There were two prosecutors during the trial – Patrick McNelis from the DA’s office and John Saba assisting him from the Attorney General’s office. One person during jury selection indicated that he was an acquaintance of John Saba. He too should have been struck for cause, but my attorney never objected to it and therefore, he too ended up on the jury.
Another person, Mr. Torsiero, stated that if I am found guilty he would not consider probation but would want me in prison. The law with regards to jury selection requires that all members of the jury must be willing to consider the full range of punishment (which, in my case included probation); otherwise they could not be on the jury. Several times Mr. Torsiero was asked by the judge and the prosecutors if he would consider probation at all and he continued to say no. Then, when pressured again by the prosecutor and reminded that he can’t be on the jury unless he was willing to consider the full range of punishment, he reluctantly agreed, stating that he would consider probation only if it were a “matter of national security.” Everyone knew that my case had nothing to do with “national security” and that this person made that unreasonable condition only to qualify as a juror. The law requires people to consider the full range of punishments without any pre-stated conditions. This person should have been struck for cause, but again my defense attorney did not object and the person ended up on the jury.
At that point I was not well versed in laws and trusted the judgment of my defense attorney. Later, when I did my own investigation and also when my appellate attorney pointed out, I realized that my defense attorney made serious errors during the jury selection process. In a personal letter to me, my appellate attorney told me that in her opinion several of the people who ended up on the jury should never have been on the jury. She pointed out that some of the people who should have been struck for cause were not struck for cause and instead, my defense attorney wasted peremptory strikes on them; in other cases he didn’t strike them at all. However, since my defense never objected to the final jury, my appellate attorney was unable to bring that up during the appeal process.
Coming back to my trial, the 12 members – several of whom should never have been there – of the jury were finally selected. Right at the beginning my constitutional rights granted by the 6th Amendment of the US Constitution were violated. It says:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” [http://www.archives.gov/national-archives-experience/charter s/bill_of_rights_transcript.html]
That same afternoon, the trial began. The state presented its main witness, Captain Torsiello, who had pretended to be “Amy” with me on the chats. The prosecutor and the witness read the entire text of the three chats in front of the jury, with the prosecutor representing maninaustin2003 (me) and Capt. Torsiello representing “Amy”. Right away the evidence was being distorted. The chats were presented before the jury in verbal form – with full verbal expressions for dramatic effects – as if the conversation between “Amy” and I took place either in person or on the telephone, with Torsiello talking in an innocent tone of a 13 year old while the prosecutor speaking like an adult who was looking for a prey. This completely changed the very nature and character of the state’s only relevant piece of evidence. The actual chats were not verbal, but written without any verbal clues or expression. I had no other clue to interpret the text in front of me except my past experience on the Internet and the clues given by “Amy’s” profile, which stated her age to be 18.
The very presentation of the key evidence in a false manner of verbal conversation created bias against me. I was not aware enough of the legal issues then and relied completely on my defense attorney, who never objected to this prejudicial and false misrepresentation of the key piece of evidence against me. Again, since he never objected, my appellate attorney later could not bring up this issue in my appeal.
When it was the turn of the defense to cross-examine Capt. Torsiello, he was asked if he knew whether people lied about themselves on these Internet chats, he acknowledged that they did [R.R. IV, p.28]. When he was asked if during the chats he could tell whether I believed I was talking to a 13 year old or an 18 year old, and he replied that he couldn’t tell [R.R. IV p.46].
Let us pause here and examine these two points carefully, for they expose the flaws in the entire case against me. The statute under which I was arrested and was being prosecuted states that the person accused of “criminal solicitation of a minor” must believe that he was talking to a minor regardless of whether the person he is talking to is a minor or not. First of all, the language of the statute is nothing but a classical case of semantic gymnastics to create a law that somehow tries to avoid the obvious logical flaw that if a person does not solicit an actual minor then regardless of what he believed, he did not solicit a minor. That flaw is obvious and straightforward. The flaw can be shown through many simple examples. Here are a couple of comical ones that illustrate the logical fallacy.
- Suppose a person hates the comic character of Charlie Brown and states that he wants to kill Charlie Brown. Can that person be charged with planning or threatening a murder regardless of whether he believed Charlie Brown was a real person or a cartoon character? Whether he believed that Charlie Brown was a real person is irrelevant because Charlie Brown is in reality not a real person. Similarly, regardless of whether a person believes that the person he is soliciting is a minor or not, he is actually not soliciting a minor if the person he is soliciting is in reality not a minor. The personal belief of the accused becomes irrelevant in the face of facts and reality.
