February 26, 2013

"When does a fantasized crime become an actual crime?"

"A federal prosecutor, Randall W. Jackson, told jurors that [New York City police officer Gilberto Valle] had been plotting real crimes to kill actual victims, while Officer Valle’s lawyer, Julia L. Gatto, contended that he had merely been living out deviant fantasies in Internet chat rooms, with no intention of carrying them out."
One outside expert, Joseph V. DeMarco, an Internet lawyer and former head of the cybercrime unit in the United States attorney’s office in Manhattan, said in a recent interview that beyond its sensationalism, the Valle case highlighted the fact that there were “dark corners” of the Internet “where a whole range of illegal and immoral conduct takes place, and the general public has only a vague and fleeting knowledge that these places exist.”



He noted that the Internet, as a medium of expression and communication, also made it possible for people with interests as benign as stamp collecting or as grisly as cannibalism to find and validate one another in community forums.

“If you were someone mildly interested in cannibalism 30 years ago, it was really hard to find someone in real space to find common cause with,” Mr. DeMarco noted. “Whereas online, it’s much easier to find those people, and I think when you have these communities forming, validating each other, encouraging each other, it’s not far-fetched to think that some people in that community who otherwise might not be pushed beyond certain lines might be.”...

Ms. Gatto, Officer Valle’s lawyer, said in her opening statement that if the jurors had been scared by what the prosecution had described, “who could blame you?” The allegations were shocking and gruesome, she said, “the stuff that horror movies are made of. They share something else in common with horror movies,” she added. “It’s pure fiction. It’s pretend. It’s scary make-believe.”

Ms. Gatto suggested that the stakes for Officer Valle, who has been charged with conspiracy to commit kidnapping, a charge that carries a maximum sentence of life in prison, went far beyond his case. She said cases like his test “bedrock principles, the freedom to think, the freedom to say, the freedom to write even the darkest thoughts from our human imagination.”
IN THE COMMENTS: Nonapod said: "Real space? The term meatspace is often used as a silly antonym to the cyberspace, but this gives it a whole new meaning."

37 comments:

Scott M said...

I don't know where the legal lines start and stop, but, for instance, if someone were writing extensively and in minute detail how they were going to break into my house and kill my daughter...well, I think that deserves some looking into by law enforcement.

Meade said...

I could just eat you up!

Scott M said...

I could just eat you up!

Only if you're also bringing along some fava beans and a nice chianti.

Countersnark said...

...and a nice Chianti

Richard Dolan said...

Conspiracy requires proof of an agreement to commit a substantive office, and not much more than that (usually just some step in furtherance of the conspiracy, but that is rarely a problem for prosecutors). It makes no difference that, unbeknownst to the defendant, the person he thought he was conspiring with turns out to be a gov't agent, and that the conspiracy could never, as a practical matter, be carried out. It's the making of the agreement that is the essence of the crime.

An agreement, in turn, requires some manifestation that the conspirators reached a meeting of the minds, and that's where the 'fantasy' defense comes in. If it was all just play-acting, his own dungeons-and-dragons game, then there was no meeting of the minds about achieving the conspiracy's goals, and thus no conspiratorial agreement. Again, note that the defendant can be guilty of forming a conspiratorial agreement even if his putative co-conspirator was a gov't agent who was just playing along, not really agreeing to do anything.

Because the essence of the crime is the making of an agreement, it's not really a First Amend/free speech issue. The speech can be used to prove an agreement (that happens in many contract case, too, and in every one alleging an oral agreement) but the speech itself is not the crime (as it might be in a true threat or incitement case, for example). But the ambiguity inherent in all the key concepts here -- issues of intent and the like are what it will turn on -- certainly raise a possibility of prosecutorial overreach, as well as mistaken decisions by a jury.

Interesting case.

SJ said...

So, if someone writes detailed plans about attempting to blow up the U.S. Capitol Building, but doesn't take any steps to actualize those plans...

Are they guilty of conspiracy to commit a terrorist deed?

Or are they protected under rights of free expression?

Scott M said...
This comment has been removed by the author.
edutcher said...

The Lefties are big into perception and intention, so something like this could shut down Kos and DU if taken far enough.

Scott M said...

Now, what if Thomas Harris had included Hillary Clinton as the politician/mother and had his antagonist intone to a bepitted Chelsea, "It puts the lotion on it's skin or else it gets the hose again"?

I doubt seriously Buddy would fit in the basket, so, of course, the analogy fails at that point.

Nonapod said...

“If you were someone mildly interested in cannibalism 30 years ago, it was really hard to find someone in real space to find common cause with,”

Real space? The term meatspace is often used as a silly antonym to the cyberspace, but this gives it a whole new meaning.

Writ Small said...

“Whereas online, it’s much easier to find those people, and I think when you have these communities forming, validating each other, encouraging each other, it’s not far-fetched to think that some people in that community who otherwise might not be pushed beyond certain lines might be.”

