence will be. The judge can approve the search application as is, impose various limitations, or deny the application.
Over a number of cases the United States Supreme Court has determined that in matters that implicate expressive materials the First Amendment has a significant bearing on probable cause and particularity. The main precedent setting cases read like this:
"Where the warrant process is used to authorize seizure of books and other items that may be protected by the First Amendment, the Court has required government to observe more exacting standards than in other cases. Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment."
"The First Amendment imposes special constraints on searches of presumptively protected material and requires that the Fourth Amendment be applied with scrupulous exactitude in such circumstances. Because of the First Amendment, the seizure of all publications must meet higher procedural standards than normal."
"These higher procedural standards take two forms. First, the warrant must specifically describe the material to be seized. Blanket clauses that do not refer to specific items and to material directly related to specific items are not proper bases for constitutional searches and seizures. Second, the exceptions to the warrant requirement are narrowly construed. The plain view exception cannot be used to search for or seize alleged obscenity or alleged child pornography that is unspecified in the warrant."
"Otherwise, police officers could seize any publication or film they deem to be unprotected by the First Amendment, thereby subverting the higher procedural standards that require a neutral magistrate to make the initial determination of probable cause as to specific items. The fact that child pornography in unprotected by the First Amendment is irrelevant. All expression is presumptively protected at the time of the search: child pornography is no different in this regard from obscenity."
See for example; Maryland v. Macon 105 S.CT 2778; U.S. v. Sherwin 572 F.2d 196; Lo-Ji Sales v. New York 99 S.CT 2319; Roaden v. Kentucky 93 S.CT 2796; or U. S. v. Hale 784 F.2d 1465.
The basics are that a search for materials that are "presumptively protected" is unlike a search for illegal guns or drugs because not only is the Fourth Amendment (unreasonable search and seizure) implicated, but also the First Amendment (free speech and expression).
This higher standard is not always known by law enforcement officers, but should be very well understood by the prosecuting attorneys that the officers consult with when preparing search warrants, and damn well should be by the judge or magistrate that reviews the search warrant application, the attached law officer supporting affidavit, and the written language in the warrant itself.
I don't know if that higher standard was met in the Hardman case as the warrant application, law enforcement officer's affidavit and actual warrant executed at Hardman's residence are not part of the public record or court documents, and even Hardman himself doesn't have a copy.
This higher standard should also be well known - very damn well known - by any defense attorney working on a case that involves materials or actions that are considered expressive and therefore "presumptively protected at the time of the search". Questioning that warrant on its face, and in consideration of the very high First Amendment standards, is step number one for any defense attorney worth a grain of salt.
Hardman's lawyer never made any sort of motion to question the affidavit or quash that warrant.
On June 12, 2016 Omar Mateen killed 49 people and wounded 53 others in a mass shooting inside the Pulse nightclub in Orlando, Florida. After an extended stand-off he was killed by law enforcement officers that had been unable to convince him to surrender.
In January of 2017 Mateen's wife, Noor Salman, was arrested by federal officers. She was charged in federal court in Orlando with aiding and abetting, as well as obstruction of justice. Federal prosecutors accused her of knowing that Mateen was planning the attack.
Ms. Salman was represented by lawyers Charles Swift and Linda Moreno from the Constitutional Law Center for Muslims in America, with Orlando area lawyer Fritz J. Scheller serving as local counsel. Her trial was set for March 2018. This case drew international attention and Mr. Sheller made numerous TV appearances and gave several interviews to media outlets over the next several months leading into 2018.
On August 17th, 2017 David Bruce Hardman was arrested at his home in Melbourne, Florida. He was in court late that afternoon, and again on August 22nd, represented by Ms. Karla Reyes, a bright young lawyer that works hand in hand with the Federal Public Defender's office.
On September 4th, 2017 an attorney by the name of Andrew B. Greenlee files his official "Notice of Appearance" to take over as Hardman's lawyer.
On September 14th, 2017 Fritz J. Scheller, the same lawyer representing Noor Salman, files his official "Notice of Appearance" to take over as Hardman's lawyer.
SIDEBAR - The issue of these lawyer changes is unclear. In 2019 letters Hardman has explained it two different ways while admitting he wasn't in a solid frame of mind at the time. The court docket shows a different variation of the story.
Hardman states that Karla Reyes was a student of Fritz J. Scheller that worked part-time for the Federal Public Defender's office, but Florida bar association and other sources show her having been licensed and in private practice for at least 10 years.
Hardman also states that Andrew B. Greenlee was an associate of Fritz J. Scheller, but neither of their law offices or websites provides any indication of such association.
My review of the docket, and other information, leads me to believe:
• Ms. Reyes, who often takes cases on behalf of the Federal Public Defenders office due to their caseload or co-defendant conflicts, was assigned at the start of the case by Magistrate Judge Gregory J. Kelly because Hardman didn't have a lawyer that first day.
• Hardman assigned power of attorney to his sister about August 29th, 2017 and she located Andrew B. Greenlee, but before Mr. Greenlee could do anything on the case except notify the court of his appearance, he was replaced.
• Fritz J. Scheller had approached Hardman first in the courtroom and later at the jail, after having been in the courtroom during Hardman's detention hearing.
• Hardman then had his sister work out the retainer agreement and financial details to give the case entirely to Fritz J. Scheller, removing Greenlee.
No matter the sequence or exact wording, by September 14th, 2017 Florida attorney Fritz J. Scheller was in charge of defending David Bruce Hardman.
In cases that involve search warrants one of the very first moves a defense lawyer would make is to file a Motion to Quash that search warrant. The motion asks a judge to quash a search warrant (not arrest warrant) when the magistrate issuing the warrant or the officer conducting the search knew or should have known that the affidavit supporting the warrant was simply not true in material ways, or a fabrication with the ulterior purpose to gain access improperly to a house, business or computer when a lawful request was impossible.
The affidavit may also have material omissions that are important and cause the magistrate to be misled. The legal argument would be that because the affidavit was false or insufficient, or had material omissions, the affidavit did not establish the required probable cause to allow the magistrate to issue the warrant.
Because, in a case that involves materials or actions that are considered expressive and therefore "presumptively protected at the time of the search" the standard for issuing a warrant is higher, so the bar to get a warrant quashed or to suppress evidence is lower for the defense attorney.
A defense attorney that is serious about defending a case, not just collecting his or her fee, will almost always file a Motion to Quash for strategic reasons. Once the motion is filed the prosecutors must answer the motion on paper, and later a hearing will be held in front of the Judge, during which witnesses, primarily law enforcement officers, will be on the witness stand under oath.
Because the warrant affidavit, and the warrant itself, must contain facts, or alleged facts, about the investigation and what led law enforcement to the suspect, that hearing provides a serious defense attorney with the opportunity to preview the prosecution's case, view and question the witnesses upon which the prosecution relies, and in many ways rehearse for the future trial.
There is nothing to lose, and much to gain by doing this very basic step.
In the Hardman case there is another element that makes this step even more important, because the affidavit used to secure the warrant, and the warrant itself, are not available in the public document system. There could be many reasons for that and they need to be explored.
Maybe the warrant contains the names of minors and those would be sealed from public viewing. That is unlikely because normal procedure is to keep those names private all along and the law enforcement would simple create the affidavit using phrases such as "Minor Victim 1" and "Minor Victim 2".
Another possibility is that they are not filed with the Court as part of a strategy on part of the Government. Maybe there are names and dates in there that they disclosed to the judge to secure the warrant, but are hoping the defense team doesn't notice, or at least doesn't become aware of until later in the proceedings. Not filing the two documents with the Court, unless the defense motions the Court for them to be produce, is not an uncommon prosecution move.
Yet another - certainly not uncommon - possibility is that the warrant affidavit contains a few tiny tricks, exaggerations, misleading statements, innuendos, or outright falsehoods placed there by law enforcement because the officer completing the warrant request and sworn affidavit felt that the absolute truth might not be enough for the Judge to sign the warrant. If the officer, and the Judge or Magistrate he is approaching, are aware of the higher standards required by the First Amendment, he or she is under even more pressure to stretch things a bit here or there.
