In Sex Arrests Hailed by Pirro, Little Jail Time, by Serge F. Kovaleski, New York Times, October 13, 2006

In Sex Arrests Hailed by Pirro, Little Jail Time

By Serge F. Kovaleski
New York Times
October 13, 2006

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Jeanine F. Pirro, the former Westchester district attorney, campaigning for state attorney general on Monday. Photo by Louis Lanzano/Associated Press

In press releases she issued over six years, Jeanine F. Pirro, the Westchester County district attorney, trumpeted the arrests made in Internet sex stings that her office ran.

By the time she left office at the end of 2005, that undercover pedophile operation had snared 111 men, including a Roman Catholic priest, a private-school headmaster, a New York City detective and a former Brooklyn prosecutor.

Now, as the Republican candidate for attorney general, Ms. Pirro has made her pursuit of these sex predators a central theme. Her campaign Web site says that the sting operation, which she started in the summer of 1999, led to the arrests of "over 100 pedophiles — with a 100 percent conviction rate."

While Ms. Pirro's press releases repeatedly pointed out that the crimes were felonies punishable by up to four years in state prison for each count, a review of the cases shows that the overwhelming majority of people received sentences that let them avoid extensive jail time.

In most nearby counties, prosecutors have had a higher rate of felony convictions in similar cases, because Ms. Pirro allowed nearly one in five defendants to plead down from felonies to misdemeanors, according to prosecutors' statistics.

Only eight of the men prosecuted by Ms. Pirro were given outright prison sentences by judges, according to records from the district attorney's office. The rest, 93 percent, received some form of probation. "In many cases, we asked for jail time and didn't get it," Ms. Pirro said.

According to Lucian Chalfen, a spokesman for the current Westchester district attorney, Janet DiFiore, who has continued the sting program, 54 people indicted in the operation under Ms. Pirro received only probation, generally of five years. Mr. Chalfen said 46 others received so-called shock probation, which called for weekends behind bars.

Two cases went to trial. Both defendants were convicted, but one conviction was overturned on appeal, and the other will be appealed on similar grounds.

Ms. Pirro said that she wanted more prison sentences for those who were arrested in the stings, in which investigators posed as teenagers in chat rooms and in e-mail exchanges. It was generally the judges handling the cases who decided to give the defendants probation instead, she said.

Asked about the felony charges that were dropped to misdemeanors by her office, Ms. Pirro said that the plea offers were decided "on a case-by-case basis."

Other district attorneys' offices in counties of comparable size, like Nassau, as well as in larger ones, like Manhattan and Brooklyn, that have prosecuted Internet sex crimes involving the same statute that Ms. Pirro's office used — attempting to disseminate indecent material to a minor — seem more resistant to bargaining with defendants.

The Nassau County district attorney, Kathleen Rice, said that of the 40 individuals charged by her office since 2001 for trying to sexually entice minors over the Internet, 34 pleaded guilty to the initial felony charge and only one pleaded to a lesser count, harassment. Of the others, one was found guilty, one died and three cases are pending.

"When we have someone arrested on the top count, my general position is, absolutely no pleas," Ms. Rice said.

Of the 49 people indicted on the felony charge of attempting to disseminate indecent material to a minor in Manhattan between July 1999 and the end of 2005, all but three were convicted on that charge, said Barbara Thompson, a spokeswoman for the Manhattan district attorney, Robert M. Morgenthau.

And Jonah Bruno, a spokesman for Charles J. Hynes, the Brooklyn district attorney, said that his office had used the same statute to indict eight people since the spring of last year, when prosecutors started up a cybersex crimes unit.

Two of the defendants pleaded guilty to the top charges and were required to register as sex offenders, Mr. Bruno said, adding that they received probation. The remaining six cases are still pending, he said.

As for the convictions that resulted in probation under Ms. Pirro, one defendant, who was arrested in a sting in February 2003, and was sentenced to four weekends in jail and five years' probation, was caught again in December 2004 after engaging in sexually explicit online conversations with an investigator posing as a 14-year-old boy. As a result of the second offense, that man, Spencer Davis, a former sixth-grade science teacher and a wrestling coach, was sentenced to up to three years in prison, according to the district attorney's office.

Ms. Pirro's perfect conviction record was broken on July 25 by an appeals court that overturned the conviction in one of the two sting cases that went to trial. In a one-paragraph ruling on the 100th case of the Westchester sting operation, the Appellate Division of State Supreme Court reversed the 2005 conviction of Jeffrey Kozlow, a Manhattan real estate lawyer, because Ms. Pirro's office had failed to show that his Internet communications with an undercover police officer "depicted sexual conduct," since they did not contain visual "sexual images."

