This will be the third time I’ve written about the beloved local law enforcement technique of tricking men who are seeking escorts of legal age into making deals with undercover cops pretending to be underage prostitutes. First, I described the process generally, from the state’s shaky cases to the brutal mandatory minimums that universally secure guilty pleas with ease. Then, I explored my creative side with a little poem. I didn’t talk much about the poor people who get caught up in all of this, though, the only real victims in these cases. One victim stands out more than any other.
I got a call one Friday night from a distressed friend of a man who’d been taken into custody that afternoon on what the friend said were some sort of prostitution charges. I called the initial appearance court and was informed it was a “child prostitution” case, a single count. My heart sank, as I’d already seen enough of these cases to know what was coming. I’d soon be meeting yet another unlucky guy destined to pay far more than he ever should for a bad decision made during a very dark time and compounded exponentially by police.
I went to that first evening hearing expecting several things from the case. The new client would be an intelligent, respectful, non-native English-speaker with little to no criminal history. He probably went on backpage.com hoping to find an escort, and the person he called or text messaged tried to haggle with him on price by claiming she was under eighteen. He would show up at the meeting place, and there would be either a hesitant agreement or he would try to walk out before even making an actual deal. After an arrest and charges, the prosecution would go ahead with zeal no matter how weak its case happened to be; the poor would-be John faces a mandatory 7 to 21 years losing at trial, after all. The eventual plea options would be to 1) class 5 felony Pandering with 15 days of jail, or 2) class 6 un-designated felony Child Abuse with 90 days of jail. Basically, avoid the same penalties as a manslaughter conviction by signing up for a slap on the wrist and either 1) becoming a guaranteed felon but doing less jail, or 2) having a chance at a misdemeanor but doing four times as much jail.
I was more or less right all around. My client didn’t speak English as a first language, and neither did any of the other people sitting in court that night appearing on the same charge. My client wasn’t just intelligent, though, he was brilliant, and he had the advanced degrees and resume to prove it. He’d also never received so much as a parking ticket in his entire life. His background story made it all so much sadder. He’d struggled to rise above poverty in a third world country, distinguishing himself with perseverance and intelligence and achieving amazing things. He came to the United States for a better life, and along the way, he met his wife and the two had a little boy. They shared a dream of raising him in this country, a place where he could have the opportunities they never did. Their marriage wasn’t perfect, and times were especially difficult when he responded to that ad, however.
In every one of these cases I have encountered, each defendant deeply regrets what happened. Even when they come from places where paying for sex isn’t as taboo as the laws here make it seem, they are not proud of what they tried to do. Those in relationships regret the betrayal more than anything. Some significant others forgive, some don’t. My client felt as bad as anyone I’ve ever met, and yet his wife stayed with him. Perhaps that was part of the reason why he felt so bad. Whether her decision was due to the circumstances of the case, which suggested he never intended to actually follow through with anything, is unclear. Regardless, the facts of the case were pretty mitigating.
It was apparent from the exchanges that the client was probably not paying attention to most of the officer’s statements about her pretend age, and nothing suggested he actually believed the person he was texting was actually sixteen years old. When the cop first said she was a “little young,” he did not respond at all for over half an hour. Then, he only mentioned the cost. When she later asked “u ok with a lil younger?” he again ignored that and asked about price. When she finally said “u r paying more for me because I’m only 16,” he only said “I just want to get laid” before discussing price yet again. It should be as no surprise that every defendant I’ve met with this sort of case comes from a cultures where that sort of haggling is consistent with the bargaining culture.
More than once during the initial exchange, the client would try to let it go. He was no longer interested, yet the undercover cop would continue to push and push. The cop was nothing if not persistent, inducing him to continue multiple times and even trying to make him feel bad for not following through with it. He eventually gave in, obviously, and the video of the meeting is also fascinating. The client was extremely nervous and visibly uncomfortable from the time he arrived at the hotel room. He was noticeably shaken just by the cop’s use of crude sexual language. He did not even want the fake sixteen-year-old to put on a sexy dress of some sort, and he appeared to be backing out of the transaction when officers decided to storm in the room. Had officers not come in at that point, I have no doubt he would have abandoned the transaction altogether.
The mitigation continued into the interviews with officers. In the first, he was on the verge of hyperventilating much of the time. He did indicate, however, that he believed she was nineteen, and he adamantly denied at all times that she looked underage. He said he did not pay attention to the messages closely, and that he thought she was lying about her age to try to get more money from him. It took cops almost half an hour of merciless interrogation and lie after lie to get something even arguably incriminating out of him.
