By: Joe Strupp
Gay San Francisco free-lancer’s felony charge dismissed
Veteran journalists and free-speech advocates praised a judge’s decision July 7 to throw out a felony charge against a gay San Francisco free-lance journalist who had been accused of setting up a sexual rendezvous with a teen through the Internet.
The ruling by Judge Rudolph Loncke of the Sacramento (Calif.) Superior Court dismissed the case against Bruce Mirken, 42, who had faced a lone charge called attempted lewd act with a person under 14 years of age.
“This decision is helpful in that it may curb overzealous prosecutors from going after journalists,” says Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. “It’s important because there is a real issue of how much protection news gathering enjoys. If prosecutors want to pursue journalists, they need to have definitive proof.”
Terry Francke, general counsel for the California First Amendment Coalition, echoed Kirtley’s views, saying that a conviction could have set a dangerous precedent for future news research.
“It would be a hazard for journalists if a trend developed that meeting people was criminal,” says Francke. “Journalists need to meet people under any number of circumstances that their mothers wouldn’t approve of.”
The legal problems for Mirken, who has written extensively for gay publications, began last summer when he says he was researching a story about gay youth on the Internet. He says he came across a bulletin board message purportedly from a gay teen seeking to meet an older man.
The message had actually been placed by Sacramento police officers seeking to arrest someone for trying to have sex with a minor. After exchanging e-mail messages, Mirken agreed to meet the person he thought was the gay youth in a Sacramento park with the purpose of interviewing him for his story.
When Mirken appeared at the park last July, police arrested him. He was later released on $100,000 bail and has been out of jail ever since.
During the brief trial, Perry Sims, a deputy district attorney, sought to prove that Mirken was seeking to have sex with a minor by revealing that he was found carrying $96, the same amount that undercover officers had said it would cost for a hotel room. But the judge disagreed, dismissing the case before Mirken’s attorney even presented a defense.
“The meeting, which did not include any touching or attempted physical contact, will not support a conviction for the attempted charge,” Loncke said as he announced his ruling.
Prosecutors had been seeking a felony conviction against Mirken that could have landed him in jail for up to four years. After the dismissal was announced, Mirken showed relief.
“It’s over, I’m free,” he said. “I’m shell-shocked, but I’m still alive.”
Sims criticized the judge’s ruling, saying he should have left the decision up
to a jury.
“I’m extremely disappointed and saddened that this court would take this matter away from the sound judgment of the jury,” Sims told The Associated Press.
Mirken’s attorney, Bruce Nickerson, says the case warranted a dismissal because it lacked evidence and had been brought forward without merit. “The prosecutor ran an ethical case, but it was overzealous,” he says. “The obvious glee in his voice indicated that he had an agenda.”
Nickerson also praised the outcome as a positive move for journalists who may be accused of breaking the law in the future while gathering information.
“It means the police will have to proceed in the future with more evidence,” Nickerson says. “It will not enable them to push back the barrier any further.”
The ruling comes just as an appeals court is preparing to hear arguments in the case of Larry Matthews, a veteran radio reporter who received an 18-month sentence for trafficking in child pornography online. Matthews, who contends he was researching a story about child porn on the Internet, pleaded guilty in a Maryland court last year to two counts, but has appealed the conviction.
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