The affidavit part of the search warrant process is a law enforcement officer, under oath, laying out for the reviewing Judge or Magistrate what laws are being broken, how he reached that conclusion, any witnesses that provided information, who the suspect is, what the location to be searched is, and what "particular" evidence of that crime is expected to be found at the location. As we learned in the case law quoted and discussed above, the standards are much higher and the Judge or Magistrate must be less flexible in a case such as Hardman's that involve materials that are "presumptively protected at the time of the search" as compared to a search for drugs or guns.
SIDEBAR - Let me divert a minute to detail a story that matches the previous two paragraphs, and shows how reviewing every word in the warrant affidavit and warrant itself is an important defense lawyer move.
Over the past 19 years I've downloaded and reviewed hundreds of cases, consulted (paid and unpaid) with lawyers and defendants in such cases, read every book I could find on the subject, participated in Law Review articles and more. Knowing the case from the start is very damn important.
One case involved a 17 year old model and a very experienced professional photographer. Law enforcement felt that he violated the law but nothing on his website or other publications was across the line. They believed, based on rumors from media anxious for a story, that he was violating the law, but not publishing the photos, and that those images would be found in his studio. They desperately wanted a warrant to get in and search to see if the rumor was true.
Eventually they took a model and her mother to a local police station. In a videotaped interview they asked dozens of leading questions.
At one point in the tape the investigator asked about her first photoshoot and she went on to describe how she was dressed in "a sexy marine outfit" (standard Halloween custom of camouflage green shorts and top somewhat like this). The investigator next asked her who was instructing her how to pose and she replied "All I remember is I was standing by a tree and the make-up girl told me to stand with my feet apart and act tough like a solider".
Later, when applying for the search warrant, the investigator's affidavit left out material facts such as other people being there, that she was in shorts and a crop-top type shirt, that she was outdoors in a public park, and even that she was standing. In the search warrant affidavit the officer selected to not quote her statement, but instead described the statement this way:
"The witness states that in her very first photoshoot the suspect repeatedly told her to spread her legs"
Clearly, the officer intentionally misled the Judge into thinking she was naked and that she was shy or embarrassed, thus holding her legs closed, but was repeatedly being told to spread her legs (to show her vagina).
The officer also altered the statement of the girl (model) so as to target the photographer. The "suspect" referred to in the case was an adult male photographer, but in the videotaped statement the teen model very clearly says "the make-up girl told me to stand with my feet apart and act tough like a solider".
That trickery was done by a very experienced law enforcement officer to mislead a judge and get a warrant because the truth very likely would not have been damning enough to get the warrant approved. This is just one example of several tricks in that affidavit.
In that case the defense lawyers caught those issues because they took the time to question the veracity of the original affidavit and warrant. Later, during trial when that officer was on the witness stand, the defense team was able to use the original videotape and his affidavit tricks to show his tendency to twist words, mislead, and lie under oath. It clearly showed the jury he couldn't be trusted.
The defendant in that case was found not guilty.
In the sidebar above I described a true story about how law enforcement can sort of twist and turn things to accomplish the goal of getting inside a person's home or business, when if they are honest and factual the First and Fourth Amendments would not allow them to do so. Keep that in mind as you read the following twelve paragraphs.
For the Hardman case there is not a copy of the search warrant affidavit or the warrant itself in the public record but we do have mention of it in the sworn statement of an FBI agent supporting the gun related charge.
Look closely at the precise wording used; "to search for and seize evidence of attempted production of child pornography".
Read again, "attempted production of child pornography".
That wording is very important and gives us, and should have given Hardman's defense team, our first facts and questions that must be reviewed and investigated.
Fact - If they had seen child pornography on Hardman's websites, blogs or DVD products, the investigation, and therefore the search, would have been about production, distribution and possession of those materials, not "attempted production". They could have simply shown illegal materials to a Judge or Magistrate and they would have the search warrant, no questions asked.
Fact - If they are looking for evidence that he "attempted production" they must lay out for the Judge or Magistrate what makes them believe that. Simply stating "we think he tried" or "we heard maybe he attempted to produce" is not enough. Those alleged facts and statements need to be reviewed and noted to bring up in a trial.
Question - What actions did they claim in the sworn affidavit and search warrant David Hardman took in his attempt to produce?
Question - Did the claims they made in the affidavit and search warrant meet the enhanced First Amendment standard?
Question - Did the law enforcement officer(s) rely on hearsay, innuendo or lies known to be lies, or suspected to be lies, from persons interviewed before creating the affidavit?
Question - To get the warrant approved, to meet the enhance standard, or both, did the law enforcement officer crafting the affidavit twist words, mislead or lie as in the example I showed above?
Fact - Hardman was never charged with "attempted production". Not on that first day when he was rushed to the Court, or later after they had months to review his phone, computers, email accounts, text messages, hard drives, back-up tapes, storage locker and more.
Fact - The knowledge that he is never charged with what they claimed was the sole reason law enforcement needed the warrant - under the enhanced First Amendment standard - to search his home in those early morning hours of August 17, 2017 should have signaled very loudly to any competent defense lawyer that the initial affidavit and warrant need close scrutiny.
Recall from the discussion above that a defense team attacking the veracity of a search warrant affidavit, and the wording or reach of the warrant itself, is standard procedure in normal cases such as those involving drugs or guns. And, considering the enhanced First Amendment standard, it should be automatic in a case such as Hardman's.
Yet, even with those questions and facts, Hardman's lawyer never filed any such motion to question or review the affidavit, to quash the warrant, or to suppress the materials collected while executing that warrant.
The primary reasons a lawyer would not file a pretrial motion to attack the search warrant are; (1) that he or she has no intent to take the case to trial because they plan to talk the client, or mislead the client, into a plea bargain, (2) they are busy with other cases and do not want to take the time or don't feel they are being paid enough to take the time; or (3) they are just plain lazy fucks.
The top reason a convicted person is granted a new trial during an appeal is known as "ineffective assistance of counsel".
One of the top reasons an appeal based on "ineffective assistance of counsel" is successful, with the Court of Appeals granting a new trial, is the failure of defense counsel to file these types of basic defense pretrial motions.
After becoming the primary lawyer on Hardman's case on September 14th, 2017, Scheller filed the following motions with the court.
October 12, 2017: Motion to Extend Time for Filing of Pretrial Motions until October 20, 2017.
In this motion Scheller told the Court he had not yet had time to review any evidence in the case, and thus had not yet had time to prepare any pretrial motions, such as to quash or attack the warrant. The motion was granted and the date to submit pretrial motions was moved from October 12, 2017 to October 20, 2017.
October 19, 2017: Motion to Continue Trial to the February 2018 Trial Term.
In this motion Scheller told the Court he had not yet had time to review any evidence in the case, and thus had not yet had time to prepare for the trial. The motion was granted and the date of trial was moved from November to February.
October 20, 2017: Motion to Extend Deadline to file Pretrial Motions until December 15, 2017
In this motion Scheller again told the Court he had not yet had time to review any evidence in the case, and thus had not yet had time to prepare any pretrial motions based on that evidence. The motion was granted and the date to submit pretrial motions was moved from October 20, 2017 to December 15, 2017
January 22nd, 2018: Motion to Continue Trial for a Period of 90 Days
In this motion Scheller told the Court he had not yet had time to review any evidence in the case, and thus had not yet had time to prepare for trial.
The court had previously scheduled a "Status Conference" for January 26, 2018 so the motion was taken up at that time. During this court appearance, while arguing to move the Hardman trial date for the second time, Scheller openly reminded the court that he was local counsel in the Noor Salman case and was very busy preparing for her trial in March.
It is not unreasonable to infer or imagine that he was so busy with the Noor Salman matter, and the international attention that went along with it, that the Hardman case was given very little effort.
The motion was granted and the date of trial was moved for the second time. The new date was to be in May 2018.
