November 26, 2012

Entrapment or crime prevention?

Rachel Brown

— Daniel Metcalf said he was looking for a relationship with an adult, possibly sexual, when he entered an online website nearly two years ago and began talking with a man who turned out to be an undercover police officer.

Little did Metcalf know the two children the man told him about were fictitious and that the officer invented a story about wanting the two to meet with two elementary school age children in Ringgold in an attempt to lure would-be child predators into a sting operation by the Northwest Georgia Internet Crimes Against Children Task Force. The FBI-led organization includes several local law enforcement agencies, including the Dalton Police Department.

Metcalf agreed to meet the man at a Subway off Battlefield Parkway in Catoosa County. When he arrived, he was arrested and charged with attempted aggravated sodomy, attempted aggravated child molestation and computer pornography. Metcalf said he’s innocent and there’s far more to the story.

At the time a college student living in Cumming, Metcalf said he began talking with the man a week or so before Christmas in 2010. The man eventually suggested they engage in sexual acts with the kids, which the man claimed were his girlfriend’s.

“I was so confused about how to proceed,” said Metcalf. “I didn’t know if it was fantasy, if he was playing games, or if he was serious.”

Metcalf said he did agree to meet the man — but not because he wanted to have sex with the kids. Instead, he said, he wanted to find out if the children he spoke of were actually real or if the man was engaging in “role-playing,” a type of sexual game in which people attempt to verbally live out their fantasies without actually engaging in them. Metcalf said he didn’t know what he would have done had the kids turned out to be real, but one thing is certain — he had no intention of having sexual relations with anyone underage.

Several calls to Catoosa County Sheriff Phil Summers for comment about the case were not returned, and FBI spokesman Stephen Emmett wouldn’t discuss the case or answer general questions about how the task force operates. Dalton Police Department spokesman Bruce Frazier apologized and said the department’s agreement with the FBI specifies “that any commentary on the task force has to come from the FBI.” An assistant district attorney in Catoosa County assigned to prosecute Metcalf left a message in response to a call seeking comment but didn’t respond to follow-up calls.

Metcalf’s attorney, Chris Townley, initially said his client would likely face trial in March, but he couldn’t discuss details of the case without his client’s approval. Follow-up calls after Metcalf said he gave approval weren’t returned.

A jury in Catoosa County Superior Court could decide, likely sometime in the coming months, whether its members buy Metcalf’s story. If previous cases similar to his that have been brought by the task force are any indication, his odds aren’t good.

Judging morality?

Metcalf’s story isn’t the type to typically cause juries of men and women who lead clean lives to immediately offer sympathy and understanding. Instead, it’s fraught with behavior that, even if not criminal, is at best often considered controversial and taboo.

So far, no person arrested in a sting by the local task force has been found not guilty, but there are plenty of legal analysts who challenge the practice of arresting people for allegedly attempting a crime on non-existent “victims.” Among them are Atlanta attorney McNeill Stokes, who said he has represented numerous clients charged in task force stings and filed several requests before the U.S. Supreme Court and Georgia Supreme Court seeking the justices to rule on the constitutionality of the techniques used to catch alleged perpetrators.

The scenarios undercover officers make up often involve the officer initially posing as an adult on an adults-only site where the officer only later reveals to the person that he or she is actually underage but wants to meet up anyhow, Stokes said. Law enforcement officials say any law-abiding person would walk away from the relationship at that point. Stokes says authorities shouldn’t ask someone to break the law in the first place.

“They’re just entrapping citizens,” he said. “There are no victims. It’s all fiction, and they’re all created crimes, alleged crimes.”

Stokes said he’s represented several clients who were considered upstanding citizens before their arrests — a Navy SEAL, an Airborne Ranger, businessmen. As of about a year ago, some 120 people had been charged in Catoosa County alone for crimes brought by the task force, he said. Two of his clients, he said, tried to commit suicide after they were charged, and one succeeded.

Juries tend to go along with prosecutors at least partly because of the nature of the conversations that take place online, he added. In many cases, people reveal in unabashed detail their sexual fantasies and desires, he said, and juries in some cases find themselves judging someone’s morality rather than whether they committed the crimes of which they’re accused. Role-playing is especially common among gay men looking online for other gay men, he said.

Crime prevention or over the line?

