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CA$E THROWS OUT INDICTMENT

Paquette, Daniel

Judge Kelly Case, of the 9th District Court of Montgomery County, made what is arguably his most controversial ruling to date on Wednesday, dismissing the indictment against an accused child predator based on the defense attorney’s contention the statute violated his client’s right to free speech. As word of the decision spread, outrage grew and will likely continue growing, since the ruling’s effects may be far reaching.

Attorney Steve Jackson requested a Writ of Habeas Corpus hearing in the case of 35-year-old Kingwood resident Daniel Paquette, who was charged with Online Solicitation of a Minor. In the end, Case agreed with Jackson, declaring the state’s entire “Online Solicitation of a Minor” statute violates the First Amendment. A written statement from the Montgomery County District Attorney’s Office said the law “essentially prohibits a person from using the internet or other electronic communications in an effort to arrange to meet with a minor child for sex,” and “forms the basis of a large portion of the work that the county’s Internet Crimes Against Children task force has been so effectively using to target child predators in the Montgomery County area.”

Members of the Montgomery County Internet Crimes Against Children (ICAC) Task Force arrested Paquette May 4, 2014 after he allegedly arranged to meet what he believed to be a 14-year-old girl with whom he communicated online and agreed to pay for sexual intercourse, and went to the prearranged location with cash and a condom. A Montgomery County grand jury handed down an indictment against Paquette in November.

Following Case’s ruling, Jackson elaborated on the motion, reiterating his contention the statute was “ambiguous” and “unconstitutional”, saying legislators had agreed, and a new statute will take its place September 1. Jackson offered the hypothetical example of a man and his wife, or adult sex partner engaging in online “sexplay” involving the female pretending to be a 13-year-old girl as the couple discusses having sex when the husband arrives home. Under the current law, Jackson said the husband in that scenario could be prosecuted for Online Solicitation of a Minor, just like Paquette, despite the fact that the man knew the person he was messaging was a consenting adult.

However, Montgomery County First Assistant District Attorney Phil Grant said there have been no ICAC arrests and prosecutions based solely on dialogue, and that was not the basis of Paquette’s arrest. Grant said it was about Paquette’s intent, which his actions showed to be meeting a minor for sex. He also indicated Mr. Jackson had been creative with the facts regarding the statute and its constitutionality.

“Mr. Jackson is discussing a two year old ruling by the Court of Criminal Appeals that found one section of this statute to be unconstitutional,” Grant said. “That section had nothing to do with the act that Mr. Paquette was charged with.”

“Mr. Paquette is charged with luring a person he thought was a child into an illegal sexual encounter,” he said. “The case law clearly states that is constitutional.”

According to Grant, the courts struck down only the section of the statute that involved discussions with no intent to meet, thereby protecting the free speech of those who were simply involved in fantasy discussions. The statute’s original intent was not changed, only the language.

“The courts and the legislature have never said that attempting to lure a child into an illegal sexual encounter is okay,” Grant said. “Mr. Bennett and Mr. Jackson used the old magician’s trick of misdirection by talking about a section of the law that didn’t apply to Mr. Paquette, and unfortunately Judge Case fell for it.”

Indeed, State Representative Debbie Riddle, R-Tomball said the change taking effect September 1 is basically the same law, with the same intent, but has merely been “tweaked a little, for clarification.” She too scoffed at the notion the law was so flawed or vague its use would violate someone’s constitutional rights.

“You know, you can’t hardly find a diamond that doesn’t look a little better with a little bit of polishing on it, so I think this last session we tightened it up a little,” Riddle said. “The intent was clear from the beginning, so that intent is not ambiguous.”

Riddle, like Grant, said “intent” was a critical part of the statute. As a grandmother of 10, she feels strongly about such legislation, she said.

“It is incumbent upon all of us, especially the legislators, the lawmakers,” Riddle said. “That’s got to be our number one focus, our number one job, and that is to make sure the safety and security of all Texans is well established – especially our children.”

In the courtroom, prosecutors cited multiple similar cases that have been tried since the ruling Jackson cited, with the courts in those cases finding the portions of the statute that are the basis for the charge are not speech related, as in Jackson’s stated scenario involving consenting adults. Rather, they require the suspect intentionally attempt to lure a minor child to engage in sex.

In fact, Grant said, the procedures used by Montgomery County ICAC investigators are specifically designed to “weed out” those who are merely engaging in “twisted sex talk.”

“Arrests are made only when adults get in their car and drive to a location to meet the minor child,” Grant said. “The defendants we arrest have made proactive efforts to find and molest children.”

Prosecutors are appealing Case’s decision and have no plans to back down on that or any of the other pending Online Solicitation cases, they said.

“Judge Case’s rulings continue to place the children of Montgomery County in danger,” Grant said.

 

RESPONSE BY 1ST ASST. DISTRICT  ATTORNEY PHIL GRANT

 

RESPONSE FROM DEFENSE ATTORNEY STEPHEN JACKSON

 

RESPONSE FROM STATE REPRESENTATIVE DISTRICT 150

DEBBIE RIDDLE

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