If you are sensing a pattern here you are absolutely correct. Hardman's lawyer repeatedly stated he had not had time to review the evidence in the case and repeatedly sought to delay the proceedings for that reason.
When it comes to those all-important pretrial motions, including moving to quash the warrant, to insure the warrant met the enhanced First Amendment standards, and to learn about the prosecution's case during the hearing on that motion, he twice asked for additional time to file the motion(s), but never filed a single one.
In contrast, for the Noor Salman case, lawyers filed no less than 19 pretrial motions. In doing so they discovered flaws and untruths in the Government's case that they later used to defend her at trial and she was found not guilty.
In my opinion, after having reviewed or been involved in dozens of cases of this type over the past 19 years, the lack of trial prep and basic pretrial motions is a big failure on the part of Hardman's defense. Hardman didn't know what to do but his lawyer damn well should have.
With the defense having filed no pretrial motions within the twice extended deadline the Court scheduled the Hardman trial to begin May 1st, 2018 with a Status Conference to be held on April 19, 2018, later moved up, by the Court's own motion, to April 17, 2018 due to a crowded docket.
Trial preparations in a case like this starts with those basic pretrial motions to discover what the Government has as evidence and is prepared to use at trial. The defense needs to know what they are claiming and how they plan to express it in court. The defense needs to know their game plan to best be able to develop their own plan to counter it.
A good defense lawyer would interview the witnesses before trial to get a feel for who they are, what they plan to say, and see if what they say now conflicts with what the Government claims they have said previously or will say on the witness stand.
Hardman's defense team (lawyer and staff) did not reach out to a single witness in the case.
A good defense team will also employ an outsider, such as a private investigator, to interview the witness, confirm or cast doubt in the stories, and look for ways to discredit the witness if need be.
Hardman's defense did employ a private investigator. Hardman states, but I've been unable to confirm, that he was told this investigator was actively working the case and doing those interviews. Hardman spoke directly with the investigator later in the proceedings and was told no interviews had been done.
A good defense team will also employ an outsider, such as that private investigator, to review and purchase materials in the marketplace to use as trial exhibits. The materials might include books such as Fanny by Jock Sturges (Amazon here) or Age of Innocence by David Hamilton (Amazon here) that are shown to the jury, along with the purchase receipt, to inform the jury as to what is legal in commerce so that jury can consider if the materials at trial compare.
Hardman's defense did not acquire or prepare a single trial exhibit as of just 2 short weeks before trial and it appears they never intended to.
A good defense team will interview, and re-interview, their client looking for information that will help the case, looking for information he may have that will help lawyers question witnesses during trial, looking for flaws in their own client's side of the story so they can work to keep those flaws out of the courtroom.
Hardman's defense, between September 14, 2017 and April 17, 2018 spent a total of under three hours with their client. I'm told most of that time was spent at first insuring Hardman they had things under control (September to February) and later that the case was "indefensible" (Hardman quoting Scheller in letters to me) and he should accept a plea deal offered by the Government.
SIDEBAR - Readers of April 2019's "The Hardman Report" know that Hardman also had been indicted for Attempted Assault on a Federal Officer after grabbing, and loading, his gun while Federal and local officers executed the warrant.
That charge, standing on its own, is likely indefensible due to the facts and witnesses to those facts. However, that charge carries a lower penalty and doesn't provide a reason for a defense lawyer to provide minimal effort related to the other charges in the indictment that implicate his video work.
With trial just two weeks away, after having already been delayed twice at the request of attorney Scheller, Hardman was in a bind, but so was the lawyer he had trusted.
Hardman was facing up to 30 years in prison for each of the 4 counts of the indictment that involved his video work and up to 20 years in prison for the 5th count involving his gun.
If Hardman was convicted at trial of all 5 counts in the indictment the judge could issue a ruling that the sentences be run consecutive, meaning the 30 years for the first count would be followed by 30 years for the second count and all 4 counts could become 120 years. That would be prior to the 20 year sentence for the 5th count. That type of sentence is extremely rare in cases not involving serious repeat offenders, death or terrorist activities.
It is much more common, to the point of being standard practice, for all sentences to be served concurrently. This left Hardman facing a maximum sentence of 30 years. Considering the current political moves towards sentencing reform directed at early release or lowering sentences for non-violent offenders, and the availability of good time reductions, the practical number is likely in the 10-12 range.
A few days after trial in the Noor Salman case reached its not guilty conclusion Hardman's lawyer started pushing him to accept a plea deal rather than take the case through a trial.
I'm speaking of the very trial the defense lawyer appears to have not done one iota of serious preparation for.
I'm told, but can't confirm, that the term "indefensible" was used over and over during a letter, phone calls from Hardman to his office, and one short in person meeting at the jail where Hardman was being held.
Just what did the lawyer and his staff mean by "indefensible"?
Are they referring only to the gun related "assault on a Federal Officer" count in the indictment? If so, why not defend the other counts that carry a potential sentence much longer?
Did they mean the case is "indefensible" because the video clips in question are vastly different compared to what Hardman has described to me? Again, I have not seen the clips in question, but descriptions in documentation, and from other sources, seem to indicate Hardman is being honest with me and that the clips are not far over the line, if at all, so certainly not "indefensible" for a lawyer serious about defending his or her client.
Did the defense team use the term "indefensible" due to lack of preparation on their part? Meaning they really meant to say "Hey Dave, buddy, thanks for the 50K, but we really should have started working this case way back in September 2017, but you know, other stuff to do and I had a chance to be on TV and stuff, so now that there is only two weeks left, it's pretty much "indefensible" at this point, sorry dude".
While the answer could be a combination of all three, and maybe other factors, I lean very much towards the third based on the documented moves by the defense team up to that point, which is totally encapsulated in four short motions requesting key dates in the proceedings be delayed.
It appears from his writings that Hardman, up to early April 2018, didn't actually realize how bad of a situation he was in at that point in time with just a couple of weeks remaining before his trial was due to start. He had zero legal experience, and had never studied any sort of cases except watching a few episodes of Law & Order. He was relying exclusively on the advice of Fritz J. Scheller, the same lawyer that up to that date seems to have taken no steps to defend the case or prepare for trial.
On April 26, 2018 David Bruce Hardman accepted a plea deal and signed a formal Plea Agreement that had been authored by the United States Attorney Office, pleading guilty to Count One (child porn) and Count Five (Assault on a Federal Officer). Counts two, three and four had been dropped (child porn counts).
A plea bargain, plea deal or Plea Agreement is meant to have advantages for both sides, as Wikipedia explains.
Plea Bargain by Wikipedia - The plea bargain (also plea agreement or plea deal) is any agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty or nolo contendere to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.
A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial on a more serious charge. For example, in the U.S. legal system, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry a custodial sentence.
Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor for the sake of helping future clients. However, defense attorneys are required by the ethics of the bar to defend the present client's interests over the interests of others. Violation of this rule may result in disciplinary sanctions being imposed against the defense attorney by the appropriate state's bar association.
This type of deal is the only thing keeping the justice system flowing. If all criminal cases had to go all the way through the trial process before reaching a conclusion the entire system would be backed up considerably more than it already is.
These deals, as Wikipedia tells us, are negotiated between the prosecution and defense attorneys, and in the end involve the defendant pleading guilty to something, usually a lesser charge or lesser number of charges, "in return for some concession from the prosecutor". It's a "deal" or "bargain" and both sides need to get something out of it. The prosecution only has three basic things they can offer a defendant to get a deal done.
One, they can offer to reduce the charges to something less serious, which by the very nature of being a lesser charge will carry a lighter maximum sentence, fine or both.
Example one: Bad guy is busted trying to break into a small business. To convict him at trial the prosecution would need to spend hours interviewing and preparing witnesses - including the investigating officer and lab technicians (fingerprints on window frame), then hours more in the courtroom seating a jury and going through the trial process. Because they usually have much more serious cases to pursue, the prosecution might offer that defendant a lesser charge such as trespassing, which would carry a much lower potential sentence and monetary fine. That is a mutually beneficial deal between the busy prosecutor and the guilty defendant.