- Suppose a man believes that he is actually a woman and is pregnant. He sues his employer for sexual discrimination when he is denied maternal leave. Would his law suit hold? Of course, not. The reason is simple. Regardless of whether the man believes he is a women and/or is pregnant, the reality and the fact is that he is actually neither a woman nor pregnant. He cannot stand in front of the judge and argue that since he believes he is a pregnant woman, he must be treated as such. The judge will throw him out of the court in the face of the obvious facts. Further, he will most likely be classified as insane. Similarly, whether a person believes he is soliciting a minor or not, if the person he is soliciting is not a minor, his belief is absolutely irrelevant. The people who have legislated and accepted the statute are perhaps suffering from the same mental disorder that the man in this example who believes himself to be a pregnant woman.
Hopefully, these two examples illustrate the basic logical fallacy inherent in the statute. It is for this reason that at least a couple of judges have thrown such “solicitation of minor” cases out of court because of the fact that no minor was actually involved. So, to get around this, several states in the U.S. have resorted to semantic gymnastics to try and hide the fallacy by stating that if the person believed he was soliciting a minor, then he will be charged as such regardless of whether the person solicited was a minor or not.
Besides this obvious logical contradiction, the statute also suffers from another flaw. How can the state prove beyond a reasonable doubt what another person actually believed? How can you objectively prove anyone’s beliefs and that too without a reasonable doubt? That is a logical impossibility. Remember, “Justice” is “based on facts and objective real existence of actual things”. One cannot possibly prove someone’s beliefs objectively.
These flaws are obvious to anyone who has the very basic knowledge of logic 101. But in their witch-hunt enthusiasm, many legislators as well as judges in the U.S. have over looked these two obvious logical contradictions in the statute, and continue to prosecute and convict witches based on logical fallacies.
Coming back to my trial, the star witness of the state, Capt. Torsiello, who was potentially the only person in any position to judge whether I believed “Amy” to be a minor, stated clearly in his testimony that he couldn’t tell whether I believed “Amy” to be a minor or not. The law requires the state to prove all elements of the indictment without a reasonable doubt. Since my indictment stated that I must have believed “Amy” to be 13, the burden was on the state to prove that without any reasonable doubt. Now, the only person who was in any situation to make any judgments regarding my beliefs about “Amy’s” age, was expressing clear doubt regarding my belief. That should have been the end of the case right then and there.
Not only that, but the state’s star witness also confirmed my defense that people on the Internet chats often lie about their age, and therefore, I had no reason to believe “Amy” when “she” told me that “she” was 13 – especially in the light of the fact that “she” stated her age as 18 on “her” yahoo profile and that in my experience on the Internet chats, I had found people to lie about their age (exactly as Capt. Torsiello confirmed).
The trial should have ended here had the principle of innocent until proven guilty beyond a reasonable doubt had been followed and had the burden of proving guilt beyond a reasonable doubt been put – as it should have been – on the state. However, in reality, and true to the traditions of witch hunts, the burden of proving my innocence was put on me, while the jury and the judge had already presumed me guilty until proven innocent in their minds.
After Capt. Torsiello’s testimony, the state brought irrelevant witnesses to the stand. One police officer described how state agencies in collaboration with a federal agency as well as local police tracked my movements from my office to the meeting place. A second witness described how he was a computer expert and had traced the chats to my computer. Neither of these testimonies was relevant in proving the state’s allegations. I never denied that I chatted with “Amy” or that I went to the meeting place to meet “her”. However, there is a reason why these extra witnesses were brought out: to give the impression to the jury that there was ample evidence and witnesses against me. Whether the “evidence” or “witnesses” were relevant to proving the allegations was of no concern. Those familiar with the witch-hunt trials of New England in the 17th century would notice that this is a fairly common tactics in witch-hunts.
Once the state rested its case, from the defense side I was the main witness. I went to the witness stand and explained the whole background and the context in which my chats with “Amy” took place. I explained that I believed “Amy” was an adult playing roles as is often the case on such Internet chats. I told the jury about my past experiences on chats with “Lisa” and various other adult women who pretended to be underage on Yahoo chats. I showed them the pictures of the screenshots with the shortcut method of looking at a person’s profile as well as the full-blown screen shot of “Amy’s” detailed profile page. On both shots, it clearly showed “her” Age as 18.
