The case that would never end may have just ended with Michael Artz in custody serving what would appear to be a 270-day jail sentence.
Last August, Michael Artz was convicted of the two lesser counts in his case stemming from oral copulation with a 16-year-old female student, a year behind him at Davis High, and from his ill-advised attempts to reconnect with her nine months later.
And yet we are still not completely finished, as still the theater of the absurd continues. The DA is attempting to collect a number of computers and thumb drives through forfeiture proceedings.
The DA has the burden in such cases of showing that the property was used in the commission of the crime. But unlike the case where the government seizes a car or other valuable property, we are talking about computers at least five years old, and, in some cases, a good deal more than that.
The computers have no real value except perhaps to Michael Artz’ father who owns them, and for whom there is account and billing information. So why is the DA expending time and energy on keeping them?
In her last duty to the defendant, Defense Attorney Kathryn Druliner filed a notice of appeal. Obviously, Mr. Artz will be out of custody long before the appeal gets heard, but he does face a life-long sexual registration requirement as the result of the third count.
The five-page document lists a number of complaints. First was the failure of Judge Mock to notify defense of his marriage to former Chief Deputy DA Ann Hurd. She writes, “It appears that the trial judge’s wife, who has a different last name from him, may have even filed this grant-funded charging document against defendant. The grant funds are dependent on the success of prosecutions and for the severity of crimes.”
She also cites the refusal of the court “to allow the defense to introduce evidence of the prior sexual relationship between defendant [and the victim]” as well as the refusal of the court to instruct the jury that the victim’s girlfriend was given immunity from prosecution.
She further alleges but does not elaborate on Brady Misconduct and Outrageous Government Misconduct.
She alleges, as we have noted, “Unequal and unfair treatment of parties, court acting as advocate for prosecution during trial including but not limited to: making objections, granting objections without grounds having been stated, limiting closing argument of defense attorney after evening recess when defense attorney had outlined her argument and argued for approximately 1.5 hours.”
She goes on to say, “The prosecutor had previously asked the court if the court intended to impose limits on counsel during arguments and the court said, ‘I never do.’ And then words to the effect of ‘One time, we had to sit here for 10 hours and suffer through the arguments of an attorney …’ “
However, the next morning, “The court told counsel as she was standing at the podium waiting for the jury to enter the courtroom, ‘Counsel you have one hour to finish your closing argument.’ (This belies the fact that the court and counsel had agreed the afternoon before that this was all that was needed).”
During the trial we had noted the treatment the defense had received from Judge Mock, who at various times yelled at her in front of the jury.
Writes Ms. Druliner, “Court treating defense attorney in hostile manner, raising its voice in angry manner in the presence of the jury and not allowing the defense attorney to approach to make its offer of proof.”
Count 3 is one of the more interesting components, as it relates to communication with a minor for the purpose of having sexual contact.
Ms. Druliner argues that there is insufficient evidence with respect to the third count. She cites the fact that Mr. Artz never got closer than 800 feet from the alleged victim’s door and that we do not know that he would have acted upon their discussion.
As Ms. Druliner notes, he “could have changed his mind, abandoned the plan, she could have said no and he, having no weapon or photos, would have had to use physical force at her front door – something that is beyond speculation based on the evidence.”
It should be noted that the idea of the exchange of photos for sex was first proposed by the victim, under the direction of the police, suggesting the possibility of entrapment.
She argues that the statute itself, which was passed by the voters following the highly publicized series on NBC Dateline “To Catch a Predator,” is unconstitutional “on its face” as it “attempts to criminalize communication, not action.”
She also suggests that, even if it is constitutional in narrow applications, “Here, as applied to high school friends who had already had consensual sexual relations, it is overly-broad and seeks to punish speech and thought in violation of the First Amendment as cited in trial briefs.”
Given the acquittal that Mr. Artz received on the main charge of alleged forced oral copulation and the reluctance of the jury to impose the second and third charges given the age difference of the defendant to the alleged victim, the last point may be their strongest road to reversing the conviction, a conviction that will have the most serious impact on Mr. Artz’ future.
—David M. Greenwald reporting
[quote]She also cites the refusal of the court “to allow the defense to introduce evidence of the prior sexual relationship between defendant [and the victim]” as well as the refusal of the court to instruct the jury that the victim’s girlfriend was given immunity from prosecution.[/quote]
What would a prior sexual relationship have to do with the defendant having sex with an underage girl, other than to prove he did so more than once? What am I missing here…
[quote]However, the next morning, “The court told counsel as she was standing at the podium waiting for the jury to enter the courtroom, ‘Counsel you have one hour to finish your closing argument.’ (This belies the fact that the court and counsel had agreed the afternoon before that this was all that was needed).”[/quote]
If the court and counsel agreed ahead of time that defense would need only one hour for closing arguments, I’m not understanding defense counsel’s claim she was somehow cut short by the judge… or am I not reading this correctly?