Two, in a case with multiple charges that varied in seriousness and possible sentence, the prosecution may offer to drop the more serious charges if the defendant will plead guilty to the least serious charge, which by the very nature of being a lesser charge will carry a lighter maximum sentence, fine or both.
Example two: A person may run a stop sign as he is making a right turn, cutting off traffic and causing issues for other drivers. Police pull him over, small alcohol on his breath but maybe not strong enough for a full Driving under the Influence arrest. He is charged with driving while intoxicated, reckless driving and running the stop sign. Three total charges, but to avoid a trial the prosecution offers a deal to the least serious charge - running the stop sign.
Three, in any type of case the plea deal can also include the prosecution offering a specific sentence or at the minimum to ask the judge to limit the sentence to a certain time frame. This option varies on the state, county and Federal levels. Some state statues leave all sentence decisions to the judge, while others allow county level prosecutors to include specific sentences within the Plea Agreement. In the Federal system prosecutors have discretion to include a sentence recommendation and, if written into the agreement, if the Judge doesn't follow the recommendation for the defendant to withdraw the plea.
Example three: A person might only have one charge, but otherwise a clean record. To get the plea deal done the prosecution may offer to limit the sentence to just probation and community service.
All of these options, and the possibility of combining them, is negotiated between the prosecution and the defense lawyer. Like any negotiation both sides are looking for the best deal.
After reading the Hardman Plea Agreement it is not at all hard to see that Fritz J. Scheller is not a very good negotiator and, like other parts of this case, seems to have put very little effort into the process.
Before the Plea Agreement, as he was nearing his trail date, Hardman was facing a maximum of 30 years for the child porn counts and 20 years for the gun related charge, with the Judge being the person to decide what the final sentence would be.
After signing the Plea Agreement negotiated by Fritz J. Scheller two weeks before trial Hardman was facing a maximum of 30 years for the child porn counts and 20 years for the gun related charge, with the Judge being the person to decide what the final sentence would be.
No shit - The only benefits to Hardman by signing that Plea Agreement are; (1) he didn't have to sit in the courtroom for a 1-2 day trial and (2) he could cross his fingers hoping the Judge would appreciate not having to conduct a trial and in return issue a lower sentence. No guarantee, just a hope, like we all hope to win the lottery.
The Plea Agreement did have a clause that would prevent the government from bringing any additional charges, but that is pretty much meaningless. They had been reviewing his computers, tapes, CDs, DVDs and phone from August into late December and had found what they found. On January 10, 2017 the government filed a "Superseding Indictment" and raised the charges related to the models from 1 count to 4 counts. Clearly they had already charged everything they felt they could charge, so a promise to not charge more isn't a benefit.
There was a drop of 3 counts in the Plea Agreement but that didn't change the maximum number of years he was facing, so in effect was not beneficial at all to Hardman.
There was not a single word, phrase, term or line about sentence mitigation or recommendation negotiated in the Plea Agreement, even though this is the very first time in his 55 years Hardman had ever been in trouble.
The Plea Agreement included Hardman forfeiting his home and all personal property to the government to be sold at auction. The equity in the home and property generated about $118,000 for the government.
The Plea Agreement stated Hardman would pay any costs, fines, fees and restitution deemed due and proper by the Judge.
The Plea Agreement contained a clause that would forbid Hardman from withdrawing his plea if the sentenced was deemed more than he expected.
The Plea Agreement contained a clause in which Hardman waives his right to appeal the sentence as being too harsh.
Again, the motivation for Hardman to take this plea deal is absolutely minimal. He only saves himself a day or two sitting in the courtroom, and gives himself a tiny, tiny chance the sentencing Judge will appreciate not having to manage a trial and in return give a break in the sentence handed down.
The motivation for Hardman's lawyer to push for this deal, and maybe even mislead Hardman while pushing for this deal, is obvious. He doesn't have to do any work to defend his client and he doesn't have to face a trial looking like an unprepared intern fresh out of some tiny law school. And, he gets to keep the large retainer fee.
Don't worry - the low quality lawyering isn't done just yet.
On April 20, 2018 David Bruce Hardman reviewed and initialed every single page of the 30 page Plea Agreement, before putting his signature on the final page. His lawyer Fritz Scheller also signed the agreement, along with the Chief Assistant United States Attorney for the Orlando Division and the Assistant United States Attorney assigned to the Hardman case.
At that moment his fate was sealed because the Plea Agreement included a clause that would allow the prosecution to use the fact he had admitted guilt in a Plea Agreement against him, even if he changed his mind before the Plea Agreement was made official by the Judge.
On April 26, 2018 the Plea Agreement was accepted by Federal District Judge Carlos Mendoza. The Court scheduled a hearing to determine the sentence for July 12, 2018.
On June 25, 2018, a full two months after the plea was entered and sentencing date scheduled, Fritz Scheller put in a "Motion to Continue Sentencing Hearing for Sixty Days".
No, your eyes are not fooling you - as with every single other motion put before the Court by the defense attorney - this one was to again delay the proceedings.
That motion was granted and the new sentencing date was to be September 19, 2018.
Traditionally between the Court accepting a plea, and the sentencing date, the defense lawyer and his staff will do whatever they can to present the defendant to the sentencing Judge in the best light possible.
These steps can include things such as arranging for friends and family members to speak to the court in person, or by letter, about the Defendant's positive character, and pulling the Defendant's military (if applicable), work and legal history, then documenting the good parts for the Court to review hoping for leniency.
Another step is reviewing the sentence range written into the law the Defendant is pleading to, and digging into previous cases, both nationwide and in that same courthouse, to see what the standard range has been in the past for similar charges and similar defendants. This information helps the defense lawyer discuss the proper sentence or sentencing range with the Judge during the actual sentencing hearing, and then argue for a lower sentence based on other factors such as those in the paragraph above.
Perhaps the most important step the defense lawyer should take is to discover what the prosecution plans for the sentencing hearing. This would include what sentence they plan to argue for, what written statements witnesses or victims will be submitting through the prosecutors, what witnesses they plan to call and what those witnesses will likely state under oath on the witness stand and what exhibits or documents the prosecution plans to submit for the Court's review.
Over the 145 days between the Judge accepting the Plea Agreement and the final sentencing hearing lawyer Scheller prepared and filed with the Court a "Sentencing Memorandum".
The "Sentencing Memorandum" is a standard filing in which the defense explains to the judge who the Defendant is, how he has conducted his life before the current case, and other details such as military service or other potentially mitigating factors. It discussed the results of a polygraph test Hardman had taken months previous, and had several documents attached.
The documents attached include copies of basic information such as a copy of his military discharge; a letter from the polygraph examiner; a chart showing the average sentence of all Federal crimes over the past few years; a chart with statistics related to "United States Long Term Trends in Health" showing life expectancy for persons in various age ranges; a poorly scanned - almost unreadable - print of an email newsletter titled "Unjust & Ineffective" that discusses harsh prison sentences of sex offenders; A second poorly scanned - almost unreadable - print of a brochure from the General Accounting Office titled "Nonviolent Drug Convictions" and a third poorly scanned - almost unreadable - print of a brochure titled "Why Incarceration is not the best way to keep the community safe".
Some documents are clearly presented in the hope the Judge will hand down a sentence in the lower range Hardman was facing. I do understand why, at age 55, Hardman's future health might be considered, but knowing that he was in good health at that time, it feels like a minor point. How a discussion about "Nonviolent Drug Convictions", in particular sentencing of African-Americans, relates is unclear to me, reeks of last minute preparation and tracks along with the history of Hardman's legal team's lack of interest.
It is the polygraph test that I don't understand and in particular I don't understand why it is being presented at the sentencing hearing.
The polygraph test was conducted on December 8th, 2017 and contained about a dozen baseline questions to calibrate the system, plus these two questions.