They kept telling him about how he tried to have sex with “that girl” who was sixteen. When he asked why they were fixated on the fake age of a fake escort, the police report noted that as him seeing no problem with the age of sixteen. They then proceeded to drive home ad nauseum how “that girl” was a minor, and how her young age must have mattered a lot to him. They eventually asked, “so you didn’t care how old the girl was?” He said “no,” obviously intending to say he did not care that she was sixteen because he has no interest in sixteen-year-old girls. It struck me as pretty darn unfair, but also quite clever, that officers would spend twenty minutes trying to force someone to admit he was interested in a girl of a certain age only to ask him if he cared about her age then use it against him when he denied it. The question was a trap with no right answer.
His eventual charge alleged that he “knowingly did engage in prostitution” with a minor. The law, A.R.S. § 13-3212(B)(2), provides that “[a] person who is at least eighteen years of age commits child prostitution by knowingly . . . [e]ngaging in prostitution with a minor who the person knows or should have known is fifteen, sixteen or seventeen years of age.” If anyone were ever to actually risk 7 to 21 years of prison going to trial on one of these cases, I bet it would be a difficult jury trial for the state to win.
There’s a high risk of jury nullification. There’s also a lot of confusion about what he knew or should have known, and what that actually means. And that doesn’t even take entrapment into account. Arizona’s entrapment statute, A.R.S. § 13-206, requires that a defendant prove three things by clear and convincing evidence: 1) that “[t]he idea of committing the offense started with law enforcement officers or their agents rather than with the person,” 2) that “[t]he law enforcement officers or their agents urged and induced the person to commit the offense,” and 3) that “[t]he person was not predisposed to commit the type of criminal offense charged before the law enforcement officers or their agents urged and induced the person to commit the offense.” As far as my client’s case is concerned, at least, it seems like a perfect fit so far as child prostitution, and not prostitution generally, is concerned.
Sadly, what I’ve discussed up to now is not terribly uncommon for these cases. I imagine most of the many, many people who have pleaded guilty to this ridiculous charge because they feared years in prison had equally viable defenses and mitigating circumstances. What set my client apart was the fact both of his options regarding charges to which he would have to plead to avoid risking prison would ensure that he lose his immigration status. He would have to leave the country. He would probably never be able to come back. He would also be unlikely to ever gain entry into most of the top industrialized nations.
More importantly, his wife would have to choose whether to stay here with their son and raise their boy without a father, or to follow my client back to the third world country from which they both came. And did I mention she is a little bit shy of getting her PhD? Completing her education would mean an innocent little boy would get just one parent, not two, for a substantial period of time. That little boy could have his daddy, or he could have the opportunities his daddy worked a lifetime to get for him. He could not have both. The client’s innocent wife had to choose between being a single mom with a PhD and a son with a lifetime of opportunities, or be part of a complete family with the man she loves and married in the dangerous, polluted country she and that man fought their lives to escape.
I’m pretty cynical. Hell, I’m extremely cynical. Somehow, unfortunately, I was not quite cynical enough to predict just how far prosecutors will go when blindly following policies. For a while, I had a tiny glimmer of hope that someone in the Maricopa County Attorney’s Office had the humanity and compassion to ease up on the insatiable prosecutorial bloodlust for one little second and not tear apart a family and ruin a little boy’s life. I was a naive idiot, apparently.
Multiple immigration lawyers told me that the specific charges the prosecutors offered in each of the plea options appeared intentionally designed to guarantee negative immigration consequences. That’s quite interesting considering that the county attorney’s office here claims they do not consider such things. Multiple immigration lawyers also told me that changing the title of the charge and one statute in the string cite in either plea would allow my client and his family to stay here. Do you think the county attorney would budge at all? Do you think they would change about 10 characters to save a child? What about if my client did a year in jail? Two years? Pled to a higher level felony with lifetime probation even?
Not a chance.
The Maricopa County Attorney Office’s policy of not considering immigration consequences (except to offer pleas with the most disastrous possible immigration consequences) guaranteed the destruction of a family comprised of good people, the sort of people I’d love to have as friends, neighbors, or co-workers. As I spoke with the prosecutor, her boss, her boss’s boss, and others up the line, they said things like “he should’ve thought about that before trying to have sex with a child.” The ones who were slightly more aware of the fact there was no child said things like “that could’ve been a real child,” still ignoring the fact there never would’ve been a completed act absent police inducement and officers storming in to hold him hostage before he could back out. Prosecutor after prosecutor said the same thing: “we don’t see any special reason to deviate from policy in this case.” The hopes and dreams of little boys are worthless to them, apparently. Keeping families together? They just don’t care.
Eventually, my client just wanted to have the assigned prosecutor look him in the eye and say no. He was too trusting, too good a person to believe that anyone could be capable of doing to his wife and child what I told him the state insisted on doing. At the first settings, the assigned prosecutor would not even show up. Befuddled, incompetent coverage had no clue what was going on. My client wondered:
If they are this disorganized, won’t people lose faith in the system?