During cross examination, the prosecutor asked me to read parts of the chat out loud with him again as if it were a verbal communication. My defense objected, but it was over-ruled by Judge Julie Kocurek. What was the point of the prosecutor asking me to read parts of the chats out loud? There was nothing in there that would prove that I believed I was chatting with a minor. The sole purpose was to have the jury hear from my mouth some of the sexual stuff in the chats to make them more prejudiced against me. People are often hypocritical and extra-sensitive when it comes to hearing explicit sexual talk – regardless of what it is about.
There was absolutely nothing in the chats that people sitting in the court room – including members of the jury, the prosecutors, and the judge – had not said at some point in their lives to a sexual (or potentially sexual) partner. But at that moment they were all suddenly transformed into righteous virgins, who had never heard such “ungodly talk” in their lives. As soon as sex is mentioned – especially in the context of a witch hunt [“The Devil in the Shape of a Woman: Witchcraft in Colonial New England”- By Carol F. Karlsen, New York, 1998, p.198, pp.47-48] – most people who themselves are adulterers or fornicators (as most people in the sexually lax society of the U.S. are) start to act self-righteous and open their mouths in pretentious shock. The members of the jury, the prosecutors and the judge – all of them – displayed similar hypocritical shock at hearing some of the sexual talk from the chats.
After that the prosecutor brought my briefcase that was confiscated by the police when I was arrested. He asked me if the briefcase was mine. I replied “Yes”. He then tossed the briefcase rudely in my lap and mentioned triumphantly to the jury that the briefcase was discovered in my car. In my mind I was think, “and?” I thought he was going to make some point about it. But that was it. What did that briefcase had to do with the state’s allegation? Absolutely nothing!
Next, he presented my notebook that was also in my car when I was arrested. In that notebook I had jotted down the directions of the location where I was supposed to meet “Amy”. The prosecutor again triumphantly raised the notebook and proclaimed to the jury that the police found the notebook in my car and it had directions to the meeting location. Again I waited for him to make some point that had something to do with him proving the allegation against me. But no more comments were made about the notebook.
The state had now successfully proved a few facts. It had proved beyond a reasonable doubt that I had written directions to the meeting location in a notebook; that I had taken the notebook with me to the meeting location (what else would I do with it?); and most importantly, that I had my work-related briefcase in my car when I went to meet “Amy”. It also proved that I had used sexual language when chatting with “Amy” – Capt. Torsiello.
In reality, all these facts were completely useless and irrelevant – none of them had anything to do with proving the state’s allegations that I solicited a minor and that I believed that I was chatting with a minor. But just like the irrelevant witnesses, these irrelevant pieces of evidence were presented to create an impression that the state’s case against me was fool-proof and that there were an abundance of evidence and witnesses against me. This again is very typical of witch-hunts. Since in a witch hunt there is lack of factual evidence, people tend to create the illusion that there is real evidence by bringing in irrelevant things in the trial. Those who have studied the trials of the Salem witch hunts in 1692, will immediately recognize these tactics [“Salem Possessed: The Social Origins of Witchcraft” – By Paul Boyer & Stephen Nissen Baum, Cambridge, Massachusetts, 1974, pp.12-16]. No more need to be said about these “evidences”.
The prosecutor, Patrick McNelis, was a very seasoned prosecutor, and he was well aware that he had no real tangible evidence against me. His only hope rested in creating as much prejudice in the jury-members’ minds against me as possible. He had his work cut out there. The jury was already prejudiced against me.
Next, he proceeded to attack my mention of the incident with “Lisa”. As previously mentioned, “Lisa” had a very youthful face, which alarmed me into thinking that she might be a minor. The prosecutor asked me that once I was satisfied that “Lisa” was actually 19, was I sexually attracted to her. I responded in the affirmative. He then angrily shouted at me that I would have sex with a girl whose face looked like that of a 15-year-old’s face. I pointed out to him that “Lisa” was actually and adult but he continued to put me down for being attracted to someone whose face looked like the face of a 15-year-old girl.
