I have to admit that as an attorney I gain more respect for our system of justice when Judges actually step up to the plate and do the right thing. These Internet Luring cases are very difficult and the appeal of doing something that the general public might disagree with is even tougher to swallow. Having represented a number of individuals in Internet Luring cases I have my own opinion about the absurdity of many of these prosecutions (but not all of them). In this most recent case, out of Federal District Court in Nebraska, Chief Judge Bataillon held that an undercover agent’s submission, regarding online conversations between himself, posing as 14 year-old girl, and defendant, was inadmissible. The case stemmed from a grand jury indictment of the defendant for using a computer to knowingly attempt to persuade, induce, and entice a minor to engage in sexual activity in violation of 18 U.S.C. §2422(b).
The Judge discussed:
The evidence at issue involves certain “instant message” or “chat” conversations conducted via computer between Margritz, posing as fourteen-year-old girl with the screen name k8tee4fun, and the defendant, using the screen name gnesta18. … The parties agree that there are no original transcripts of the conversations, either because computers are missing or because instant-message conversations were not maintained or archived on the computers.The parties also agree that there are no longer original electronic computer printouts or copies on floppy discs or hard drives or disc drives capturing the computer conversations between Margritz and the defendant during that period of time. None of the conversations were saved. … Consequently, the government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document.
None of the conversations were saved?
The government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document?
Are they serious??? That’s the best evidence the government had to try and convict this guy? In the first day of evidence class your professor teaches you about “the best evidence rule” and how important it is to have EVIDENCE to win a case. How does a cop miss this stuff? The missing data was crucial to the dismissal of the case and caused the Court to seriously doubt the trustworthiness of the evidence. The court stated:
[T]here are numerous examples of missing data, timing sequences that do not make sense, and editorial information.The court finds that this document does not accurately represent the entire conversations that took place between the defendant and Margritz. … Defendant alleges that such information was excluded from the cut-and-paste document or from a lost audiotape of a phone conversation between him and Margritz. The court agrees and finds the missing data creates doubt as to the trustworthiness of the document. See, e.g., Webster, 84 F.3d at 1064. (government must show trustworthiness of tape recording). Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.
This case really isn’t about Internet Luring per se. And it really isn’t about entertainment law. But since much of my practice includes internet law and criminal defense, I couldn’t let this one slide. This case really is an opinion about how important it is to have solid quality evidence to convict people in this society. Half-assed evidence collected by law enforcement officials deserves to be thrown out and the prosecutor deserves to be angry when mistakes like this are made. As I mentioned, these Internet Luring cases are difficult to try and almost impossible to win from a criminal defense perspective. Almost always, the point of attack is toward the technology, and then toward the First Amendment and intent issues. But what this legal opinion gives us is another avenue to critique and to hold our government accountable in the prosecutions it brings. The government better insist that its officers and agents have done the extra work in making sure that all their ducks are in a row before prosecuting. Because, if they have me defending on the other side, I know my ducks will be…