I wish you had read the other statute I posted - the one describing the crime of ATTEMPT.
If you had, and if you understood it, I suspect your analysis would have been different.
It depends on the actual offense. If a person solicits a woman (who happens to be an undercover cop] for sex, then says “on second thoughts, no,” they have still committed the crime, which occured at the moment of solicitation.
Similarly with drugs, if the elements include offering for sale, the fact that you pulled the sale away after making the offer does not in and of itself negate the crime.
Again – ATTEMPT. If you plan to rob a bank by tunnelling under from the store across the street, and ultimately break into a deserted, empty space because, unbeknowst you while you were tunnelling the bank closed down, you are still guilty of the ATTEMPT.
Did everyone’s eyes simply glaze over when I posted that section?
No, I do not misunderstand probable cause, and I object to your attempts to position yourself as the only person in this discussion who does understand that concept. You seem to believe that law enforcement functions in a vacuum and that police have zero responsibility to consider whether a suspect is ultimately prosecutable at all before expending (or squandering) time and resources on an arrest and burdening the criminal justice system with the case.
To return to your original question: I’m saying that the police should not have arrested Conradt. They did not do their homework on this case; they had a responsibility to conduct their own investigation and they did not. I am not suggesting Conradt was innocent, but sending a SWAT team to his home on the word of some television producers was grotesque malfeasance.
Well, for inchoate crimes, there is the defense of renunciation. But I feel like trying to explain that at this stage would be even more confusing to an audience that hasn’t grasped the inchoate crime concept in the first place.
I was trying to leave that out… hell, I’ve forgotten most of what I knew about inchoate crimes, so for people who didn’t study law it might have muddied the waters…
Undoubtedly a Texas ADA knows the Texas penal code and relevant case law better than I.
But many things go into the calculation of whther or not to press charges beyond simply “Is it possible?”
The Texas ADA has to consider the political mood surrounding an operation that was closely associated with the suicide of a well-liked colleague, and the likelihood that backlash would tend a jury towards sympathy acquittals. She has to consider the strength of her evidence in the cases, and how that evidence would play to a jury.
Similar cases have been prosecuted in other states, with laws not meanigfully different than those in Texas. It’s certainly possible to prosecute them successfully. What’s your explanation for those successful prosecutions?
That’s absurd. How about this situation:
You are close friends with X, a known coke dealer. Y, an undercover cop (or an informant) befriends you, and some mutual friends, and keeps up appearances by hanging out with the lot of you, doing coke with the group, etc. One day, Y is ready to make the bust, so he calls you and says, “I wanna buy some of X’s shit. Can you ask him about it?” You respond, “I’ll sell you some coke. Kidding! No, I’ll drive you over to X’s place, don’t worry about it.” Have you committed a crime?
Thank you!
That is exactly my point. When the cops are dancing to the tune of TV producers, we are all in some deep shit…
Well, we seem to have come a fair distnce from the first claim I addressed:
Your argument is a bit different from the one offered by Hostile Dialect above. You acknowledge (now, anyway) that probable cause existed, but object to the arrest attempt on the apparent grounds of judicial or law enforcement economy.
This is not an open-and-shut argument, as the probable cause question is. For what it’s worth, I believe in the value of arresting a person who is willing to go this far down that path of sexually charged talk and arrangments with a minor is a perfectly fine deterrent, even if, ultimately, it’s discovered that the case is not a good candidate for prosecution. But reasonable people may differ on this view. In any event, it’s for police to determine their own economy and their own use of resources. In this case, they reached a determination adverse to the one you are urging upon us, and I agree with them.
Depends. Were you kidding?
This is a question of fact for a jury to determine. If you were kidding, then you lacked the requisite mens rea, the guilty mind, and are not guilty of any crime.
If you were serious, then yes, you’ve committed a crime.
Well, color me surprised that “guilty mind” is a recognized factor in the question of whether or not someone has committed a crime or not. (I knew it, or something like it, was a factor in the difference between, say, manslaughter and murder, but no need to go down that garden path.)
Out of curiosity, in terms of legal precedent, what would be necessary to establish mens rea in this case (the coke one)?
What is absurd? I responded directly to your example. If a person offers a hooker money for sex, then changes their mind, as far as I know the crime of solicitation has still occured. If I offer you ground up caffeine pills for sale, then pull them back, saying that I changed my mind, I have still made the offer of sale, which is, I believe, where the crime occurs.
