22 people were arrested in an undercover sex sting near Orlando, Florida this week. The operation was conducted by the Sumter County Sheriff’s Office and mimicked some of the tricks used to arrest child molesters on television. According to news reports, detectives posed as underage boys and girls and made arrangements with local adults to meet up for sex.
The supposed “meetings” were arranged to take place at a home in the Orlando area.
As one can imagine, this sting mimicked Dateline’s “To Catch a Predator,” but instead of chatting with Chris Hansen in some random kitchen, those arrested were summarily introduced to the floor and handcuffs upon entering the home.
Candidly, cases like these are very hard to defend, even for an experienced criminal lawyer.
However, that does not mean there aren’t any questions that come to mind, such as how the police came to be involved with these particular defendants in the first place. According to news reports, the Sumter County Sheriff’s Office worked closely with the State Attorney to avoid any legal impediments to successful prosecution, such as allegations of entrapment.
To understand whether entrapment is a defense in a case like this, it is first necessary to explain what entrapment is. Described loosely, Florida Statute 777.201 states that entrapment occurs when the police induce or encourage a person to commit a crime using methods of persuasion that cause that person to commit a crime that they would not otherwise commit.
For example, if a person is working for law enforcement as a confidential informant in a trafficking in cocaine case and that person is sent to buy cocaine from a drug dealer as part of a sting operation, it would be entrapment for the police to then arrest the confidential informant for buying the cocaine.
Generally speaking, a good entrapment defense is established when the police initiate the chain of events that induce the criminal conduct in question.
This is distinguished from cases where the police merely act in an undercover capacity in response to criminal conduct already initiated by the defendant. For example, it would not be entrapment for police to arrest a drug dealer who walks up to an undercover car and offers to sell drugs. Just because police were acting in an undercover capacity or because they actually purchased the drugs, does not mean the defendant was necessarily entrapped.
Put simply, a criminal lawyer working on a case that involves entrapment must ask a simple question: did the crime in question occur only because the police induced the defendant to commit the crime? If so, there MAY be an entrapment defense. If not so, there may not be an entrapment defense.
In my past experience as a criminal lawyer handling enticement of minor cases and other sexual offenses that involve undercover police posing as children, it is the defendants who initiate contact.
For example, it is not uncommon for police to enter chat rooms and assume the identity of young children. When this occurs, they usually sit and wait for someone to initiate contact with them. Once contact is initiated by the defendant, the undercover detective will identify him/herself as a minor boy or girl. When done correctly, police will follow a defendant’s lead when he directs a conversation toward sex or other lewd matters.
For example, I have read transcripts in past cases where defendants initiate sex talk with a question about virginity. As the chats progress so does the lewdness. From there, it is not uncommon for defendants to ask questions or discuss masturbation or give other sex tips. Strangely, I have also seen cases where such defendants will then lecture the “boy” or “girl” on safe sex practices. I always wondered if they did that out of some sense of guilt.
Ultimately, the defendant makes a “date” to meet the “boy” or “girl” for sex. When the defendant shows up, he/she is then taken into custody and charged with enticement of a minor using a computer or electronic device.
While I have oversimplified this process, cases like these are very common and occur with greater frequency than the public is lead to believe. For law enforcement, these cases are like shooting fish in a barrel when handled correctly.
Truth be told, most defendants charged with these crimes cannot win at trial, unless they get lucky and there is a conflict in the evidence, a lack of evidence, police misconduct, or a violation of their rights.
When a criminal lawyer handles an enticement of minors case, he/she best serves the client by conducting a realistic and honest evaluation of the evidence. Filling the client with false hope about winning at trial is unprofessional. These cases are tough and should be handled accordingly.
Not only do juries feel good about convicting sex offenders, and for good reason, but judges love sending them to prison for extremely long periods of time after they have lost at trial.
In my opinion, no defendant should ever take a case to trial when the prosecutor has the ability to admit accurate chat logs that include extremely lewd talk between the accused and a person he/she believed to be a minor.
Lets be real, what normal thinking juror would not convict?
However, on the same token, prosecutors will need to prove identification of the defendant as the person on the other side of the chat. If they are unable to do this, then the defendant may have a chance at trial.
This element of the offense is often times proven using strong circumstantial evidence. For instance, undercover police will almost always get the defendant to trade pictures during their chats. When the defendant later shows up for his/her “date,” it is no surprise to see a person who matches or very closely resembles the photograph sent from the defendant’s email account to the undercover officer’s email account during the chat.
And yes, they do admit the emails as evidence during trial.
What is a defendant in a case like this going to say? That he/she randomly showed up at this particular house for no reason?
That would be a moronic defense.
It would make even less sense since many defendants waive their right to remain silent and given voluntary statements to police without having an attorney present. In other cases, police do a search of the defendant’s computer and find additional emails, child pornography, or other evidence. Unless the police conducted an illegal search, this evidence will be used to further prove the case and even support additional charges.
On a personal note, I believe criminal lawyers do their clients a tremendous disservice when they are not realistic about the chances of winning at trial. In a sense, lawyers are like doctors… they are paid for the bad news as much as they are the good news.
However, that does not mean a criminal lawyer cannot help a person accused of a crime like enticement of a minor using a computer. As a criminal lawyer, I have yet to see the case where I couldn’t help a person improve their situation at all.
While it is impossible for every case to be won, no matter how good the criminal lawyer is, it is usually possible to improve things.
In cases like these, those accused may want to explore a defense premised on mitigation or a motion for downward departure. In a motion for downward departure, the defendant essentially asks the judge to depart from the minimum required sentence according to the sentencing guidelines.
This would include getting a psycho-sexual evaluation completed to determine if the defendant has a treatable mental illness. Mitigation would also include pleading guilty to the charges at the earliest possible time.
That is why an honest and straightforward evaluation of the case must be completed without delay.
However, filing a motion for downward departure may not be a good strategy for those before a conservative judge or a judges looking to make a name for him/herself during an election year. Remember, even though their job is to act fair and uphold the law, circuit court judges are elected officials and are human beings prone to the same emotional pulls as anyone else.
Being tough on child molesters is an easy kill. Who will complain and what will they say?
However, if an acceptable plea bargain with prosecutors does not materialize and winning at trial is not realistic, pleading open to the judge and filing a motion for downward departure may be the only option.
In cases like these, the legal system is presented with a very serious and very important practical problem. Namely, what do you do with sexual offenders who are prone to re-offending and who will be released into the community once their prison sentence is completed?
Remember, as much as many of us would like to see sex offenders go away for their entire lives, this is not always a legal possibility.
Based on my experience as a criminal lawyer, both as a prosecutor and as a criminal defense attorney, I personally think split sentences that include some prison and some form of real treatment are the best option for non-violent, first time offenders who committed a sex offense that does not include direct victimization.
This way, there is a chance that the defendant will not re-offend. Taking such measures are important because they serve to protect other children from being victimized in the future, which in my opinion, is even more important that merely punishing such offenders.
In other words, if the offender is going to walk out streets again at some point in the future, we are better off forcing him/her into treatment instead of only forcing him/her into prison.
Both options should be exercised, not just one or the other.
Ultimately, a motion for downward departure is up to the discretion of the trial judge. Caution should be had and extensive case preparation must be done by the criminal lawyer if he/she is to present an effective argument on behalf of the client.
Finally, before any ultimate conclusions can be made about whether any particular defendant should or should not go to trial, accept a plea bargain, or file a motion for downward departure, a thorough case analysis must be completed and all relevant evidence must be analyzed.