As an adult, did you sexually touch anyone under 18 years old?
As an adult, did you have physical sexual contact with anyone under 18 years old?
Hardman answered "No" to both questions and his answers are deemed to have been truthful. That is good, but why even ask?
At no point in the proceedings, going back before they searched his home on August 17, 2017, was David Bruce Hardman accused of having sexually assaulted any of the minors he worked with.
There are no notes in the files that even ask that question.
The law enforcement officers, before the search and arrest, had spoken with Hardman (undercover), with at least 2 of the parents, and several of the models. I don't believe any of them made any sexual assault claims against Hardman and I base that on the search warrant itself.
Recall, the search needed to meet the higher standard due to the First Amendment, and it was strictly limited "to search for and seize evidence of attempted production of child pornography". If they had been told he had sexually assaulted one of the models they would have asked for a warrant to search for evidence of that crime, and for his arrest, and would not need to meet the higher standard due to the First Amendment. Things would have been easier on the law enforcement officers if they had any indication of sexual assult.
Making the situation even odder is the fact that the polygraph test was conducted on December 8th, 2017.
By that date the law enforcement officers had done the paperwork for the search, conducted the search, completed sworn affidavits, and put forth the first criminal indictment with charges of child pornography and assault on an officer. No mention at all of sexual assault.
By that same date Hardman's defense lawyer Fritz Scheller had filed a Notice of Appearance to inform the Court he would be Hardman's lawyer from that point forward and three additional motions to delay the proceedings.
Then, for unknown reasons, he sends in a polygraph examiner to ask those two questions of Hardman.
I can't be the only one to notice that the only action the lawyer took to defend Hardman was to defend him from a crime he had not been accused of.
The results of the polygraph are one hundred percent meaningless in this case. If they showed Hardman had done something bad the lawyer would be obligated to keep that secret. If they show, as they did, that Hardman had never sexually assaulted a minor, they also have no value. Scheller can't use the results to get sexual assault charges dropped - because he was never charged with that crime in the first place.
It simply makes no sense from a legal strategy point of view and he may as well have set out to prove Hardman never trespassed on the moon to steal moonrocks.
Diverting for a few paragraphs - Hardman himself tells me, after 20 months of reflection, that he thinks the polygraph event was just a stall by Scheller to look like he had things under control. He claims that when Scheller first came along it "was a God send", but over the next few months he would be told things by Scheller and his office that he now knows are not true because he now has files in hand looking to appeal.
The main thing that sticks out to Hardman involves the private detective. Hardman indicates that he was told, more than once, that Scheller had this private detective out in the field interviewing the girls and parents while preparing for the case. I explained above how this is not only normal, but important from a defense point of view, in particular when it comes to the search warrant.
The questions that need answers include; did the information law enforcement claim in their search warrant match what they had been told by the models and their parents? Did law enforcement threaten or coerce the models or victims? Did one of more of the mothers lie to cover their own ass? That is just a start.
Most of us have heard the old lawyer rule about witnesses interrogation that goes something like "Never ask a question you if don't already know the answer". Well, the pretrial preparation part of a case is where you learn those answers, and thus know what you can ask of a person on the witness stand. This is basic trial prep work, and if the lawyer is busy, it is common to have private investigators, paralegals and even interns go out in the field and do some of that work.
When the private investigator accompanied the polygraph examiner to the jail Hardman was able to speak with him and ask how the interviews had been going. The guy had no idea what Hardman was talking about. When Hardman got back to his cell he confirmed that the name of the private investigator there for the polygraph was the same name he had been told was working the case.
It seems that the entire polygraph episode was to leave the impression that the legal team is working hard. I don't see any other reason the lawyers have for conducting a test to prove the client didn't do something he wasn't being accused of having done.
Back to the sentencing memorandum - I also don't see the point of putting the polygraph test results in the official file just before sentencing. It means nothing and is not related to any of the charges originally filed in 2017, charges filed in the 2018 Superseding Indictment or mentioned in the Plea Agreement.
Why put any words such as "sexually touch" or "sexual contact" on the record, before the Judge or in the mind of the Judge?
That document, along with documents related to "Nonviolent Drug Convictions", look like last minute desperation by the legal team to at least appear as if some effort had been put forth.
The September 19, 2018 sentencing date arrived right on time.
For the September 19, 2018 sentencing hearing Fritz J. Scheller was at least 15 minutes late and the first page and a half of the transcript of that hearing are dedicated to his tardiness.
Not only was he late, but his ass was - like always - very unprepared.
The prosecution had filed their own Memorandum with a couple of exhibits attached.
One exhibit was a printout from Hardman's email account which includes emails and replies with the mother of a model that also served as the driver for a couple of other models.
The second exhibit filed by the prosecution was a copy of a letter from a counseling program in central Florida speaking of how much they charge per hour and how many hours of counseling the counselor believes a girl would require in this type of situation.
As the sentencing hearing moved from the tardiness of Fritz J. Scheller to the normal proceedings the prosecution introduced their first exhibit - the "email chain" as proof that Hardman had used a computer in Count 1 of the crime he had plead guilty to and was being sentenced for.
The United States Code (laws) and the sentencing guidelines have a provision that allows for a "sentence enhancement" if a computer or computer network is used in the commission of a crime against children. Basically, the Judge can be encouraged to enhance the sentence if the bad guy used a computer or network.
The prosecution was asking the Court to make the sentence longer because Hardman used a computer, and this email chain exhibit was submitted as proof of that.
Scheller was unprepared for this move by the prosecution.
He first tried to get the Court to ignore the email chain exhibit because it wasn't part of the plea deal. That fails because he is correct: not a single sentencing provision was negotiated by Scheller in the plea deal, so there is nothing in the agreement preventing or allowing the enhancement.
Scheller did, correctly, bring up that the email chain exhibit was dated in 2017 and the crime he was being sentenced for was dated in 2014. That of course didn't matter, because Scheller had allowed Hardman to admit the computer issue in other parts of the Plea Agreement, and even the Judge knew it and was prepared for it.
Scheller was unprepared for this move by the prosecution, but the Judge wasn't. Here is the relevant paragraph from the official Court transcript. Document 45 is the Plea Agreement.
Do you see that? The Judge, with a busy docket in his courtroom, was aware enough within his legal experience and professionalism to anticipate that this would become an issue at sentencing.
Think about that detail; the defense lawyer, who is supposed to be prepared and defending his client, was unable to see this issue coming, but the Judge clearly did.
Scheller was shut down after that paragraph and the Court allowed the email chain exhibit into the record and for the use of a computer to be a factor in his sentencing decision.
Don't worry - the low quality lawyering isn't done just yet.
Over the next few minutes Scheller introduced Hardman's sister, and spoke a bit more, then it was the prosecution's time to speak.
Before we move along I need to make a few facts very clear;
• The criminal indictment Hardman faced before the Plea Agreement included 4 counts related to child porn and females under age 18.
• Count One involved a female with the true initials of K.N.
• Counts Two & Three involved females with the true initials of A.S. and K.J.
• Count Four involved distributing the materials created in Counts One, Two and Three, and thus the same three females with the same initials.
• Law enforcement had investigated Hardman before the search of his home and at no time is there mention of a victim with true initials H.C.
• After the officers seized computers, phones, tapes, CDs, DVDs and external drives on August 17, 2018, they spent hundreds of hours reviewing those items before coming up with the Superseding Indictment filed in January 2018 that listed only Counts 1-4, and only females with the true initials K.N., A.S. and K.J. At no time is there mention of a victim with the true initials H.C.
• Hardman's Plea Agreement includes his admission of guilt to Count One (K.N.) and it is that count, and only that count, along with the gun related charge, that Hardman is in the courtroom to be sentenced for.
Neither Count One victim K.N. nor her mother showed up to speak against Hardman at the sentencing hearing. The alleged victims from dismissed counts two and three, A.S. and K.J., and their parents also failed to showed up or speak against Hardman at the sentencing hearing.