The defendant in the other case that went to trial, Paul Wicht, a former earth science teacher at Bronxville High School, intends to appeal his conviction of three counts of attempting to disseminate indecent material to a minor. The appeal is based on the decision in the Kozlow case, his lawyer, Scott L. Fenstermaker, said.

Because 105 people charged during the course of the stings while Ms. Pirro was in office pleaded guilty — either to felonies or misdemeanors — they waived their right to appeal. Four other cases are pending, according to the Westchester prosecutor's office.

During the first three years of Ms. Pirro's cyberspace sex operation, people convicted of attempting to disseminate indecent material to a minor — the main charge brought — did not have to register on a sex offender list because state law did not require people convicted of such crimes to do so.

That changed in March 2002, when that felony was added to the list of sex offenses requiring registration. Anyone who had been convicted of that crime and was on probation — generally five years under Ms. Pirro's stings — or serving a jail sentence at the time of the change had to register.

In a telephone interview, Ms. Pirro expressed alarm at the Kozlow decision. She called it "outrageous and frightening," adding that it added new urgency to the need to protect children from "these deviants" on the Internet.

Ms. Pirro, who has expressed concern about recidivism among pedophiles, said the judges in the sting cases brought by her office were perhaps reluctant to be tougher because most of the men charged in the operation did not have criminal records. "I cannot be prosecutor and judge at the same time. It is the provenance of judges to make the sentences," she said.

Defense lawyers said that in cases like the ones Ms. Pirro brought, it was easier to get defendants who did not have criminal records to plead guilty, in part because they wanted to avoid the publicity of a trial. And the pleas to misdemeanor charges kept Ms. Pirro's conviction rate high.

Bennett L. Gershman, a professor of law at Pace University in Westchester and a former Manhattan assistant district attorney, who is a frequent critic of Ms. Pirro's tactics, said that the lack of prison sentences in her sting cases also reflected the evidence developed in the operation.

"The responses by judges show that they think these cases are not strong enough, that the defendants are not culpable to the extent that they should receive prison terms," Mr. Gershman said. "It seems that the court is looking at these cases more as social nuisances than serious criminal acts."

Among those arrested in Ms. Pirro's sting operation, conducted by her office's high-technology crimes bureau, were teachers, lawyers, a lighting technician for a rock band, an actuary, an auto mechanic, a postal worker, a medical student, a fitness trainer and a mathematician.

"People thought predators were guys in movie theaters or in parks wearing raincoats," Ms. Pirro said. "We showed they are from every economic strata and professional field."

The vast majority of the cases in Ms. Pirro's undercover sting operation involved men exchanging written electronic communications with investigators whom they thought were teenage children, but in some instances the offenders also sent explicit sexual images over the Internet or were found to have pornography on their computers.

For the most part, the arrests in the stings were made when the individuals arrived at prearranged locations thinking that they were going to meet the boys or girls they believed they had been communicating with over the Internet.

In a number of cases, these men had condoms and petroleum jelly with them, and, in some instances, showed up with props like handcuffs and rope. Sometimes, the adults even brought stuffed animals to give to the youngsters.

Ernie Allen, president of the National Center for Missing and Exploited Children, lauded Ms. Pirro for pursuing Internet pedophiles and contended that her job had been made harder because state courts tended to impose more lenient sentences in such cases than federal courts do. "I think what she has done is exactly the kind of aggressive prosecution effort that we need for this problem," Mr. Allen said. "And if you can't get prison time, you are still creating a record, identifying an offender and providing a conviction, so that next time the sentence will be more substantial."

One former federal prosecutor, William I. Aronwald, a White Plains criminal defense lawyer who represented two men who were arrested in the stings, praised Ms. Pirro for being one of the first district attorneys in the state to pursue those kinds of sex cases "full bore."

But he said that she tried to manipulate and overstate the significance of the operation for political gain.

"By constantly harping on the sex sting cases, I think that she was pandering to the bedroom community, hoping people would say that she was a crusader who took all these offenders off the streets," Mr. Aronwald said.

Ms. Pirro dismissed criticism from Mr. Aronwald and others that she had ignored more-important areas of law enforcement.

"We prosecuted and convicted about 100 made members and associates of organized crime for murder, loan-sharking, assault, organized criminal enterprises and gambling," she said. "We prosecuted and convicted more than 200 corrupt officials."