The impression he was trying to give to the jury was that I was some kind of a pervert who was attracted to someone who could have been mistaken for a 15-year-old. Besides being completely false, the implication was also ignoring that fact that I refused any contact with “Lisa” when I thought that she might have been a minor. Further, it is extremely ridiculous to imply any such thing. I have seen 30-year-old women who look like they are in their teens. So now anyone who is attracted to any adult woman who may have a youthful appearance becomes a pervert, a child-molester, or a child-predator?
Perhaps, the state of Texas will next be passing a law where people will be arrested and prosecuted for having sex with adult women who may have the youthful appearance of a 15-year-old. The reader might think that I am joking or being sarcastic, but I am not. A close examination would show that this law would logically be no different than the current law supporting these Internet sting operations. Both laws have to do with the power of the thought-police. In cases such as mine, the state alleged that I solicited a minor. The fact that the person I chatted with was an adult is deemed to be irrelevant. The law insists that even if the person was an adult, I still must be guilty of soliciting a minor if I could have thought and believed that the person was a minor. In the same manner, it would not matter if a woman is actually 30. Any person having sex with a 30-year-old who looked like a 15-year-old could similarly be charged with aggravated sexual assault of a child because he could have thought or believed (or fantasized) that he was having sex with a minor. What is the difference between the two? Absolutely nothing! In both cases, there is no minor involved. The charges are based on one’s thoughts and beliefs rather than the actual facts and realities.
Given the hypocritical nature of many of these lawmakers in the U.S., I wouldn’t be surprised at all if people like the Texas lieutenant governor, David Dewhurst, and Attorney General, Greg Abbott, brought such a bill to the Texas senate. Once the thought-police is given power in one matter, they usually never stop there and seek to continue to expand their network of thought regulation. After all, wouldn’t people feel a little bit safer if all such people who will have sex with adult women who have a very youthful look, are put behind bars? Who is to say what such dangerous people might do next. If they can have sex with a 30-year-old who looks like a 15-year-old, what is to stop them from having sex with an actual 15-year-old? Better to lock all such witches behind bars in a classic pre-emptive strike operation.
And once again the political heroes can claim that they have put dangerous “child-rapists” behind bars and protected “our children and our future.” Parents all over will take a sigh of relief that their heroes have rid the streets of yet more witches and monsters. The heroes get re-elected and have great political careers. Everyone is happy, except of course the “child-rapist” who is behind bars for having consensual sex with a 30-year-old who looked like she was 15. Today, there are many such “child predators” behind bars who chatted online with an adult who pretended to be a minor.
Coming back to my trial, the prosecutor then took out my letter that I had written to him before the trial. He selectively started reading parts from the letter to the jury to prejudice them. My lawyer never objected to that. The prosecutor then read out the part where I mentioned that at one point I did think “Amy” was a minor. He conveniently omitted the context and the part where I explained how I changed my mind and, basing on my checks and experience, decided that “Amy” was an adult. He never gave me a chance to read the rest of the letter to the jury or to explain that one statement. This was a direct violation of the “Rule of Optional Completeness” (Tex.R.Evid.107) Legally, this rule was designed to
“…guard against the possibility of confusion, distortion, or false impression that could rise from use of an act, writing, conversation, declaration or transaction out of proper context.” [Livingston v. State, 739 S.W.2d 311, 331 (Tex.Crim.App.1987), cert.denied, 487 U.S.1210, 108 S.Ct.2858, 101 L.Ed.2d 895 (1988)]
According to this rule, the defense has the right to object and to demand that the entire context be read/revealed to the jury in order to diffuse any chances of confusion. My defense attorney failed to object to this, and I had no idea what this rule was at that time. As you will see later, the prosecutor continued to violate this rule and in fact it was this very violation that the members of the jury used to convict me in the end.
After my testimony, the jury was asked to go to another room. The prosecutors were objecting to the judge that I be not allowed to present my next three witnesses – “Lisa” and the two doctors from Michigan. They argued that “Lisa’s” testimony was irrelevant to the case and since they hadn’t actually accused me of being a “pedophile”, the doctors’ testimonies were also not necessary. In fact, all three witnesses were very relevant to the case.
The 6th Amendment to the U.S. Constitution states, “In all criminal prosecutions, the accused shall enjoy the right… to have compulsory process for obtaining witnesses in his favor.” [http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html].