I’m not a criminal lawyer, so I am going from memory here. Not that I ever really studied the elements of sale of controlled substances or solicitation.
As for your example here, if I offer to drive someone to commit a felony, then I am guilty of an offense.
What is absurd is exactly that. I’m not saying I don’t believe that the law works that way–I do. I’m just saying it seems absurd to me.
Walked right into that one, didn’t I? 
I guess I assumed that the cop wouldn’t be interested in prosecuting you in that case, if you’re not also a coke dealer. What I meant to ask was, if you joked about selling him coke and you never actually intended to do so, would you still be guilty of selling him coke?
I think you do (or did) misunderstand probable cause, Joechip. The entire conversation, until this gem of yours, was about probable cause.
Here’s the conversation we had:
I asked about probable cause, you answered that it didn’t exist because of uncertainty over venue.
I point out that for PC purposes, violation of Texas law is sufficent; we don’t need to know what county has jurisdiction.
You’re the one that moved away from the probable cause argument – don’t blame you; it was a sinking ship for you.
I think the problem is more with the fact that your examples are victimless crimes, which should arguably be not illegal. If I solicit a hooker, the argument goes, and then withdraw the solicitation, there has been no harm, so no crime. Its very hard to justify a crime having been committed with such a quick change of heart if you don’t think the completed act itself should be a crime. The bottom line is there does not have to be harm for a crime to have occurred.
Actually, I totally missed that aspect of the hypothetical. As Bricker has said, if you never intended to sell the drugs, then there is no crime. What is running through my mind now is whether you could get double charged in that situation. Conceivably, you are an accomplice both to the purchase and to the sale of the coke. But then again, the purchaser is an accomplice to the sale, and cannot be double charged. This is why I am not a criminal lawyer. The hypotheticals confuse me.
I’ve got a few questions about the online-luring process:
(1) The place where the fake-teen and the maybe-predator meet in the first place… is this somewhere that normal adults would clearly never go? Ie, is it the “13-to-15-year-old-only chat room” as opposed to the “Britney Spears #1 fan web site”?
(2) What happens if the FT and the MP start chatting and the MP is just a friendly guy who enjoys chatting but isn’t making any moves to advance the conversation towards either sex or meeting in person? Does this ever happen? Does perverted justice just have the FT say “hey, it was talking to you, kthxbye” or does the FT start pushing towards those topics?
Because if the answers to those questions are “no” and “no”, respectively, I can easily imagining this catching men who would never have been a threat to anyone, but who were just lonely. This is particularly true if the FT is actually trying to be flirtatious and friendly and so forth. Some people are very very lonely, and suddenly having someone be interested in you out of the blue can be INCREDIBLY intoxicating.
Here’s what I don’t understand: in the statues you cited, it states that one cannot claim as a defense that one was “engaging in fantasy.” Why not, exactly, if that’s actually the case? Does that mean even if you can convince a jury you were engaging in fantasy (i.e., pretending you were talking to a minor), you’re still guilty of a crime?
That’s what I meant about “tacked on”—it appears solely intended to restrict a defendant’s options for defending himself. In the drug example, could the law just as easily state that you aren’t allowed to claim you were kidding, as your defense? If not, what makes the kiddie solicitation a special case?
The existence of the appropriate mens rea is a requirement for almost every crime. Crimes that explicitly remove any mens rea element from their definitions are rare indeed. They are called “strict liability” crimes, an indication that the conduct alone imposes criminal liability, regardless of the intent behind it.
Establishing mens rea is not always easy – we ask a jury to essentially read a mind. But That’s what juries are for – they are finders of fact. A jury can infer that someone intends the ordinary course of their actions. Legally speaking, if there is credible evidence in the record to support a jury’s determination, then that finding is legally sufficient. So if the jury were to hear testimony that the accused said, “I will sell you coke,” that is legally sufficient to meet the mens rea requirement. Practically, the jury would need to be convinced, and if that line were followed almost instantly by, “Just kidding!” then it’s hard to imagine a jury that would convict.
If you’re actually talking to a minor, then it’s no defense that you were “engaging in fantasy” – that is, you never intended to meet or to have sex with the minor. The harm being criminalized is the exposure of minors to sexually explicit interactive dialogue.
If you’re being charged with attempt, then it’s a defense that you were engaged in the fantasy of talking to a minor. It’s not a defense that you were engaged in the fantasy of meeting up.