December 3, 2015
The "cannibal cop" wins in the Second Circuit Court of Appeals.
"This is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to ensure that 'a person’s inclinations and fantasies are his own and beyond the reach of the government.'... We are loathe [sic] to give the government the power to punish us for our thoughts and not our actions.... That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime."
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21 comments:
I would agree if he hadn't accessed her personal information. Since he did that, the evidence was sufficient to convict and this is just judges' disregarding the jury's judgment.
Very interesting. Here in Washington State we have (as I believe I've mentioned here before) Cyber Stalking laws.
RCW 9.61.260
Cyberstalking.
(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:
(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;
(b) Anonymously or repeatedly whether or not conversation occurs; or
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.
Seems like he would be in violation of this under Washington State law. Especially if any of the women felt threatened.
Most of the cases I see in Washington are people who actually did something. Put naked pictures or video of someone online. But, according to the above law, you don't actually have to do it. You just have to threaten to do it. So, "I'm going to post nude photos of you!" Becomes a crime on par with actually posting nude photos of someone.
"We are loathe ..."
Pet peeve.
One man's meat is another man's poison.
It's outrageous that a judge even had to say this. Heads should roll in the prosecutor's office. But they won't.
Tim,
Read the whole opinion, including the dissent. The facts are more than sufficient to establish conspiracy. The jury rejected his fantasy defense. Too bad for him. This case will be in the first sentence of every lawyer defending a radical Islamist arrested for conspiring to commit an act of terrorism online. "Sure I scouted the location after me and Muhammed agree I should shoot up the mall, but it was all just part of our morbid online fantasy."
He told it to the jury, they rejected it. That's our court system. We don't need unelected judges rejecting jury's determination support Ed by facts.
It depends on how "person" is defined. The deconstruction of humanity in a society that practices abortion rites enables cannibals to run amuck under the color of law. Fantasy infiltrates reality in The Penumbra [Zone].
Kind of scary that this guy was a cop, nes pas?
""We are loathe ..." Pet peeve."
Good catch. I added a "sic."
""We are loathe ..." Pet peeve."
Good catch. I added a "sic."
Webster's uses that as an alternate spelling for "loath", both of which (it says) are synonymous with "reluctant" or "disinclined." It's a bit hackneyed, but not much of a catch. And what's there to 'sic'?
Mccullough, thanks for the details. As a general rule, I will read the opinion, including the dissents, if I'm in a situation where my thoughts and words carry some weight. When I'm blowing a few minutes on the web between projects at work, I am unlikely to go further than the excerpt. I make no apologies for that.
That said, judges second guessing juries is a vital part of justice. It's hard to see where this quote fits in a case where the person took concrete action in furtherance of the planned crime as you suggest in your remark about casing the mall.
As for the substance of the case, the trial judge tossed the jury's verdict on the conspiracy to kidnap charge under Rule 29, and the circuit agreed. The conspiracy charge required proof of an agreement between at least two people, as well as specific intent. Sufficient evidence to prove both beyond a reasonable doubt was lacking.
The conspiracy was supposedly between Valle (in Queens) and either a guy in England or someone in Pakistan. Whatever Valle intended, there was nothing to show that the other two creeps had any intent to form an agreement to kidnap (as opposed to a desire to fantasize about it on the internet). And the internet chats from which the whole case was constructed were fantastic, in the literal sense -- supposedly plots to kidnap three women on the same day in widely separated places, all following the same pattern as chats that the prosecution conceded were purely fantasy. The inability of the prosecution to offer any reasonable way to distinguish the chats that it said were pure fantasy from those that supposedly were real (or real enough) to amount to a crime was what led the Circuit to affirm the dismissal. Without such a distinction that made any sense, this was a case held together by spit and bubble gum.
The Circuit reversed the conviction under the Computer Fraud and Abuse Act under the rule of lenity, noting that two circuits have adopted the reading urged by Valle while four earlier cases went the other way. Eugene Volokh and a number of other amici submitted briefs on that point.
The Circuit noted that there was some evidence to support the charge, just not enough to prove anything beyond a reasonable doubt. The Court was also concerned about the prosecution's tactics at trial -- emphasizing the Valle was a cop, from whom we "expect" better, etc. The prosecution floated a very unsubtle invitation for the jury to convict based on how creepy Valle was, whether or not there was any real evidence establishing the required elements beyond a reasonable doubt.
It's also interesting that the same judge (Barrington Parker) who wrote this decision also wrote the one rejecting the SDNY's overly broad theories of insider trading in US v. Newman and Chiasson, issued just under a year ago.