The State had alleged that I was the type of person who used the Internet to prey on children and minors. They also alleged that had “Amy” been a real minor, I would have committed aggravated sexual assault. Though they never called me a “pedophile,” the implications in the charge and their opening statements were clearly pointing to someone who targets children – i.e. a pedophile. Therefore, the two doctors’ testimonies were very much relevant. Further, the state’s allegations were based on hypothetical “what if” scenarios. “Lisa’s” testimony would show what I actually did and how I actually acted in a situation where I suspected that the person I met was a minor. My incident with “Lisa” was a fact and not a hypothetical scenario like the state’s case against me. Therefore, in accordance with my 6th Amendment rights, “Lisa’s” testimony was very important and relevant in supporting my story and in refuting the State’s hypothetical allegations and implications.
According to the “Texas Rules Of Evidence” [“Courtroom Handbook on Texas Evidence” – 2007 (Goode, Wellborn and Sharlot – Volume 2A – Article IV)], “relevant evidence” means
“evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Rule 401, p.9)
According to Rule 404, in criminal cases, evidence of an accused person’s character or character traits is admissible for the purpose of proving action in conformity therewith on a particular occasion. (p.10). Further,
“[i]n cases in which a person’s character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct” (Rule 405(b), p.11).
So according to the Texas Rules of Evidence, I had a right to have “Lisa” testify on my behalf . However, the judge refused to allow “Lisa” to testify. She did allow the two doctors to testify. If it was the truth the court was after, why did it deny me the right to present a witness who could provide proof “of specific instances of my conduct.”? The judge also strictly forbade the two doctors from using the word “child” or to make any reference to the polygraph test that I had passed.
My attorney then summarized “Lisa’s” testimony for the court records in the absence of the jury. He came to me and informed me of the judge’s ruling. He told me that he had preserved “Lisa’s” testimony in the court’s record so that even though the jury will never hear it, I could bring it up in my appeal should I lose the case. I was disappointed, but trusted my attorney and was confident that if the case does go to an appeal, I will be able to bring up “Lisa’s” testimony in that.
The jury came back to the courtroom and we presented our next witness – the psychiatrist who had tested me in Michigan. The doctor testified that I had no mental illness, nor any of the clinical indicators that showed that I would be “likely to get into sexual problematic behavior with minors.” He pointed out that his clinical tests indicated that I had a personality disorder with traits of narcissism and histrionics with a very high level of intelligence. The prosecutor asked the doctor to read out the same line from my letter where I had written that at one time I thought that “Amy” might actually be a minor. He asked the doctor, why I would continue to chat with “Amy” after I had such a thought. The doctor replied that he was not surprised at all. He explained that a combination of my personality disorder with traits of narcissism and a high degree of intelligence made me believe that I was smart enough to figure out if the individual I was talking to was truly a minor. This statement of the doctor supported my testimony where I indicated how I had developed my own checks, and had finally determined correctly that “Amy” was an adult. The doctor ended his testimony by saying that he found nothing in my psychological makeup to indicate that I was the type of person who would target a minor for the express purpose of having sex with a minor. (R.R.V pp.47-54)
After the psychiatrist’s testimony, the next witness was the psychologist who had tested me in Michigan. The psychologist explained the types of tests he performed on me and stressed that there was no way I could have faked answers to the questions he asked me during the tests because these were “projective tests” with no set right or wrong answers. He stressed that though as a Christian he was disgusted at reading some of the explicit sexual statements in the chats, as a psychologist he found “no evidence of a person who has any sexual focus on children or adolescents or minor.” When the prosecutor asked him if he thought I was that kind of person who would get in his car to travel to meet and have sex with a 13-year-old, the doctor replied, “In my opinion, he’s not the kind of person who would do that kind of thing with the intent of having sex with a minor person.” (R.R. V pp.77-79)
After the two doctors’ testimonies the defense rested. In his closing statement, the prosecutor again tried to prejudice the jury against me by misrepresenting the facts. He said to the jury that it is very different when an adult woman says, “I am 15, and I want to be spanked,” and when one says, “I am 13.” For the first statement he used a low sexual tone of voice, but for the second statement he used a simple straightforward tone implying innocence. This again was a false presentation of facts. My conversations with the 30-year-old woman who pretended to be 15 years old, and the 40+-year-old male police officer (Capt. Torsiello) who pretended to be 13 years old, were not verbal, but written. Therefore, the different tones of voices were irrelevant and gave a false impression. From the factual perspective of the written text with no sound-effects, there was not much difference between the two statements – “I am 15” and “I am 13.” Both had to be interpreted by the reader in the light of his background experiences on these Internet chats and from what he saw in the “Age” fields on the respective chatter’s Yahoo profile.