Didn't the Times approvingly quote a psychiatrist who said impulsive suicides could be prevented by reducing access to guns? Seems like the Grey Lady owes us an editorial about common sense speech control.

Shanna said...

well, I think that deserves some looking into by law enforcement.

Especially if it is law enforcement! At the very least, this guy should lose his job (maybe he already has).

I think directing it at specific, non celebrity people is what elevates it beyond simple fantasy. If he were writing a book about a made up character it would be different. Still disturbing, but different.

Levi Starks said...

I think that if I were a juror, I would need to know that a specific date and time had been selected, and that the "tools" needed to get the job done were in his possession.

When the FBI does a sting on an unwitting homegrown terrorist they always complete this portion of the role play before closing the deal.

Levi Starks said...
This comment has been removed by the author.
wyo sis said...

When does a fantasized crime become a real crime?
When you are the victim of it.

Astro said...

I thought a fantasized crime becomes an actual crime when, you know, an actual crime takes place.
Does the justice system now prosecute thought crimes?

If so, can you tell me how long Eurasia has been at war with East Asia? -Wait. Tell me later. I'm due for my 15 minutes of hate.

phx said...

Ms. Gatto suggested that the stakes for Officer Valle, who has been charged with conspiracy to commit kidnapping, a charge that carries a maximum sentence of life in prison, went far beyond his case.

Don't they mean the steaks for Officer Valle?

edutcher said...

OT, but cool, given our history of the day yesterday - today is the 652nd birthday of Wenceslaus, King of Bohemia (1376-1419) & of Germany (1378-1400).

mccullough said...

Gothic literature has been around for hundreds of years.

If the expert the NY Times quotes were right, we should see an increase in serial killers and gruesome murders over the past 15 years. But we haven't.

That said, the accusation that he accessed a law enforcement database to get information about one of the alleged victims is a good piece of evidence against him.

DADvocate said...

That's some pretty sick shit.

It goes from fantasy to reality when action is taken to implement the plan/fantasy whether it's buying rope, a large spit, digging a cooking pit, or what have you.

This guy was definitely close to the line and seems to be the type we want stopped before hand. I don't blame his wife for being terrified.

EDH said...

The clincher for me was the song and dance routine the defendant scored and choreographed...

"We ate your boobs".

carrie said...

The thought police are coming.

Shanna said...

This guy was definitely close to the line and seems to be the type we want stopped before hand. I don't blame his wife for being terrified.

Absolutely. I wonder if this is the kind of person who we should be putting in a mental institution before he really does kill someone, or if it would never have progressed beyond fantasy.

jr565 said...

I don't know, having this guy be that into cannibalism is really disturbing and problematic.
Then again, I'm thinking back to my childhood and ore high school days. I was really into action and violence (in the context of comic books and horror movies) but also had a macabre sense of humor and perhaps a desire to shock.
So when I had an art assignment to draw various things all of them were twisted and violent. Like the assigw t was to draw a tree and I drew someone hanging from a tree.

My teachers probably thought I had some kind of developmental problems or grow up to be violent.
But I didn't. The total opposite in fact.

So, this guy is an adult, and engaging in a fantasy life. Is it a guarantee that he is actively trying to kill people to eat them. I don't know. But that doesn't mean he will act on them.
Is there any OTHER proof that he is trying to actually do any of this.

Darrell said...

Great! CBS found new writers for Criminal Minds.

Paul said...

There is no way to know if one who post is living out a 'deviant fantasy' or not.

But I tell you, words have consequences. You say things outloud, or on the net, and they may come back to haunt you.

So the idiot gets charged. Well I'd charge him to. Doing stupid can get you in the slammer.

Methadras said...

"When does a fantasized crime become an actual crime?"

Why is this even a legitimate question? The answer is when it is acted upon. I would even venture to say that people sitting around talking about doing something isn't even a crime either.

"Richard Dolan said...

Conspiracy requires proof of an agreement to commit a substantive office, and not much more than that (usually just some step in furtherance of the conspiracy, but that is rarely a problem for prosecutors). It makes no difference that, unbeknownst to the defendant, the person he thought he was conspiring with turns out to be a gov't agent, and that the conspiracy could never, as a practical matter, be carried out. It's the making of the agreement that is the essence of the crime. "

I find conspiracies to commit an incredulous charge. Talking about doing vs. doing are two seperate things. One is a crime, when committed, the other shouldn't be if planned and talked about and not committed. I believe it is a 1st amendment issue. The entire notion of a conspiracy is worthless if there is no active and overt carrying out of that conspiracy. Talk is talk. I know it's a long held belief that a conspiracy charge is an actual offense, but it should only become on if action is taken. Beyond that, it's just words.

Marie said...

Absolutely. I wonder if this is the kind of person who we should be putting in a mental institution before he really does kill someone, or if it would never have progressed beyond fantasy.