One coverage attorney opposed allowing my client to take his son to Disneyland. They didn’t want him to use his computer at work. None of them knew much of anything about the case. Judges at least disagreed with those requests. My client still hadn’t realized the prosecutors were just robots programmed to ruin his life, nothing more. When I finally got him the personal meeting he wanted, the actual assigned prosecutor showed up over an hour late. My client’s comment as we waited was interesting:
Is she doing this on purpose? Is this to tell me I’m worthless?
Little did he know she wasn’t. Not really. She just didn’t care about him. She cared about punishing him and about policies, sure, but only insofar as her obsession with that was purposeful was the horrible way she treated him and his wife on purpose. He was a crime to her, not a person, and he later saw first hand how little his wife or kid’s future mattered to that prosecutor, someone several years his junior and far less educated. Her easy life leading up to her cushy job destroying worlds couldn’t have been more different from my client’s. She told him point blank that he deserved what he was getting and that she did not care what happened to his family, though she was never able to look his wife in the eye. Rules are rules, and she did not see a reason to deviate from policy.
My client pled. He took the option with less jail, as he’d never set foot on American soil as a free man again whether he did 15 days 90 days. Why not do the least amount of time?
I’ve dealt with defendants who would’ve stared down 7 to 21 years in his shoes for a shot at a win, but they’d have had enough practice to sniff out a fake child prostitute a mile away. The sham only catches accidental felons. I’ve also dealt with guys who’d probably fight it up to the end and leave as they await the verdict, preferring to deal with a lesser failure to appear charge than do hard time should things turn out badly. This client isn’t like those guys. He’s risk averse. He’s responsible. He’s a far better person than any of the cops or prosecutors out to harm him, and he acted accordingly. Last I checked, the plan was for him to go home after 15 days of jail and for his wife and child to stay here until she gets her degree. I wonder if the child will recognize his dad when he finally gets to see him again. I wonder if the little boy will ever come back to the United States, or if his parents’ hard work was all for nothing.
When sentencing came around, the judge made comments about sentencing entrapment. He also made critical comments about mandatory penalties and the softball plea, and he looked at me with understanding as I put on the record the horrible things the state was doing to my client. The judge was in the process of giving my client a distant self-surrender date and some extra time with his family when the newbie coverage prosecutor, not the assigned one who is apparently far too important to cover a stipulated sentencing, objected.
The fresh-faced little tyrant demanded my client go into custody immediately. He accused the judge of ignoring the terms of the plea. The judge proposed a week earlier, and the insolent deputy county attorney continued his temper tantrum. As the childish fit intensified, the judge ultimately gave in. The prosecutor would accept a self-surrender that day at 7:00 p.m., so my client would get just an afternoon with his family, maybe an early final meal. My client turned to me and asked:
Why does that man hate me so much?
All I could say was that the prosecutor believed he was justified in doing whatever the worst thing he could think of happened to be, so long as it was to a criminal defendant. My client clearly knew that the coverage prosecutor had no idea about him, his family, his case, or any other relevant circumstances. I felt that my client finally, after months of dealing with the system, realized how it worked. His wife did too, asking this question as we all walked out together:
What did that man have to gain by doing that?
She knew the answer. That he didn’t gain anything. That that sulky little piece of shit could’ve suddenly had a change of heart and looked at my client and thought about his son and then proposed a self-surrender yet another month out if he wanted. It wouldn’t have affected his life the least bit. He could’ve penciled in an amendment to the plea that would’ve kept them all here too, something the judge clearly would’ve preferred. His office might’ve never noticed. Instead, he hastened the destruction of a family. He killed all their dreams as quickly as the judge would let him, and all for nothing. Because that’s what the worst prosecutors do.
My client asked me to go to his self-surrender, and I happily obliged. For what reason he wanted me there, I’m not sure, but I’m guessing he just felt like seeing another friendly face there when he looked out at the country he’d wanted to make his home for the last time ever as a free man. It was hard for me to remain calm, honestly. I thought about the cops setting their trap and pushing people into it. I thought about their aggressive interviews and all their lies, and their intense sense of moral indignation at the people who committed the make believe crime they fabricated and tricked them into committing. I thought about the self-righteous, uncaring, and all-powerful young prosecutors automatically taking whatever position screws the defendant most.
When I watched him processed into jail and saw the big metal door close, my only positive thought was that, wherever my client ends up, there’s a good chance that the clear and accurate picture he finally saw of our terrible system and some of the awful people in it would at least slightly soften the blow of never being able to return.
Filed under: immigration, Prosecutors, Sex Crimes · Tags: 10.5, 15, 21, 7, 90, assigned, child prostitution, county attorney, deportation, detective, entrapment, immigration, jail, misdemeanor, ph.d., PhD, prison, prostitution, reentry, removal, self-surrender, sting, third world, visa, work release