A Hot TV Program Spurs Concern by Lawyers over Fair Juries and 'Miranda'
By Tresa Baldas
National Law Journal
November 13, 2006
http://www.law.com/jsp/article.jsp?id=1163153121972
The NBC television series "To Catch a Predator," which features confrontations with men allegedly seeking sex with minors online, may be popular with viewers, but not with criminal defense attorneys, who claim the show raises a range of civil rights issues.
Seating an unbiased jury when a client's face has been splashed all over national television is nearly impossible, they argue. Miranda rights and search-and-seizure issues are also compromised by the show, they add.
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| Photo by Sherry Lee |
In the last two years, 183 alleged online sexual predators have been formally charged as a result of being caught on the show, which has run sting operations in California, Florida, Georgia, New York and Ohio with the help of an online predator-watchdog group. More than 20 of those cases have resulted in guilty pleas or convictions, with the remaining cases still pending.
'TOWN SQUARE' TRIAL?
"Without question, it tramples on their constitutional rights to due process and a fair trial," said Blair Berk of Tarlow & Berk in Los Angeles, who is representing a doctor featured on the show that aired on Oct. 6. The man allegedly showed up at a house hoping for a date with who he thought was a 13-year-old girl he met online. People v. Wolin, No. SCR 495892 (Sonoma Co., Calif., Super. Ct.).
Berk likened the show's tactics to "trying someone in town square without giving them due process.
"How do you, with a ratings-driven TV show, with a client as the poster child for the theme of the show -- which is that everyone featured on the show is a sexual predator by definition -- how do you have any chance at securing that person the presumption of innocence, due process or the right to a fair trial?" Berk said.
"They are being tried on TV from a purely prosecutorial prospective."
"Dateline NBC" correspondent Chris Hansen denied claims that the program fails to guard against entrapment and violates defendants' right to a fair trial. He noted that the sting operations always start with the alleged predators initiating the contact with the decoy, not the other way around.
"We are very cautious about this. We understand that everybody is due their day in court," Hansen said. "But at the end of the day, it's no different than if [the alleged predators] walked into an investigation that was run by law enforcement."
He said that "the reality is that the proof of intent in many cases is in the chat log. And the chat logs speak for themselves."
Gary Bostwick of Sheppard, Mullin, Richter & Hampton in Los Angeles, an attorney for NBC Universal Inc., was unavailable for comment.
Chat logs spoke loud and clear to one federal judge who, in August, convicted Maryland Rabbi David Kaye -- snared in an NBC investigation -- of traveling across state lines to have sex with who he thought was a 13-year-old boy he met on the Internet. U.S. v. Kaye, No. 1:06 cr205 (E.D. Va.).
In his opinion, U.S. District Judge James C. Cacheris cited chat logs as "providing more than sufficient evidence that defendant persuaded, enticed and induced the young boy to engage in a sexual act."
According to court documents, Kaye's lawyers argued that Kaye was " simply dirty talking," and that Kaye was induced and enticed by the sting volunteer.
Cacheris rejected both arguments. Kaye is scheduled to be sentenced on Dec. 1.
Steven Harmon, who is defending five California men caught on the NBC show, including a lawyer, a homeland security officer and a teacher, said his main concern is whether or not he can get a fair trial.
"I'm just anticipating that dreadful moment of being in the courtroom when the judge informs the prospective jurors that this is one of those 'Dateline NBC' cases, and hear all the groans and see the rolling of the eyes and stares at my client," said Harmon of Harmon and Harmon in Riverside, Calif. "It's going to be very difficult to find a jury that will be able to listen to the whole story."
But "To Catch a Predator" doesn't tell a full story, argued Ian Friedman, an Ohio criminal defense lawyer whose firm is currently representing some men featured on the show.
To do so, Friedman said, "they'd have defense lawyers on who can explain to the viewers that this isn't a one-sided story."
Friedman, of Ian N. Friedman & Associates in Cleveland, said his firm has represented and advised about 100 men arrested in online predator stings, including a handful caught on the NBC show.
"This show makes our jobs more difficult, just like 'CSI' makes a prosecutor's job more difficult," Friedman said, referring to a popular CBS television show about crime scene investigations.
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