Emmett, the FBI spokesman, wouldn’t discuss how many task forces like this one exist except to confirm there are others in various locations across the nation. So-called “traveler cases” in which an individual allegedly travels from out of his local area to have sex with a minor have been prosecuted in Whitfield and Murray counties for about the last four years, Conasauga Judicial Circuit District Attorney Bert Poston said.

Emmett, who said he was the only one with knowledge of the local task force who is authorized to speak to the media, said he didn’t have statistics on how many offenders the task force has arrested. He provided a general statement on the task’s force mission.

“Its primary mission is to identify and present for prosecution those individuals that are preying on minor children,” he said. “And they’re often brought to the attention of law enforcement via activities or comments or efforts that originate online and that culminate with their travel in furtherance of those efforts, and the evidence is there for prosecutors to review. These are not arbitrary allegations. These are arrests that culminate after a series of chats or comments or conversations have occurred online already.”

While many in the legal system are divided on whether the investigative techniques the task force uses are appropriate, others point out the gravity of the charges and say anything to prevent child abuse is good.

Mary Smith of the Family Support Council in Dalton, a social services organization that, among other things, works with children who have been abused, has an answer for the “victimless crime” argument.

“It’s only victimless because they were caught that time,” she said. “We don’t know how many times they were not caught.”

Smith said she learned from a recent training that one in five children is sexually solicited over the Internet. That statistic by itself should be frightening enough to take prevention seriously, she said.

“I’m not as worried about adults who are breaking the law as I am the children whose lives they break. I’m sure that some people are worried about entrapment and I’m sure that there are arguments for that. ... I wasn’t bothered at all by what was happening because of the damage that results to kids.”

Smith has a warning for parents and caregivers: Monitor your children’s Internet use and require them to use computers in an open area. Warn them not to give out personal information like email addresses, home addresses or phone numbers.

Defenses in court

Poston said the task force to date has always done a good job of “building their cases such that we have obtained guilty verdicts in every case that has gone to trial thus far.”

“There are two things we have to prove,” Poston said of winning a case in court, “that the defendant intended to commit the underlying crime (child molestation, etc.), and that he took a substantial step towards completion of that crime.”

Entrapment is a common defense, as is the idea the defendant lacked criminal intent or abandoned the crime.

“Entrapment occurs when the idea for the crime originates with the law enforcement, which then uses undue influence to cause the offender to commit the crime,” Poston said. “In the cases we’ve handled, the members of the task force have always done a good job to show that the idea originated with the offender and that they provided numerous opportunities for him to change his mind and not go through with the act. The communications leading up to the traveling usually establish intent pretty clearly, so that defense has not worked either.”

Whether any of those defenses will work for Metcalf remains to be seen, of course. Metcalf admits he eventually consented — in writing — to meet the person posing as the undercover officer with the kids. Yet he contends he had no plans to have sex with either child.

“We’ve had one trial based on the abandonment defense,” Poston said. “The law provides that once an attempt has been made to commit a crime, but before the crime is completed, a defendant may abandon the attempt. For this to be a legal defense, however, the abandonment must be based on a legitimate change of heart, not because it appears that he’s about to be caught. The case we tried involved the defendant fleeing from the motel parking lot after he spotted law enforcement and realized that he was walking into a sting operation. That’s not a defense to the crime.”

‘Why tempt someone ... ?’

Mike McCarthy, the chief public defender for the circuit that includes Whitfield and Murray counties, didn’t comment on Metcalf’s case specifically, but he questioned the morality of certain law enforcement practices. He likened the undercover agent asking or suggesting an adult have sex with a juvenile to the agent placing a $1,000 bill somewhere and watching just to see if he could arrest someone for taking it.

“Why tempt someone who may not otherwise be a thief?” he said. “I have a problem with manufacturing crime. There are enough real crimes that take place that law enforcement and prosecutors, in my opinion, ought to be spending their time solving real crimes rather than making up crimes.”

McCarthy said there are some cases in which a naive college student or someone who is low functioning is charged. He doesn’t excuse those people, but he also thinks the justice system should view them differently than someone who has a known propensity toward pedophilia.

“They shouldn’t have responded, they shouldn’t have continued it, but I think people should be looked at on an individual basis,” McCarthy said. “It doesn’t mean that they’re pedophiles, and I think maybe this task force — the program — might be better served if they specifically targeted either chat rooms or websites that are known to be places where pedophiles traffic or communicate back and forth, not on adult websites where the police are putting the idea of the crime into the person’s head.”