Suddenly, filed on the day of the sentencing hearing, we have a sales pitch type letter addressed to the Court from a counseling service suggesting that "victim" H.C. needs $3000 paid out of the money seized from Hardman so she can use that money to pay $95 an hour to the private counselor.
Next, during the sentencing hearing the prosecution brings to the witness stand "H.C's. Foster Mother" to speak on H.C's behalf. She spoke about how H.C. was a victim, had run away from home, and more.
Hardman's lawyer doesn't object to this in the slightest.
After some discussion, a "Special Needs" attorney is called to the stand to speak on behalf of H.C. The statement is made that she is "court appointed", then clarified that she is not court appointed by the Federal Court.
That is not explored at all by Scheller, and likely should have been. If this girl has court appointed counsel but that attorney is not appointed by this Court or related to this case, shouldn't Scheller get it on the record what the other case is about? Afterall, this lady lawyer is going to make a statement before the Court based on things she didn't see and was only told about by H.C., but if H.C. is in some other sort of trouble herself, doesn't the reliability of her statements to the court appointed lawyer come into play?
There is some back and forth at this point about if Scheller will be able to cross examine her, and it is decided that she'll just make an "unsworn" statement on behalf of H.C., and not be cross-examined.
The "Special Needs Attorney" acting on behalf of H.C. starts talking about how she is a victim of "human trafficking", but says "not here", so it reads as if that "human trafficking" is another case altogether.
Scheller jumps in and objects as you can see on line 20 from page 22 of the transcript below.
More important in that screen capture is what the Judge (COURT) says on page 23, starting on line 3.
"I won't consider anything that's outside the realm of what's charged and what's been presented as evidence"
Clearly, like Hardman's attorney Scheller, the Judge doesn't realize that H.C. has nothing to do with the case that is before the Court at this time. The statement made starting on line 3 surely confirms the Judge was under the impression H.C. was the victim of Count 1, or at least the dismissed Counts 2 and 3.
She was neither.
Maybe she was videotaped by Hardman at one time but that has never been discussed at any point in any documents related to the case before the Court, is not claimed in the Plea Agreement and damn well has not "been presented as evidence".
Scheller never mentions this issue to the Court so it is reasonable to infer that he was so fucking unprepared during every single day of this case that he didn't even know who the alleged victims are.
At a bare minimum Scheller should have been objecting to this "victim's" lack of standing, if only to put it in the official record for appeal, if the Court did knowingly allow it. He didn't object to that issue at all.
Without it being brought before the Court on objection the Judge was not made aware of it, and thus can't be faulted for allowing the "Special Needs Attorney" acting on behalf of H.C. to make her unsworn statement about a victim that wasn't actually a victim of the case before the court.
And, oh, and what a statement it was. She was allowed to go on for several minutes with what appears to be a prepared statement being read loudly, quickly and aggressively from the podium. I'm attaching the entire transcript below, but this screen shot is a good discussion point.
That type of aggressive talk goes on for page after page of the transcript as she refuses to be interrupted, even by the Judge.
Notice her use of the word "click" over and over to simulate the action of the photographer taking pictures of H.C.?
David Bruce Hardman produced videos and used camcorders. There is no "click" over and over and over again. The list showing what was seized from his home doesn't list a photographic camera, camcorders. The forfeiture order in this case also lists camcorders, but not still photo cameras.
There is no "click" in Hardman's production process, much less every few seconds, and this "Special Needs Attorney" clearly made that up. The question is what else did she create in her own mind on behalf of the person known as H.C that wasn't a victim in this case?
She goes on to say that Hardman needs to go to prison so he hears the "click" sound himself, such as the clicking of the handcuffs and clicking of the prison gates locking. Her statement was clearly well-rehearsed, powerful and dynamic, but not accurate as to the case before the court, and not at all representing the count one victim in the case before the court, or a victim in the dismissed counts.
After this trickery, in which the prosecution used some vague and conflated language to get in statements and testimony related to a girl named H.C., (a female that was never a part of any charge or allegation in this case), Miss H.C. was awarded $8675.00 in restitution and went back to selling photos and videos of herself on Twitter and Snapchat.
David Bruce Hardman was sentenced to 30 years in prison and all his property was awarded to the government to be sold, from which H.C. will likely receive her check.
Did Hardman receive such a long sentence based on the loud and powerful testimony by the "Special Needs Attorney" related to H.C.? I have no idea, but it had to be part of the reason because there is nothing else on the record that calls for such a term in prison, in particular anything that has "been presented as evidence".
That would include the very video tape, or edited DVD, that Hardman plead guilty to producing in Count One or is alleged to have produced in the dismissed Counts Two and Three.
Hardman's lawyer never filed any motions in the case that would require a hearing to be scheduled, witnesses called or evidence brought into the courtroom for review by the Court.
Hardman waited through the delays requested by his lawyer and eventually signed the Plea Agreement in April 2018.
Hardman's lawyer, after yet another delay due to his unpreparedness, filed a Sentencing Memorandum, with his own attachments as I outlined above. While he could not have had possession of the video, or filed it with that memorandum, he could have requested for it to be brought to the Court at sentencing by the FBI agent who was already scheduled to attend.
The above three paragraphs, based on the official record, clearly indicate that the video that forms the basis for Count One of the indictment, which is the count that he would be sentenced for, has never been viewed by the Federal Judge passing down judgement and sentencing.
I'm confused how a 30 year sentence can be passed down by a Federal Judge without that Federal Judge having seen any of the materials in the case. In the courtroom, before the Judge, no videos, no screen captures from videos, no copies of Hardman's website, and none of the raw material on Hardman's hard drives has been shown.
He was charged with creating visual depictions of minors participating in sexually explicit conduct, but not one single second of the visual depiction has ever been seen by the sentencing Judge.
Did the Judge rely on the "Special Needs Attorney" related to H.C. to determine how serious of a violation Count One really is?
I sure hope not because, not only is H.C. not the victim in the case, but the "Special Needs Attorney" related to H.C. also has never seen the materials in Count One (or dismissed Counts Two & Three). The "Special Needs Attorney" related to H.C., and H.C. herself, are not in any way related to the case charged (Indictment) or in the plea (Count One).
Clearly, the Assistant United States Attorney on the Hardman case, pulled a fast one getting people to speak (unsworn) against Hardman, while leaving the impression they are representing the Count One victim.
To this day I do not believe the wildly unprepared, and late, defense lawyer Scheller understands that the people speaking in the courtroom that day were not part of the case and are in no way attached to anything that has "been presented as evidence".
To this day I do not believe the busy Judge knows that the AUSA got tricky on that day or that the people speaking in the courtroom that day were not part of the case and are in no way attached to anything that has "been presented as evidence".
Scheller definitely should have known and he should have made the Judge aware of it.
Fritz J. Scheller failed in his duties to David Bruce Hardman on that day, and every day going all the way back to the day he met Hardman.
I'm not claiming Hardman is innocent or that the materials specific to Counts 1, 2 and 3 in the indictment are legal. I'm in the same position as the Judge and I've never seen them. I'm only saying Hardman relied on this lawyer and the lawyer did a damn shitty job.
David Bruce Hardman seems to have been confused during the entire process, from the moment of arrest to the handing down of the 30 year sentence. I've exchanged hundreds of pages of letters with him and have found him all along to not fully grasp the seriousness of the situation.
Originally he seemed to think it would be over in a few weeks, maybe as soon as the FBI agents had time to look through all his materials, or when his lawyer helped them compare his videos to other products in the marketplace.
It never really hit him, even after signing the Plea Agreement, that he would be spending the rest of his life in prison.
Shortly after the sentencing hearing Hardman tried to talk with lawyer Scheller to ask what happened. It sounds, from Hardman's letters, that he was under the impression that he would likely be sentenced to the 15 year minimum, get a downward credit from that due to mitigating factors such as clean criminal history, and military service, leaving him with something like a 10-12 year sentence, credit for the year already done before sentencing, and eligibility for parole after serving about one half the time.
