The assumption is that the more horrible the crime, the less likely a judge is to apply the law neutrally and fairly. After all, the defendant was awful, and nobody likes really awful people. In the scheme of horribles, cooking and eating women is right up there.
Yet, SDNY Judge Paul Gardephe did exactly what he was sworn to do, pushing aside the disgusting nature of the allegations and focusing instead on the law and facts. While those who are inclined to agree with his ruling, granting the defense’s Rule 29 motion and dismissing the count of conspiracy to commit kidnapping, you may not appreciate how bold Judge Gardephe was in doing so. The pressure to deny the motion, when it’s the cannibal cop, must have been unbearable, and yet the judge performed his duty.
The memorandum decision is long, at 118 pages, reflecting the seriousness of the case and the response such a controversial ruling would naturally evoke. In what appears to be an “executive summary,” Judge Gardephe kindly explains up front his basic conclusions, with the legal argle bargle to follow. The New York Times sums it up.
The judge, in a decision released late Monday night, concluded that Mr. Valle’s Internet plotting had been “fantasy role play” and was not evidence of an actual crime.
“This is a conspiracy that existed solely in cyberspace,” the judge, Paul G. Gardephe of Federal District Court, said in a 118-page opinion that granted a judgment of acquittal to Mr. Valle, a former New York City police officer who had faced a potential life sentence for his conviction.
“The highly unusual facts of this case reflect the Internet age in which we live,” Judge Gardephe added.
What makes this particularly curious is that conspiracy is, by its definition, a “thought” crime, where an “agreement” between two or more people to engage in criminal conduct is a separate crime itself. In proving an “agreement” for the purpose of proving a conspiracy, there is no requirement that the words “we agree to do this” need be uttered or shown; proof of the agreement is inferred from whatever words are available.
The key to a conspiracy, except a drug conspiracy,* is that there must be an overt act, a concrete step in furtherance of the commission of the offense that is the subject of the conspiracy. In this case, the government argued that the overt act was there:
At trial, prosecutors argued that Mr. Valle took “concrete steps” to further the kidnapping plot, including illegally looking up potential victims in a law enforcement database, carrying out surveillance of them and using the Internet to research ways to abduct, subdue and cook potential victims.
“He left the world of fantasy; he entered the world of reality,” a prosecutor, Hadassa Waxman, said in her closing argument.
These “concrete steps” are, well, definitely steps. Another judge, another defendant (bearing in mind that Valle was a police officer), another district, and they may have been close enough to leave the call in the jury’s hands. Or, they may have just been more non-steps, a fantasy played from a distance that never came close enough to real to suffice as an act in furtherance of the crime, just the fantasy.
Once the lies and the fantastical elements are stripped away, what is left are deeply disturbing misogynistic chats and emails written by an individual obsessed with imagining women he knows suffering horrific sex-related pain, terror, and degradation. Despite the highly disturbing nature of Valle’s deviant and depraved sexual interests, his chats and emails about these interests are not sufficient – standing alone – to make out the elements of conspiracy to commit kidnapping. There must be evidence that Valle actually intended to act on these interests with an alleged co-conspirator.
It may have been key to the court’s view that within the bizarre online fantasy chats, there were dates of when they would do things, when kidnappings would happen and women cooked. The dates came and went, without anything happening, and no one questioned why. This was powerful evidence that the defendant and his online sickos were nothing more than pathetic disgusting nuts who never meant to do more than bolster each other’s sick fantasies.
That’s what makes the internet special. No matter how sick and disgusting a person’s worst thoughts, he can find others just as warped to share them and know that he’s not alone. Great.
Back when Valle was convicted in 2013, the United States Attorney for the Southern District of New York, Preet Bharara, had his say:
“The Internet is a forum for the free exchange of ideas, but it does not confer immunity for plotting crimes and taking steps to carry out those crimes,” said U.S. attorney Preet Bharara in March 2013 after a jury convicted Mr. Valle of all charges against him.
There were few prepared to challenge that conclusion at the time, as cannibal cops don’t have many friends, aside from his federal defenders, with lead counsel Julia Gatto, and a handful of sick guys on the internet. After the grant of the motion, it was Gatto’s turn to speak:
“He is guilty of nothing more than very unconventional thoughts,” she said, “but as Judge Gardephe has validated, we don’t put people in jail for their thoughts. We’re not the thought police, and the court system is not the deputies of the thought police.”
No one at Bharara’s office had anything to say, though it’s fairly easy to imagine what they thought.
There will, no doubt, be an appeal, even as Valle was released. Whether the Second Circuit will be as bold as Judge Gardephe, as capable of seeing beyond the disgusting thoughts that the prosecution used throughout the trial to smear the defendant and make certain caused the jury to despise him, remains to be seen.
But in this age of the internet, where sick fantasies are shared and expressed by people who used to hold them in the deep recesses of their mind where no one would ever know, the turf is ripe for the thought police in ways it never was before. This is the opportunity to distinguish between real crime and repulsive thoughts.
* In drug conspiracy, there is no requirement of an overt act. Thought alone, without more, is legally sufficient to prove a drug conspiracy.