Jilted D.A. Swipes at Miss America

“Feel good” stories are rare in the media these days, and even when one seems to fit the category, something arises to potentially taint the tale. Last week I wrote about Miss America Lauren Nelson’s participation in a police sting targeting Internet child sex predators. At that time, her role as bait in the operation appeared sincere and courageous, but now, because of the stepped-on toes of a district attorney and a Newsday story linked by the Drudge Report with the headline “Sex Sting Imperiled By Miss America,” Nelson’s confrontation with evil has been ridiculed as a mere publicity stunt.

A deconstruction of the Newsday story and Drudge’s misleading headline is needed. To recap, since the sting occurred and was subsequently aired on “America’s Most Wanted” Saturday evening, a dispute arose between the Suffolk County Police Department, Suffolk District Attorney Thomas Spota, and Nelson. Spota complained that the Suffolk PD did not tell him of the operation until the day it occurred and that he never would have approved of using Miss America to lure predators. Nelson, when told she might need to return to Suffolk County to testify against the Internet pedophiles, stated the Suffolk PD never warned her she would have any further involvement in the prosecutions, and did not want to appear in court. According to Newsday, The Suffolk PD claimed Nelson was advised that because she was involved in an undercover operation, “there may be more expected of her down the road.”

My experience with district and U.S. attorneys over the years leads me to offer the following observations about this situation:

1. Although local and federal law enforcement are empowered to conduct investigations and make arrests when laws are violated, district and U.S. attorneys wield enormous control over when and how those arrests will occur, and even whether they will occur at all. It would disturb the American people to know how many crimes known to law enforcement are ignored simply because District and U.S. attorneys have made it clear they are not interested in prosecuting certain offenses, usually because they are too complicated for juries to understand or are not glamorous enough. District and U.S. attorneys are extremely selective about the cases they will prosecute; usually requiring law enforcement to provide them with what George Tenet would call “a slam dunk” case. Even then, the “slam dunk” must involve a large dollar loss amount or media attention. If the case had not previously attracted media coverage, a press conference is planned even before the arrest operation has been finalized. I have worked with colleagues who, while on surveillance and having observed the suspect engaged in illegal activity, were required to call the on-duty assistant U.S. attorney (AUSA) for permission to arrest the suspect. If it is a Friday afternoon, don’t bother calling an AUSA or district attorney for permission to arrest someone, because that would interrupt their weekend plans.

1a. Do not be fooled by D.A. Spota’s feigned indignation that Miss America was used in the operation without his approval. Spota (photo right) was actually bitter about two things: first, he has to do his job, only with a case not of his choosing; second, his not being notified of the operation until the last moment prevented him, an elected official, from actively participating and playing an important role in the sting and the “America’s Most Wanted” broadcast. District and U.S. attorneys love to toot their own horns to the media and rarely miss an opportunity to do so. Spota not only missed a chance to be interviewed for “America’s Most Wanted,” he also was left out of an operation involving Miss America, a media magnet. The career enhancement that could have followed television news clips and newspaper photos of Spota standing next to Miss America after a successful child predator sting was lost, and his bitterness was apparent in his petty sniping at the Suffolk PD.

1b. Yet, what did Spota expect? According to his own account, he had previously opposed a previous televised sex sting by the Suffolk PD last year. Law enforcement is not required to obtain prosecutor permission in advance. That permission is usually sought as a matter of professional courtesy, and the Suffolk PD had little reason to think Spota would cooperate. This is attorney arrogance at its worst, as Spota was clearly more irate that he was not consulted than he was pleased that eleven Internet predators who believed they were going to meet and eventually have sex with children were arrested. In a disgusting display of priorities, he was miffed because the Suffolk PD officers were in the video footage and he was not. Spota reportedly stated that the sting was merely “a publicity stunt.”

1c. Arrests and court decisions are public record, thus when a criminal is arrested anyone can go to the local courthouse and review the charges brought against a suspect. Why then do district attorneys hold press conferences to announce arrests? Technically, all press conferences are publicity stunts, drawing attention to the attorneys, tainting potential juror pools, but also warning potential criminals that their behavior will be punished. I found it interesting that a Google search of the terms “Thomas Spota,” “district attorney,” and “press conference” produced 287 hits. Clearly Spota is no stranger to publicizing his cases before the press, but in this case “America’s Most Wanted,” the arresting officers, and Miss America were in the limelight, and Spota was left offstage. This sheds an entirely different light on what appears to be his attempt to decline prosecuting these cases to embarrass the Suffolk PD while blaming them and Miss America for allegedly jeopardizing the cases.

2. Spota’s comments that cases are in jeopardy because of Nelson’s refusal to return to testify are exaggerated. Many, many criminal cases have been successfully prosecuted without testimony from undercover officers or agents. Computer forensic evidence seized from the suspect’s home can demonstrate graphically the Internet chats he engaged in with persons he believed to be underage, including his solicitations to meet with Nelson. The entire Internet chat conversation thread was captured electronically and can be printed out and handed to a jury, who will be sickened by what they read. Such predators nearly always have extensive collections of child pornography on their computers, which would also be introduced as evidence for the jury to view. This will further disgust the jury to the point that prosecution will be inevitable. The suspects netted in the sting were all captured on film arriving at an address they obtained through predatory online behavior, and they were also filmed entering the home willingly and being arrested. Intent, the key ingredient to a prosecution, is established through the Internet chats and subsequent actions to meet with the alleged youth.

2a. Spota and the defense attorneys are correct that Nelson can be subpoenaed to testify, but the complaint that an undercover officer rather than a civilian should have been used is disingenuous. Because of the risk to undercover law enforcement officers and the difficulty of successfully infiltrating criminal groups, most sting operations involve “civilians,” i.e. cooperating defendants. Cooperating defendants are no more qualified than Miss America for their duties. Who is better qualified to pose as a fourteen year-old girl than someone who was once a fourteen year-old girl? The Suffolk PD coached her regarding what she could and could not write, as the solicitation must be made by the suspect rather than the lure. She was obviously skilled enough to convince four (the number later grew to eleven) child predators that she was in fact fourteen and they were eager, after viewing her teenage photos, to meet her.

2b. Defense attorney Michael Brown, representing one of the eleven arrested offenders, reportedly explained why he felt the departure from normal police procedure was unfair to his client: "They use undercover detectives," Brown said. "They don't use a pretty blonde." So, if the lure is pretty, pedophilia is justified? I am confident that a jury will not be duped by that defense, and thus these prosecutions are not in jeopardy because of Miss America, despite Drudge’s attention grabbing headlines. It won’t matter that Miss America “sounded hot” on the phone or her teenage photos were more attractive than average. What mattered was intent, and the suspects all believed and perversely were excited by the idea that they were chatting and meeting with a child. Juries remember that, and reach appropriate verdicts.

3. There may be many reasons why Nelson does not want to testify in court, and I will not speculate about what those may be. I do understand why Spota is so eager to secure Nelson’s testimony. Her presence will attract national publicity to hearings or trials that would otherwise go unnoticed in the daily court dockets. What prosecutor would not want Miss America, symbol of beauty and youthful achievement, testifying for the state? Nelson previously stated that she wanted to raise awareness of the growing problem of Internet child exploitation, and her involvement in the operation did so. Spota was foolish to publicly criticize her participation and reluctance to testify, as she may well be subpoenaed by the defense and he will be working closely with her. He will love the publicity, but his jealousy-induced tantrum will make it awkward for everyone involved. So much for a "feel good" story.