The prosecutor, Mr. McNelis, continued to use emotional appeal during his closing arguments. Pointing to the psychiatrist’s statement that I had a very high degree of intelligence, he cautioned the jury: “This man is the most intelligent person you will all be with in a room in your life. Heck! He is smarter than me. He is so intelligent that he will fool you all into believing that he is innocent.” In other words, he was aware that he had no case against me and that he had not presented any hard evidence of my guilt to the jury. So, he wanted to caution the jury that if they had it in their minds that I was not guilty, it wasn’t because the state had not presented any evidence against me, but because I was so smart that I had fooled them all. In fact, the assistant prosecutor, John Saba, acknowledged in his closing arguments that “the defendant has chosen a defense that is impossible to break.” It was impossible to break because the State had no proof against me. Too bad the jury members weren’t looking for factual evidence; they were looking for emotional appeal and the pleadings of the prosecutors that I could have done what they alleged.
A simple word analysis will reveal that it was impossible for the state to prove the charge against me. The Merriam-Webster’s Dictionary [http://www.merriam-webster.com] definitions of the words proof and prove reveal why it was impossible to prove that I had either solicited a minor or attempted to solicit a minor:
Proof: The cogency of evidence that compels acceptance by the mind of a truth or a fact.
Prove: To test the truth, validity, or genuineness of.
Let us recall the definitions of the words truth, valid and genuine:
Truth: The body of real things, events and facts; actuality; the property of being in accord with fact or reality.
Valid: Logically correct.
Genuine: Actual; true; free from hypocrisy or pretense.
So, in order to prove the charge against me, the state needed to demonstrate that the charge was the truth, – i.e. based on reality – valid, – i.e. logically correct – or genuine – i.e. actual, true and not based on hypocrisy or pretense.
We have already seen that the whole case against me was based on fiction and alleged potential actions based on speculations about my belief. There was no real minor and I never solicited any actual minor. So the truth part goes out of the window.
Now this is what happened. I was charged with solicitation of a minor, who was actually a 40+-year-old adult pretending to be a minor and yet deceiving me by stating “her” (his) age as an 18-year-old adult. I was smart enough to figure out correctly – despite the logical hodge-podge – that I was chatting with an adult pretending to be a minor. Even though I was correct, and the state acknowledged that I was correct, I was somehow guilty of soliciting a non-existent minor. If this is not a huge jumble of illogic, then I don’t know what is. Therefore, the validity or logical correctness also goes out the window.
Let us check for genuineness. As the definition states, anything genuine must be free from hypocrisy and pretense. What does pretense mean?
Pretense: A claim made or implied; esp. one not supported by fact; make-believe; fiction; false show.
Let us see what the words make-believe and fiction mean:
Make-Believe: Imaginary; pretended.
Fiction: An invented story; an assumption of a possibility as a fact irrespective of the question of its truth; the action of feigning or of creating with the imagination.
“Amy” was a make-believe and fictional character. It was imaginary and an invented story. It was assumed that anyone chatting with this fictional character was possibly soliciting an imaginary minor irrespective of the truth that there was no real minor. Thus, there was absolutely nothing genuine that the state could test since it was all fictional.
Therefore, the State could in no way test the truth, validity, or genuineness of the charge against me. Thus, it was impossible for them to prove the charge against me. It was for this reason that the prosecutors were busy rousing the emotions of the jury members. They knew that logically they could never prove the charge against me.
I was very confident that I would win the case. I had presented my side of the story, and the two doctors had supported my story and emphatically denied that I was the kind of person who would want to target minors for sex. The state had produced absolutely no evidence to refute either my testimony or any parts of the two doctors’ testimonies. In fact, the state’s own star witness, Mr. Torsiello – the only person in any position to determine whether I thought “Amy” was an adult or a minor – had acknowledged that he couldn’t tell whether I believed “Amy” to be an adult or a minor. He further corroborated my testimony by stating that on these Internet chats people often lie about their age, identity and gender – all three things that he himself had also lied about when he posed as “Amy”. On top of all that, there really was no minor involved and I did actually chat with an adult who was role-playing as a minor – exactly what I had described in my testimony. With all these facts on my side, there was no way the jury would find me guilty – or so I thought.