Lawyer Scheller never visited Hardman in custody after the sentencing. Hardman filed his own hand written notice of intent to appeal, and because that appeal would call into question Scheller's handling of the case, the Court determined that was a conflict, removed Scheller and appointed the Federal Public Defender's Office, to represent Hardman.
In the American legal system you cannot simply appeal because you are unhappy with the verdict of the judge or jury. There needs to be some sort of major issue, such as a constitutional violation by the prosecution, incorrect jury instructions or newly discovered evidence.
Hardman never had a trial. He signed a Plea Agreement that very clearly admitted he violated the Federal law regarding visual depictions of minors in sexually explicit conduct (child porn), and further that he tried to assault a law enforcement officer. After interviewing Hardman on the record and confirming the facts the Judge accepted that Plea Agreement and rendered him guilty as charged to Counts 1 and 5.
It's pretty damn hard to appeal your guilt when you initialed 25 pages, then signed the final page, of a Plea Agreement stating you are guilty.
In a normal court case, with a guilty verdict and the defendant being sent to prison, there are two issues that may be open to appeal.
The first would be the process up to and through the trial. Did the law enforcement officers, the prosecution and the Judge precisely follow the law and constitution? If they didn't, is the error serious enough that the Court of Appeals deems a new trial should be conducted? Did the defendant have legal representation? If so, was that legal counsel effective, and if not effective did the lawyer errors put the defendant in such jeopardy that a new trial should be ordered?
That is a pretty damn high bar to reach before an appeal is granted.
The second thing that is often appealed is the sentence itself. This is automatic in death penalty cases, and often comes up in day to day criminal cases. The question is did the Judge go beyond what is proper for the crime the defendant was convicted of or far beyond what was agreed to in a Plea Agreement? If so, was it a serious enough error that the Court of Appeals sends the case back to the District Court for resentencing?
That is also pretty damn high bar to reach before an appeal is granted, and then during that appeal the bar is even higher before a case is remanded for resentencing.
I should note that earlier in 2019 in the case of United States v. Abdullah Hamidullah the Court of Appeals remanded the case for resentencing. Hamidullah had taken a plea deal in a case that involved multi-state prostitution and minors. He was given a very long sentence and appealed based on items being presented as facts in pre-sentencing reports and at sentencing that were not on the official record and had never been testified to. It was the same United States Attorney's office and the same Federal Judge overseeing the Hardman case.
Hardman has determined that he wishes to appeal the entire case based on "Ineffective Assistance of Counsel". That simply means he believes his lawyer did not perform as he should, and that this failure denied him of legal representation.
Due to Federal Court of Appeals rules, and long standing precedents, frivolous appeals are discouraged. If the Appellee - in this case Hardman - is in custody, and using the services of the Federal Public Defender's Office to prepare the appeal, the lawyer there is required to study the case and look for issues that can be appealed, then file a statement to the Court of Appeals. This statement is known as an "Anders Brief" based on the 1967 case of Anders v. California.
In the "Anders Brief" for the Hardman appeal, filed in February of 2019, the Federal Public Defender's Office reported to the Court their attorney's found no issues that they believed would lead to a successful appeal, based primarily on the fact the Hardman initialed and signed the Plea Agreement, and in Court informed the Judge that he had done so without coercion or promises. The Federal Public Defender's Office moved to withdraw from the case as there was nothing to work on.
Hardman is now trying to appeal both that decision and the overall case. His own efforts to be granted the right to appeal, even after signing the Plea Agreement acknowledging he was giving up his right to appeal, have all be denied by the Court of Appeals in Atlanta, GA.
He is convinced that he and his prison friend Zack can get the Plea Agreement and guilty plea wiped from the record and the prosecution will be forced to start all over again. He has yet to get the Court of Appeals to accept the case for review, much less been able to move on to writing the actual appeal documents with all the citations and details that requires.
I suggested that he use the successful appeal from the case United States v. Abdullah Hamidullah as a guide and concentrate on appealing only the long sentence. There is a legitimate series of questions in the Hardman sentencing hearing documents and transcript - exactly like in United States v. Abdullah Hamidullah. This includes documents that do not relate to the counts and the statements from persons representing the female H.C., when H.C. was never part of the charged case or counts in the plea.
I sent him all the documents filed by both sides in that appeal. I also sent many of the cases that had been cited in United States v. Abdullah Hamidullah. It's a good roadmap for appealing the sentence in a very similar case.
There are several additional bits of information I find interesting but didn't fit exactly into the overall story. Here are a few listed in no particular order.
• I first became aware of the Hardman case a bit over two months after his arrest. On November 1, 2017 I wrote to Fritz J. Scheller's office and let him know I was available to help if need be. I explained that I've been following obscenity and child pornography cases in detail for 19 years, going all the way back to when I was first planning my own websites.
I further explained that during that time I've read dozens of cases and appeals, consulted with lawyers in a few cases on the state and Federal level, consulted on two law review articles, and been in the courtroom for actual trials on the child porn subject.
Mr. Scheller never replied.
• On November 8th, 2017, after messages from myself and others, Luke Lirot, former president of the First Amendment Lawyer's Association sent email to Fritz J. Scheller's office offering to get involved. When no replay was received within 2 days, Luke also sent a letter. That follow-up letter also never received a reply.
• A TV station in Florida had done a story on Hardman and his work as far back as 2006. After that story came out the local home owners association tried to kick Hardman out of the neighborhood, and tried over and over to get him arrested.
Both the Melbourne Police Department and the Florida Department of Law Enforcement had checked on him in 2006 and 2008. It is safe to assume that, at the request of the neighbors they had looked at him several times over the years and had never found anything they could charge him with.
That last point is interesting when we consider that the Florida law on the books since July 2008 is actually tougher, compared to the Federal law, because it speaks of the breast area and it wouldn't be hard to at least charge Hardman for scenes in which the minors are wearing wet t-shirts.
• I have intentionally left out names of the Judge, prosecutors and FBI agents. While they are an important part of the case, my discussion today is meant to focus more on David Bruce Hardman and his lawyer Fritz J. Scheller.
• The case file states that Hardman was in business from 2010 to the 2017 arrest. That is not accurate as he had been producing and marketing videos with minors as far back as 2005. I'm guessing the confusion comes from the changing of domain names over the years. He once changed in an effort to "hide" from the home owner's association. Another time he changed when he wished to try new marketing techniques. Law enforcement most likely found the 2010 date from domain registration records of a newer domain.
• Curiously, Hardman thought his case made the national news. He once told me he expected multiple people to be writing him at the jail where he was being held and that they would be organizing and donating to a "defense fund". Unfortunately, his sister and I are the only persons that ever reached out to communicate or help. The story made it to two regional TV stations. One of them didn't cover it until 10 weeks after the arrest and did so in the classic "Fake News" manner.
• In the hundreds of pages he has written to me over the past two years he seems to indicate that while his business was running he was often very influenced by customers and other persons emailing him. He quotes them in statements such as "Mike in New York said it meets community standards" or "This guy says he bought other stuff like this and it's all good".
I'm not saying his material broke any laws, but he certainly shouldn't have taken advice about content legality from random customers. He never once consulted a lawyer during his many years in the video business.
• One point that is unclear to this day is exactly where the video footage in question came from. Some documentation seemed to indicate that it was footage found on a hard drive in a storage unit. In letters Hardman indicated it was footage that had been edited out of raw materials used to produce a retail product, but at other points that it is a few seconds of a retail product.
Some of this confusion may be coming from the differences between the original indictment, the superseding indictment, and the various counts. Or, some of the confusion may be because he doesn't actually know. Recall, the video footage Hardman was charged with producing has never been shown in any court proceedings, thus he likely doesn't know the exact footage himself.
• There was some discussion that indicates we are talking about 12-18 seconds of a 45-60 minute long DVD, but that can't be confirmed.
• One curious point is this; The prosecution fought hard for the maximum sentence, even going so far as to be a bit devious in how they got the loud and powerful testimony by the "Special Needs Attorney" related to the unrelated H.C. on the record.
