Ex-Cop May Get Relief in Kiddie Case

PASADENA, Calif. (CN) – The trial of a former Highway Patrolman accused of trying to commit a lewd act on a child was tainted by a prosecutor’s misstatements and failure to support a finding of intent, the 9th Circuit ruled.
     The appeals court Monday ruling means the trial court must consider Stephen Robert Deck’s habeas corpus petition on remand, unless it decides to grant a new trial to Deck, once a lieutenant in the California Highway Patrol.
     Deck was arrested by Laguna Beach officers in 2006 through a sting operation with the organization Perverted Justice Foundation.
     Based in Washington and California, Perverted Justice enlists volunteers who create online identities as minors. The organization is known for its collaboration with Dateline NBC’s “To Catch a Predator” series.
     After exchanging several messages of a sexual nature online with a Perverted Justice volunteer who had assumed the role of a 13-year-old girl named “Amy,” Deck arranged to meet the girl in a public place, prosecutors said.
     The 9th Circuit’s opinion states that Deck suggested that if he got along with the girl then later they might engage in “sexual activity.” In online chats, Deck mentioned that he would like to take photographs of Amy, according to the opinion.
     Before their meeting, Deck told Amy he was not feeling well. “‘Remember I am sick so no kissing or nothing. Just bringing you your pie,'” Deck wrote during one online chat, according to court records.
     After he met a young woman posing as Amy at a picnic table in a park, police officers arrested Deck. A search uncovered a pack of six condoms that were past their sell-by date, a digital camera and a piece of pie, the California Court of Appeal opinion cited by the 9th Circuit states.
     After he was charged with an attempt to commit a lewd or lascivious act upon a child younger than 14, a jury convicted Deck in Orange County Superior Court on Dec. 22, 2009. A judge sentenced him the next year to 365 days in county jail and five years probation.
     In late 2011, after a state appeals court affirmed his conviction, Deck filed a petition alleging that the trial prosecutor had misstated the nature of the offense, and that there was not enough evidence to support intent.
     The California Court of Appeal had found that during closing arguments the prosecutor had undermined a finding of intent by stating that Deck had intended to engage in sexual activity with Amy at “some point in the future.”
     The prosecutor reportedly said: “But even if his intent was just to meet her, get to know her, break the ice and follow the next day, the next week, maybe [in] two weekends when mom’s gone, again, as long as he took a direct, but ineffectual step towards that goal, that is all I need.”
     The prosecutor added: “I don’t need to prove to you that he was going to commit a lewd act on that day, just some point in the future.”
     The state appeals court found that the error did not prejudice Deck and that evidence was sufficient to convict him. U.S. District Judge Michael Fitzgerald in early 2013 denied Deck’s petition for habeas corpus.
     The 9th Circuit panel on Monday overturned the federal court ruling. It found that the prosecutor’s comments were neither inadvertent nor isolated, and that “it cannot be questioned they went to the heart of Deck’s defense.”
     Judge Morgan Christen said the evidence to support a conviction of intent was underwhelming.
     Even though authorities had found the condoms and a camera in his car, that did not make clear that Deck intended to “follow through,” the judge wrote.
     “Despite the significant evidence presented by the state, we cannot say there was overwhelming evidence that Deck intended to commit a lewd act on the specific night in question,” Christen wrote for the 9th Circuit panel.
     After closing arguments at trial, jurors sought clarification about when Deck intended to commit the lewd act, and asked the judge to clear up the issue.
     “The lawyers’ diametrically opposed statements of the law in closing arguments confused the jury, but a corrective instruction was not given,” Judge Christen wrote for the panel. “Nor was the jury’s request for clarification answered, and the written jury instructions did not address the subject of the jury’s confusion.”
     Judge Milan D. Smith dissented. Smith said that if the case reached the U.S. Supreme Court, he believed it would reverse the 9th Circuit for ignoring precedent in the Antiterrorism and Effective Death Penalty Act.
     Smith said that 13 recent 9th Circuit decisions granting habeas relief had been reversed by the Supreme Court.

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