At that point in my life, I still believed that America was what it was projected to be – the land of justice and freedom. I was naïve enough to believe that in the U.S. justice system, where I was supposed to be innocent until proven guilty, and where the burden of proof was on the state, justice would be done. I knew that the state had tried to do many things to prejudice the jury against me, but I was not on trial for my sexual immorality. So, no matter how much the jury disliked my infidelity towards my wife, I was still not guilty of soliciting a minor – the State had not produced any evidence or witness to prove its allegations.
I went to my lawyer’s office and we waited there for about two hours as the jury deliberated. My lawyer then received a call from the court that our presence was required at the court as the jury had asked a question regarding one of the doctors’ testimonies. So we went back to the court.
I was about to receive the shock of my life. It took the court reporter a little while to transcribe the part from the psychiatrist’s testimony from short-hand. We were given a copy of the part that was sent to the jury room. It had one line: the part from the psychiatrist’s testimony where he had read (at the request of the prosecutor) that part of my letter where I had mentioned that at one point I thought that “Amy” might have been a minor. Only one sentence from my letter, put in the doctor’s mouth by the prosecutor – without any context from my letter and without the doctor’s explanation as to why I continued to talk to “Amy” after this passing thought occurred to me and how I determined that “Amy” was an adult – was what the jury had requested.
The reality of the U.S. Injustice system was beginning to dawn on me. The jury had presumed me guilty. However, as they deliberated they could not find any proof of my guilt in the state’s evidence and witnesses. Apparently someone in the jury had pointed out this fact. It was at that instance that he Foreman of the jury, Mr. Larry Tabbert, requested that one statement from the psychiatrist’s testimony to establish my “acknowledgement of guilt”. I had been suspicious of Mr. Tabbert from the very beginning. During the jury selection he had been staring at me with anger, and I had mentioned to my defense attorney that I thought this person had already made up his mind regarding my guilt or innocence. However, by the time we had run out of our peremptive strikes, Mr. Tabbert not only ended up on my jury, but also became its Foreman. He was the one who requested the out-of-context statement from the court during deliberations.
The jury had presumed me guilty and its members were frantically searching for something to justify their decision. They found that one out-of-context statement and boom, there it was. To them, the statement meant that I had acknowledged my guilt that I believed “Amy” to be a minor. Apart from the fact that they had used this statement out of its context where it was clearly explained in the letter – as well as during my testimony and the testimony of the psychiatrist – that it was a passing thought and that I had ultimately decided that “Amy” was an adult, there is also the question of whether a passing thought in someone’s head constitutes his belief.
These are two different things. Many simple examples from our daily lives will establish this fact. For example, one day I went to a restaurant and ordered some soup, which I thought to be vegetarian. I eat beef, but I don’t eat pork. As I ate my soup, I felt pieces of meat in it. At first I was a little alarmed as I thought it was pork. But later, upon closer examination and after I smelled the pieces, I determined that it was beef and so I enjoyed the rest of the soup. Though the thought had passed my mind that this might be pork, does it mean that I believed it was pork? The answer is clearly “No.” I ran through my checks and determined that it was not pork and believed that it was beef. The difference between a thought and my belief is clearly established in this example. Similarly, at one point I thought that “Amy” might be a minor, but upon closer examination, I correctly determined that “Amy” was not a minor and I believed “her” to be an adult.
However, such basic logical reasoning is poison for witch-hunts and is therefore, never used. If people started using reason and logic in trials, how will they ever be able to rid the innocent public of the monsters and witches that roam the American streets haunting its defenseless citizens. Even today when I picture Mr. Tabbert sitting in the court room staring at me in anger, I can feel what the accused witches of Salem must have felt when they experienced such stares from the witch-hunters of the 17th century New England.
The jury delivered a guilty verdict, and I was immediately taken in custody. I was in shock. Immediately, the sentencing phase of the trial began. The judge had privately told my attorney (who then made it known to me) that he shouldn’t bring me to her for punishment as she would send me to prison and not consider me for probation. So, we opted for a jury decision.