If the video produced by Hardman and referenced in Count 1 was so horrible wouldn't they have shown it to the Judge, even if only in chambers, to make the point that Hardman had gone far over the line and needed the maximum sentence? Yet, at no time in the process was a single second of video, or screen captures of the videos, shown to the Judge.
Opinion by Guessing - The case of David Bruce Hardman remains part mystery with enough twists, turns, lies, myths, failures, mistakes and unanswered questions that we'll likely never know every detail of the true story. I'm not convinced that anybody actually knows every detail of the true story. Hardman himself has been intentionally vague in some answers, and completely ignored other questions, making it unclear to me what all the fine details truly are.
As you read my opinion below please remember that it was formed by guessing at some answers, and often by guessing which of two different answers or stories given me by Hardman over the past 23 months is true. I've read and reread every case document that is available 2-3 times, and I've read and reread every letter I've sent him and his replies 2-3 times, but I do not have access to that very important original search warrant affidavit and search warrant to see the actual words and claims typed by the original law enforcement officers assigned to his case. Without those two documents part of the story will always be vague and mysterious.
In the following opinion I make an educated guess here and there to fill in details.
• Hardman was in the video business, working with minors, going back to at least 2005 and continuing into the summer of 2017.
• During that time frame he faced many detractors online and within his own neighborhood. It's known the neighbors had complained to local police multiple times over those years, and in response to those complaints local police had reached out to the state police at the Florida Department of Law Enforcement for legal opinions and investigative tips. Over those twelve years they found nothing in his retail products or advertising that violated the Florida Statue (law), which is known to be a bit stricter compared to the Federal Law under which he was eventually charged.
• At one point in time Hardman started working with girls below the teen age range and this increased the frustration of his neighbors and the scrutiny by law enforcement, but again over time they found nothing in his retail products or advertising that violated the Florida Statue.
• By 2014, continuing into 2017, Hardman became more and more frustrated with his search for new models, and the reliability of the current models, or the parents of the models that often canceled production plans at the last minute.
• Also by 2014 and continuing up to his arrest Hardman was growing more and more interested in his other side business of hand building unique recliner type trikes. This drew his attention away from the video business, while at the same time causing self-pressure to increase video sales because he was using lots of money on the trike business, planning a move home to South Carolina, and more.
• Hardman was also causing self-pressure on his bank accounts by participating in a cash draining sexual friendship with a young women in her 20s.
• In those last few years of the business he seems to have succumbed to the myth that the more daring a videographer is with the teen models the more money he'll make. Pressure and desperation are known to make such myths easier to believe and he started to get more daring and closer to the line.
Note - that myth is not true and I'll write about it with documentation in the future.
• Spring 2017 he scheduled and rescheduled video sessions with a couple of girls. They canceled, reset, cancelled again, reset again and he finally completed the project in late May with just one of the girls actually showing up.
• That girl's parents happened to be in the middle of a separation or divorce and the father had legal custody. The video session took place on the mother's visitation weekend, but her father had placed a tracking application on her phone to insure the mother didn't try to leave Florida with his daughter. When she arrived home he asked her why they had been in Melbourne, Florida over 100 miles from the mother's home. Not satisfied with her answer he took her phone and found some behind the scenes snapshots of her in a tiny outfit.
• The father called the lawyer working on the divorce, then the Florida Department of Children and Families, and eventually the FBI. In those conversations it is very likely the term "child porn" was tossed around by people that do not fully understand the legal definition, but see something they object to, and thus have selected to identify it by that term.
• Those investigations did not reveal any illegal materials with that girl and she was not part of this case and is also not the mysterious H.C.
• An experienced agent at the FBI determined Hardman needed a bit further checking into and created the fake online persona "R.H." as the father of a daughter interested in being a model.
• Over weeks "R.H." and Hardman communicated by email. I assumed that at some point in those emails, Hardman said something or agreed to something that "R.H." knew was over the line, or that "R.H." was confident he could present in an affidavit as being over the legal line. We know that whatever he agreed to, no matter if he truly meant it or not, was enough to get a Federal Judge or Magistrate to issue a search warrant authorizing a search of his home, even if by forced entry, to look for evidence related to the "attempted production of child pornography".
• The raid was most likely conducted, as the documentation seems to confirm, because the FBI's true motivation was to get in the house by whatever means because they assumed once there they would find a vast collection of child porn that Hardman had either produced or collected.
Note - the assumption that a content producer working with teen models automatically has some sort of illegal materials featuring the same models stashed around his home or business is common among law enforcement and teen model detractors (attackers). I've never seen it come true in a case involving a professional producer. Private dudes shooting girls for fun, yes, but professionals that run a photo, DVD or website business based on teen models, never among the cases I've reviewed or the professionals I've known to have been investigated.
• The point above helps us understand why "attempted production of child pornography" is never mentioned again after the warrant is issued and he was never charged with that crime. The FBI likely knew it wasn't true, or was a "stretch" of the truth, and was actually just a technique used to get the warrant, and maybe to avoid meeting the enhanced standard the First Amendment should have required in that warrant application.
• Once inside the home and the nearby storage unit they didn't find the massive trove of illegal materials they "assumed" they would find.
• Over the next several months they reviewed everything they seized from his home and storage unit. They only came up with three video segments they could claim violated the Federal law and charged him with those segments 5 months after the raid. I'm saying "segments" because I'm told, but can't confirm, that count one revolves around a 12-18 second portion of a DVD that runs over 45 minutes.
• After a pre-dawn raid on his home, and having held him in custody 5 months, they couldn't simply drop the case, so they pushed those three counts even if the materials are not near as bad or voluminous as they had "assumed" it would be. Plus, Hardman had made them very upset by attempting to load a gun as they entered the home.
• I believe the government's case was never a rock solid child porn case. If they had discovered dozens, or hundreds, of illegal images within Hardman's home or storage locker they would have charged him with dozens, or hundreds, of counts and they would have published press releases, and likely held a press conference. They did not do that, and in fact the case was kept very much on the "down low" right from the start. A TV station that had done previous stories on Hardman didn't even know about the arrest for 8-9 weeks.
• Confirming, at least for me, the point I made in the previous paragraph is the fact that the material was never shown to the Judge at the sentencing hearing. If it was wildly gross and over the legal limit they would have used those materials to push the Judge for the maximum sentence. Rather than do that, they used a strange email chain dated in 2017 to ask for the computer usage sentence enhancement and tricky phrasing to get the "Special Needs Attorney" to speak, "unsworn", about how "H.C. is a devastated victim, when she was not at any time previous listed as a Hardman victim.
• Once Hardman was in the system they would do what they could to keep him. Clearly his situation would have been better without the gun related assault charge. If it was simply a case about three counts of child porn and that porn wasn't as bad as originally expected, a good defense lawyer would not have used the term "indefensible" and would have taken the case to trial or at least negotiated a Plea Agreement more favorable and fair to his client.
• Hardman's lawyer may be a good defense lawyer in cases that do not include videos or other materials presumptively protected at the time of the search, or have a reputation based on other types of cases as a good defense lawyer, but his performance in the Hardman case was lazy, weak, unprofessional, lacking the special knowledge and experience required by the First Amendment, and just plain ineffective.
Astute readers will notice some detail changes between this post and the original April 2019 post The Hardman Report. That is due to continuing research, the review of new documents and transcripts from his appeal efforts, and new or revised answers from Hardman himself.
I'll repeat - after all this time and research I'm not rock solid confident in any of the tiny details but I'm confident I have the main story outlined as accurately as it can be with the information publically available and the various answers I've been given by Hardman.
That closes out my writing on the David Bruce Hardman case as there isn't much left to discuss. Links to the four main documents I've discussed are below.
October 15th, 2019
Avon, CO. USA
Update November 11th, 2019
Some last minute information came in after posting the story above. It changes a little of the story above and you can review that fresh information here.
Hardman Case Documents