[quote]She argues that the statute itself, which was passed by the voters following the highly publicized series on NBC Dateline “To Catch a Predator,” is unconstitutional “on its face” as it “attempts to criminalize communication, not action.”[/quote]
What statute is being referred to here?
[quote]She also suggests that, even if it is constitutional in narrow applications, “Here, as applied to high school friends who had already had consensual sexual relations, it is overly-broad and seeks to punish speech and thought in violation of the First Amendment as cited in trial briefs.”[/quote]
It was my understanding the defendant was only found guilty of have sex with an underage girl. So I am not following this argument here…
“What would a prior sexual relationship have to do with the defendant having sex with an underage girl, other than to prove he did so more than once? What am I missing here…”
It would show there was an established consensual relationship there that never came out in the trial. It would also demonstrate the existence of the relationship prior to his turning 18.
“It was my understanding the defendant was only found guilty of have sex with an underage girl. So I am not following this argument here..”
No he was found guilty of 288.3 in addition to the sex with a minor.
“What statute is being referred to here?”
The PC 288.3 charge ([url]http://www.google.com/url?sa=t&source=web&cd=1&ved=0CCMQFjAA&url=http://67.199.72.34/php/Information/Papers/sexoffendermatrix.doc&rct=j&q=PC 288.3(a)&ei=uZDzTeXlGpO4sAPm69XICw&usg=AFQjCNHnhemeV8PKLWEkKEcPqrFVLA_tkA&sig2=URboCs8XlT2azHggEQ4ibw&cad=rja[/url])
Thanks for the clarification. According to your link:
“PC 288.3(a) (b) (c): New section. Created a new crime for a person who arranged a meeting with a minor – or a person believed to be a minor – for purposes of committing a sex crime or sexual exposure. It is a misdemeanor or felony if the offender has a record for a crime that has required him or her to register as a sex offender. Punishment is a $5,000 fine and jail time up to one year. For a second violation, state prison for up to four years is the punishment.
A new crime was created by this provision which may create increased caseloads for probation officers.
PC 288.3(a): Internet luring is a crime. Anyone with the intent to commit an offense specified in PC 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1. 311.4 or 311.11 will be sent to state prison.”
I still don’t see the relevance of a prior consensual relationship. How would that help the defendant? I’m just not following the argument here…
I don’t know enough about the caselaw on Stat Rape to know if having an existing relationship mitigates the crime.
From http://www.sexlaws.org:
[quote]
State:California
Question:
My boyfriend just turned 18 and I’m 16. Would it be unlawful If I engage in sexual activity?
Answer:
Yes. It is unlawful for an adult (18 or older) to engage in sexual intercourse with a minor in the state of California. Age 18 is considered the age of majority and the age a person becomes accountable to the “adult” system of justice. This is true even if the 18 year old is in high school. The legal age to consent to have sexual intercourse in California is 18. The 18 year old risks criminal legal action if engaged in a sexual relationship with a minor. The minor would be considered the victim and not be charged. With a 2 year age difference, if convicted of unlawful sexual intercourse, the most probably classification for the crime would be a “misdemeanor” which can include a fine, civil penalty and up to a year in jail; however, the law states that these crimes can be classified as a misdemeanor or a felony, so it could go either way depending on the circumstance[/quote]
[quote]I don’t know enough about the caselaw on Stat Rape to know if having an existing relationship mitigates the crime.[/quote]
The whole point of statutory rape is that the victim does not have the capacity to consent. So the fact that the couple had a prior existing relationship would only damn the defendant all the more, indicating he had repeatedly engaged in statutory rape. So I’m not following Ms. Druliner’s line of reasoning here…
We know that the letter of the law is that. The question is the intent of the law which was to protect girls against much younger predators and the discretion of the DA’s office.
The “intent of the law” is irrelevant in this context, I think. The “intent of the law” is a policy question, and may stand for the proposition the law needs to be tweaked. But in so far as the Artz case is concerned, I just am not seeing the prior consensual sex angle as in any way helpful. In fact, it seems damning. I’m still waiting for Ms. Druliner to clarify… there may be some legally technical reason she is getting at that I am just not seeing in regard to PC 288.3…
[quote]”We know that the letter of the law is that. The question is the intent of the law which was to protect girls against much younger predators and the discretion of the DA’s office.”[/quote]I’m not sure you wrote what you intended to say here, but I’m responding to what you’ve said before on this issue. First, you have a higher burden when you claim the “intent” of a law is something different than the “letter” of the law. Just saying this doesn’t make it true.
I’d argue the opposite is true with respect to the vaguely worded crimes (“the two lesser counts in his case stemming from oral copulation with a 16-year-old female student….”) for which he was found guilty. The intent of the law was to set limits on what is considered unlawful sex when young people are involved.
Are you saying that we again have a case where you agree the accused is guilty as charged, but where you think the law should permit such acts?
I’m also a little mystified about how the alleged sex with another young woman and the defendant’s sexual history with the victim prior to his illegal acts could help his case. It certainly smacks of a new twist on the old “he couldn’t be guilty of rape because she’s agreed to sex before, including with him.”