During the sentencing phase the state presented some additional “witnesses” and “evidence”. One police officer testified that before “Amy” I had chatted one time with him when he had pretended to be a minor. This was nothing new. I had already mentioned in my testimony that sometimes I might have chatted with actual minors (though this police officer was certainly not a real minor), but that if I ever found out that the person was a real minor, I would stop chatting with that person and would never meet the person. I had obviously not tried to initiate any other contact or to arrange any meetings with this other police officer wannabe minor.
The state brought the computer expert on stand again. This time he testified that he had found a total of 632 yahoo profiles stored on my computer’s hard-drive, and that 32 of them “appeared” to be those of minor girls. This again, was no surprise. I had already told in my testimony that I might have unknowingly chatted at times with minors. Is that a crime?
In fact, the expert’s testimony supported my story once again. The majority of people I chatted with were adults – 600 out of 632, or 95% – and only a small fraction – 32 out of 632, or 5% – could possibly have been minors. Anyone who chatted with as many people as I did would come across a profile that may belong to a real minor – 5% is well within the limits of statistical chance.
Further, finding the profiles on my computer’s hard-drive was no evidence that I must have chatted with these 32 people. Often, if I thought a particular nickname was that of a female and/or the age field was blank or had an adult age on it as I viewed the profile through the shortcut method, I would open the main profile just to check if there was any picture on the profile – even before I initiated any chat. Once the main profile page was opened on my computer, a copy of the profile page was automatically stored on my computer’s hard-drive. It was these copies that the state’s computer expert found.
During cross examination, my defense attorney asked the computer expert witness if he found any evidence on my computer whether I chatted with or solicited any of these 32 possible minors. He replied that he didn’t find any such evidence. This again was an important point. Had the state found any evidence of me soliciting a real minor, they would have happily displayed it. Also, it wouldn’t have been hard for the state with its investigative resources – investigators of the Attorney General’s office, state police, federal U.S. intelligence service, and the computer experts – to actually contact those 32 people and ask them if I ever solicited them. In fact, I believe that the state did do that as it is not very hard to locate these 32 people and contact them. Had I solicited any of them, I can bet that that person would have been one of the state’s witnesses. But despite their efforts they did not find any evidence of me soliciting any of these 32 potential minors. So, the state’s case in both the guilt/innocence phase and the sentencing phase was limited to prejudicing implications that I could have done what the state alleged.
My attorney also asked the computer expert if he found any child pornography on my computer. The expert witness replied in the negative. This is also important. In most cases, people who are interested in having sex with children or minors will have some sort of pornography on their computers that depicts minors or children. As psychological studies show, people don’t suddenly start having sexual interest in children. People who target children have a character disorder that makes them prey on children. Upon investigation such people usually display a trail of evidence suggesting their interest in children – and interest in child pornography is one of them. The fact that despite their best efforts the state could not find any such trail in my past or on my computer showed that I was not the person they depicted me to be.
In any case, the jury decided to make my punishment exemplary and sentenced me to 13 years (the age of the fictional character “Amy”, who was actually a 40+-year-old man who had depicted his age as 18 on “her”/his profile) in prison. One of the conditions the judge put on me as she announced the punishment was that after my release from prison I would have to stay away from the “victim” and couldn’t come within 1000 yards of the “victim”. At first I thought the judge was on some drugs. But, later I realized that I was in the Twilight Zone – the jury, the prosecutors, and the judge all believed that “Amy” was real and so I needed to stay away from “her”. Had I not been in utter shock and depression, I would have asked the judge that if she could point o me who the “victim” was and where the “victim” lived, I would try and stay away from it. Perhaps the judge meant that I couldn’t go within 1000 yards of any fictional characters. Good thing I don’t read much fiction, or I would be in real trouble.
But this was not a new characteristic that the judge was presenting. She was behaving in the classical tradition of witch-hunt mentality. Those who were hunting down witches in Salem in the 17th century New England actually believed that the witches were doing real magic and were harming people with it. Without such brainwashed beliefs, witch hunts are never possible. At least, during the Salem witch trials there were real alleged victims, and not fictional ones like in my trial. With modern technology, the witch hunters of today can do one better than their traditional counter-parts – now they can have fictional victims
Tags: Art, David Dewhurst, Greg Abbott, Naveed Shams, San Francisco, sex, Texas, Witch Hunts, David Torsiello, justice, photography, Attorney General, Carol F. Karlsen, Charlie Brown, John Saba, Julie Kocurek, Patrick McNelis, Paul Boyer, Stephen Nissenbaum
