Last night HBO debuted its intriguing documentary “Thought Crimes” focusing on the Cannibal Cop case here in NY. The trial and the show exposed a dark side of the Internet, revealing chat rooms and websites devoted to discussion and fantasy about kidnapping, raping and even murdering women. But it also showed the potential danger of “Conspiracy” charges which can be brought even if a crime was not actually committed.
I’ve written about this case a number of times- most recently, in this post about a juror speaking out But let me quickly recap the case – Gilberto Valle was an NYPD cop and new father when he began going onto fetish websites that explored the above content. He would do so in the late evening into the early morning when his wife and baby were asleep. He would regularly discuss actually killing and eating his wife. Then things got even darker, he used an NYPD computer to access personal information about women he knew and went to college with. He began talking about specific plans to kidnap one who would be raped and killed. He said he had bought most of the items he needed and learned how to make chloroform at home. While he never actually did those last steps he claimed he did, he did take a trip and have lunch with the alleged potential victim. He told his chat room cohorts that he was excited to be “casing his first kidnapping.” He immediately reached out to them upon coming home from the trip to tell them what he learned.
When I wrote my first blog post about the case, a juror from the case reached out to me and as described in the above post, told me that the visit to the college friend and the use of the NYPD computer to get her personal information was enough to show that he moved from fantasy to planning an actual crime. Reasonable minds may differ on that, but the jury was unanimous that his actions fit the crime of conspiracy. A federal judge disagreed and reversed the jury’s verdict. That decision is presently on appeal.
And I think the government may very well win that appeal. Not because that’s necessarily what’s right in the case but because the law of conspiracy is a favorite tool of federal prosecutors and they will argue that future cases will be hampered if a jury can be readily second-guessed on whether the government has proven its case. For all its references to 1984 and “thought crimes” the HBO documentary did not do enough to explore how the US Attorney’s Office has had a mad love affair with “Conspiracy” since Ed Meese became Attorney General under Ronald Reagan. It’s a “Catch-all” crime that normally leads the top of a Federal Indictment precisely because it can be so easy to prove. In most cases, you need to prove that the defendant actually committed a crime. Under conspiracy law, you need only prove that the defendant discussed or planned a crime and then took one overt act towards committing that crime. The overt act could be (and often is) a perfectly legal act, like renting a car or purchasing rope.
Conspiracy is used in drug cases, weapons distribution cases, terrorism cases, even stolen car theft rings. It not only allows the government to arrest you and charge you even though no crime was committed, it also allows the government to ensnare people into large-scale criminal enterprises they were not actually part of. That’s because the other arm of conspiracy is that if you choose to do a crime with John Smith, let’s say a single drug sale, if you and John Smith get arrested, you could find yourself being charged with all of the drug sales John Smith has made in recent times as part of larger scale operation by being accused with “conspiring” with him. So even though you only agreed to sell one gram of coke, you could be charged with being part of a multi-kilo drug ring.
The feds get quick plea and cooperation deals from low-end members of the conspiracy when they see the time they are facing for what would amount to misdemeanors in State Court. Conspiracy is the bread and butter of the US Attorney’s Office and they are not likely to give up on it anytime soon. They will argue to the Second Circuit (the NY Federal Appeals Court) that whether one overt act was committed in furtherance of a conspiracy is a jury question and that a court cannot usurp the jurors’ functions in deciding if the acts proven by the government were enough. The Second Circuit would have to decide that no reasonable juror could have believed that using the NYPD computer and taking that trip to case his college friend were sufficient overt acts to justify the conviction. You can expect a vigorous argument by the US Attorney’s Office about the importance of conspiracy charges to prevent crimes from happening and to catch people before they commit public harm.
HBO was kind enough to thank me in the credits of the film for some background legal information I gave them and for facilitating an interview with the juror who contacted me after my blog post. The piece did a good job of showing how carefully the jury considered the evidence and the elements of the charge. In the documentary, the juror talked about how they understood that their verdict would change a man’s life forever and that they had to be sure before they pronounced him guilty. But she also said that they were confident when they were done that the evidence that Valle had crossed that line into actually planning a crime had been met. We’ll have to see if the Second Circuit agrees.
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