You want to protect us from people you imagine are going to do harm...someday? How kind.

...there were “dark corners” of the Internet “where a whole range of illegal and immoral conduct takes place, and the general public has only a vague and fleeting knowledge that these places exist.”

Dark corners where law enforcement hangs out. Is it any surprise that this guy is a cop?

Shanna said...

You want to protect us from people you imagine are going to do harm...someday?

Well, the wife is understandably a little more concerned about his imagination than you are.

Is it a crime to conspire to a commit a crime? Yes it is. Is it in this case? I agree it may depend on whether he had made any actions beyond fantasizing. But the fact that the guy was fantasizing in this specific and detailed way about murdering specific people says that he is potentially dangerous.

Maybe he's like a potential serial killer who will never progress beyond the fantasy and maybe he isn't. What is the best way for society to deal with that?

Methadras said...

Shanna said...

Is it a crime to conspire to a commit a crime? Yes it is.


Again, I would ask why. Conspiring and doing are two different things. So if I plan a heist to rob a bank and get other people to see it, agree with it or modify it, then it's a conspiracy? A conspiracy of what? Thinking about doing something, or planning something, or just talking about something? As opposed to actually putting that plan into action, which would then be a crime along with the fact that we conspired to do it? That I can understand, but just the idea of a conspiracy on its own merits does not warrant a crime.

So potential danger would carry a criminal action as well? It's one thing to be potentially dangerous. It's another to actually be dangerous. However, even in that vein, I can be actually dangerous without doing anything criminally dangerous. Have I committed a crime if I do nothing?

hombre said...

Was there a substantive act in furtherance of the conspiracy or is this a thought crime so favored by the left?

hombre said...
This comment has been removed by the author.
mccullough said...

Hombre,

Accessing a real person's information from a law enforcement database is an overt act in furtherance of the conspiracy. The defendant is free to argue that it's just heightened on-line role playing to use real people, but he better take the stand and explain it all to the jury. It's more than enough evidence to convict him.

Methadras said...

mccullough said...

Hombre,

Accessing a real person's information from a law enforcement database is an overt act in furtherance of the conspiracy. The defendant is free to argue that it's just heightened on-line role playing to use real people, but he better take the stand and explain it all to the jury. It's more than enough evidence to convict him.


Misapporpriated personal information during business hours on police computers would for me be a threshold kicker towards intent. It's pretty threadbare but I'd side on that case to slap the conspiracy charge in that way. Just conspiracy? Nope, but using police computer resources to look up potential victims? Then it counts.

30yearProf said...

This was posted "So, if someone writes detailed plans about attempting to blow up the U.S. Capitol Building, but doesn't take any steps to actualize those plans...

Are they guilty of conspiracy to commit a terrorist deed?"

Yes, if during a "reasonable" time thereafter you purchase a ticket to Washington National Airport.

Maybe even if all you do is purchase a Tour Guide to The US Capitol while at Barnes and Noble.

Conspiracy is a prennial prosecutor's favorite because you can punish "bad thoughts" accompanied by the TINIEST act (especially under the federal statute). It can easily be used to chill impassioned, private political speech.

But you do have to tell someone else about it.

For example, if you show the plans to your roommate saying "wouldn't this be cool" and he in the next week, without your request, buys a Tour Guide of DC, they have got a case for a jury.

30yearProf said...

This was posted "So, if someone writes detailed plans about attempting to blow up the U.S. Capitol Building, but doesn't take any steps to actualize those plans...

Are they guilty of conspiracy to commit a terrorist deed?"

Yes, if during a "reasonable" time thereafter you purchase a ticket to Washington National Airport.

Maybe even if all you do is purchase a Tour Guide to The US Capitol while at Barnes and Noble.

Conspiracy is a prennial prosecutor's favorite because you can punish "bad thoughts" accompanied by the TINIEST act (especially under the federal statute). It can easily be used to chill impassioned, private political speech.

But you do have to tell someone else about it.

For example, if you show the plans to your roommate saying "wouldn't this be cool" and he in the next week, without your request, buys a Tour Guide of DC, they have got a case for a jury.

Lawyer Mom said...

An pedophilia expert once told me that 75% of the participants in the man/child chat rooms are law enforcement, acting, presumably, as decoys. Throngs of people tell whoppers about themselves, on the internet. And throngs more don't believe the lies. Shocking, I know -- to jurors, anyway.

"Looking into" suspicious online behavior is one thing. Arrest and prosecution for conversation alone is quite another.

So here's a man -- and yes, a prosecutor -- who engaged in explicit internet conversation with an adult posing as an underage boy, but he never went to the decoy's house. As the police were busting down the man's door to arrest him the next day, the Catch a Predator cameras were poised to capture it all. He shot himself. NBC paid out $105M to his family.

http://latimesblogs.latimes.com/showtracker/2008/06/nbc-resolves-la.html