Send an email to the Clerk of the Circuit to fix that loathsome error.
Two comments re: the Yahoo News story about this:
-----------------------------
DIREINDEED
He'll get his badge and job back with back pay and then will sue for wrongful charges and imprisonment and the state of New York will pay out millions. Windfall for him.
Ps
No, the city will pay him millions. Different bank account completely.
------------------------------
(Enough bread to win back his ex-wife? After all, they have a daughter.)
IMO at least some members of the original jury would probably have formed sufficient reasonable doubt about Giberto Valle's guilt to vote against convicting him...if his attorneys had allowed him to take the stand.
His interviews reveal he's quite a personable guy (with issues Woody Allan would have considered respectable ...at least for a New Yorker) but the movie has already been made. (Thought Crimes: The Case of the Cannibal Cop, available on Amazon.)
But no, his Federal Public Defenders (Robert M. Baum and Julia L. Gatto) had the hubris to believe Gilberto didn't have to take the stand. Baum's NYT quote: '“Our advice was that he didn’t need to testify. It’s about a lack of evidence, and Gil had nothing to add.” because the Government hadn't proven it's case.'
Why wouldn't they have considered that the jury would likely be very pissed that they spent all this time on the case without hearing Gilberto's denial for themselves and see how he held up under cross-examination?
The jury's predictable Seinfeldian rough justice verdict: "No soup for you!"
"The "cannibal cop" wins in the Second Circuit Court of Appeals."
Yay! Legalities aside, how can you not root for a guy known as "cannibal cop"?
I got something corrected in the Nebraska Reports.
My finest hour.
In proofreading, that is.
LASLO, YOU MAGNIFICENT BASTARD!!!
Please forgive my ignorance of the legal issues, but: isn't the fact that he illegally accessed the personal information of women sufficient to show that he was planning to actually do something? That he wasn't just dreaming about it, but actually was initiating steps to carry out his fantasies? That's the sticking point for me. It seems like he was trying to psych himself into fulfilling his fantasies by progressively getting closer and closer to them in stepwise fashion. That's why it seems to me like conspiracy (or at least planning) to commit a crime.
"Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime."
Does this mean that there can never be a "hate crime" because the hating part is not a crime?
Both the trial judge and the CA recognized that the FBI agents filtered the electronic data into "fantasy" and "real" categories, referring to (imaginary and alleged genuine) crimes planned by the defendant. But according to the court(s), the agents had no training, and thus, no basis for making those calls. The judges then went on to describe and categorize the emails and trips themselves, apparently unaware of the irony. So, said the judges (minus one of the 3 appellate judges), since the agents really could not differentiate between real and fantasy, (as we have just demonstrated their errors) then neither could the jury be expected to cull out the genuine conspiracy dates and times, and thus, the jury conviction is erroneously based on both fantasy and reality. Reversed by superior intellect!
Count 2, unauthorized computer access is forbidden. Cops uses Federal system to query data on potential female kidnap victim, admits it is improper use, but claims it's not "unauthorized" because he could run the same check on a criminal for a legitimate police purpose. You know, what would be an authorized purpose...reversed, based mainly on 9 CA case law, the most reversed CA and a 4CA case. Four other CA's support the government's position. (1 CA, 5CA, 7CA, 11CA) which include the 2 least reversed CA's.
@ Jin S -
To (maybe over)simplify, to commit a criminal conspiracy, you have to talk ('communicate' is better) to at least one other person about committing a criminal act, do one overt thing in furtherance of that criminal act (although the overt act does not have to be a crime itself, just something to further the commission of a crime) and not to withdraw from the conspiracy before being arrested or indicted.
The prosecution alleged the defendant emailed about kidnapping women, and made a trip to another state (Maryland) to meet one woman and scout the location for the ultimate kidnapping. At a minimum, if believed, these acts should have been enough according to the jury and according to the dissenting appellate judge. There certainly were other things, including, as you pointed out, the computer access which was (or wasn't) a crime but certainly was in furtherance of the conspiracy, because it was to gain information about a potential kidnap victim. Maybe. Without the trial transcript, maybe they didn't connect the dots.
It ultimately failed because the trail judge and the appellate court found that the government didn't prove the defendant wasn't just doing this as a fantasy game, and never really meant to go through with any of it.
I'm not sure I'd trust any of the females of my family alone with this guy and a saucepan on the strength of the courts' rulings.
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