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Monday, June 05, 2006

3 Strikes...may need further review

--posted by Tony Garcia on 6/05/2006

I was a big proponent of the 3-strikes you're out laws. But maybe there should be some kind of exception allowed now and then.

What if a burglar has 2 strikes already and somehow ends up possessing contents of a safe the was, well, reported missing from burlary. Those possessions include a memory card...and on that memory card are images of a man raping/molesting a 1 or 2 year old girl.

The burglar now is in a bind. Turn over the evidence of the molestor and face prison in life for the burglary that brought the evidence to him OR do nothing and let the girl continue being subject to molestation for who knows how long.

Sadly this is not a hypothethical situation.
Matthew Hahn glared in disbelief at the digital photographs of a man molesting a girl. She was only a year old, maybe two.

The next thing to do would be obvious -- call police. But Hahn had been convicted of burglary more than once. And the memory card on which he discovered the photos came from a stolen safe.

Hahn knew being nabbed for another crime could make him a three-striker and send him to prison for life. But the images were burned into his mind. One photo showed some freshly overturned earth -- could the little girl have already been killed and buried?
Hmm, now you really need to sit back and think about this in an honest manner. Most people faced with this dilemma will see the guarantee of life in prison and decide it is not their problem.

Fortunately this guy figured something out.
After a sleepless night, Hahn took the card, placed it inside a pink change purse and attached a typewritten note. It said: "Please remove this animal from the streets."

He wrapped the whole thing in a package that he jammed into a random mailbox. It was addressed to the Los Gatos Police Department.
Hahn, who spoke with Knight Ridder from Elmwood this week, refused to talk about where he got the memory stick or whether he burglarized Aitken's apartment that night.

But he described sliding the card into his computer and watching as the thumbnail photographs popped up on his screen. Among some shots of fishing and a minor car accident were others, different. He clicked on them.

"It seemed like it wasn't possible what I was seeing," Hahn said. "I turned away and when I looked back, they were still there."

There were about 10 photographs of a baby girl being molested by a man.

Hahn's stomach turned. He knew people who had been molested.

But what should he do with evidence that, after all, was stolen property? Hahn's criminal record meant that his next conviction could mean life in prison. He fantasized about confronting this man himself. The man's name was among the papers in the safe.
When investigators got the package on March 1 and saw what was in it, they moved quickly, fearing for the safety of the child in the photos.

Whoever had sent the package had written: "Property of Robert Aitken, Wedgewood Drive." Wasn't that the guy who had just reported a burglary?
Now, let's rewind a bit. How DID Hahn get the memory stick?
John "Robbie" Robertson Aitken...[t]he 22-year-old with no previous criminal record is charged with molesting his infant goddaughter -- his boss' child.
"There is honor among thieves," said Dana Overstreet, who is prosecuting Aitken. "In my case, Hahn is a hero."

Opening arguments are expected to begin early this week. Hahn is expected to be one of the prosecution's main witnesses against Aitken. And then he, too, will go on trial.
Aitken woke up with a start and turned on the light, according to court records. He heard noises, like whispers and a box being kicked. His Liberty gun safe was gone.

He called 9-1-1.

He told police there was a handgun and some personal papers in there.

Both the responding police officers and Aitken's friends noticed that he seemed extraordinarily anxious about the theft, court records said. His boss' wife recalled that after the theft, Aitken told her: "I feel like my life as I know it is over." When asked how she responded to that, the woman told Aitken: "Oh Robbie, you'll get over it."

Police say Hahn was probably the burglar that night or, if not, that he illegally got what was in that safe.
With the help of Overstreet and D.A. Investigator Carl Lewis, Detectives Dan Accardo and Mike Barbieri quickly came up with a plan. On March 3, they called Aitken. They had some follow-up questions -- could he come down? Aitken and the investigators talked for a while, casually. Then, Lewis said he had something else they needed to talk about.

He opened up a leather folder. Inside was a blown-up photograph of Aitken's face from the memory card. Aitken knew immediately what it meant.

"He just melted into the chair," said Barbieri. "It gave me goosebumps."

Aitken put his hands over his face, according to court documents, took a deep sigh, and started talking:

"It was just, I, I, I -- it's stupid, you know? It was one day, you know being stupid. And you know, did it, and you know, halfway through it I was so upset at myself I just stopped and said 'What am I doing?' ... And you know, stopped and spent the next week just throwing up, all upset about it, thinking, you know, how could I do this to somebody I love?"

Aitken was talking about his love for the Los Gatos family whose daughter he had allegedly molested. Years before, he started as an employee -- working at the computer store owned by the father. But soon, he was more family than employee. Aitken went with them to Tahoe, Hawaii and Italy. He baby-sat. They had made him the godfather of their beloved first girl. They were so close that "Robbie" sometimes slept with the child so she could go to sleep.

Police searched Aitken's apartment. There they found one of the little girl's dresses, stuffed in a bag inside a motorcycle helmet. A computer forensic search found thousands of pornographic images -- including more than 100 that were identified as illegal child pornography.

According to court documents, the child's mother went to Elmwood to ask Aitken two questions:

Was I there?

No, he said.

Did you sell the photographs?

No, he said.

Then she left.

The mother carefully watched her daughter for signs. Two weeks after her mother explained about her private parts, the child said that "Robbie" had touched her there.

"Robbie did a bad thing," she told her daughter, then 3. "And he'll never be back."
So, the burglar, in my view, should be granted some type of leniency. He did help catch a worse criminal.
Hahn was arrested on April 8, 2005, on a warrant for unrelated crimes. Barring a plea deal, he will soon face trial on 12 counts of first-degree burglary, possession of stolen property and grand theft.

But none of Hahn's current charges are for stealing the safe. Police didn't even know he was the person who tipped them off to Aitken.

Until they arrested him, and he said: "I gave you Robbie Aitken.
Yes, Hahn is a crime wave alone. But I ask this question, should one burglary be a life sentence? Especially when he helped catch a guy who faces a maximum of 30 years (not life) for raping a baby girl?

Mabye 3 strikes laws need the ability to adjust downward for certain circumstances. I'm conflicted on this because, as Thomas Jefferson wrote so many times, it is folly to try and fight human nature. It is instead best to minimize the damage of human nature. Human nature in this case was for Hahn to do nothing at all and not risk the 3rd strike for the safe and its contents. He instead chose to turn in the baby-raper, John "Robbie" Robertson Aitken. We do not want a situation where human nature (self-preservation) causes more damage (allowing baby-raping to continue). It is the same reason you cannot have the death penalty for rape alone. Human nature (self-preservation) would cause most rapists to eventually kill their victim since the penalty would be the same and the chances of getting caught diminish if the victim cannot accuse the rapist.

If Hahn knew that a plea deal would be possible he would be more likely to hand over the memory card. Hahn found a way around it...others might not have given the same thought.

Just food for thought. The grace is that at least one baby-raper is off the streets now.


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