Published 1, December 7, 2012 by  JONATHAN TURLEY

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There is an interesting ruling out of Mobile, Alabama where former child sex crimes prosecutor, Steve Giardini, was charged with solicitation of a minor over the computer. Special Judge Gaines McCorquodale dismissed the charge on a key missing element under the statute: an actual victim. Since Giardini was speaking with an undercover officer posing as a 15-year-old girl, McCorquodale ruled that there was no victim as required under the language of the statute for child enticement. Essentially, no child, no enticement, no charge.

According to the FBI agent, the agent assumed the identity of a teenage girl named Daphne. The agent said in the affidavit Giardini said that he wanted to meet the girl and that the two discussed the importance of not getting caught by her mother. This included conversations over the phone with the agent using a voice changing technology. The agent said that Giardini asked the girl if she had ever had sex and invited her to use the swimming pool and hot tub at his home and that they could go to the beach at Perdido Key in Florida. The agent also said that Giardini asked her to take off her clothes and masturbate so that he could hear as well as asking her to take a topless photo once her mother was gone.

Giardini had already been tried on the charges, which resulted in a hung jury. The split was not particularly close — 7-5.

McCorquodale noted that “[t]he issue becomes whether or not that statute can be applicable to an undercover agent purporting to be a fifteen (15) year old female child.” A state appellate court had previously dismissed a case based on the same problem and the judge followed the same reasoning. He also dismissed a related charge of solicitation of obscene matter of a child on the same grounds. He found that “the state is faced with the issue that there is no actual victim in the case. As a result, there was no actual production of any photograph or attempted production of any photograph of breast nudity of a child under the age of sixteen (16). That evidence is undisputed here.”

Giardini was a 20-year veteran who was prosecuting child sex offenses when he was nabbed in the sting operation. He was accused of having an almost four-month-long correspondence with the “child”. He resigned after the FBI searched his home.

The question is whether Giardini will now be charged by federal prosecutors. Like other areas, Congress has created dual state-federal crimes for online solicitation. Many civil libertarians have objected in the past that acquittals in state court are followed by basically the same charge in federal courts. Yet, federal courts have refused to enforce double jeopardy protections in such cases.

This would be a bit different since, while tried earlier to a hung jury, Giardini secured dismissal on a legal question.

Giardini’s lawyer argues that the ex-prosecutor had long conversations with many other counterparts, mostly adults. He insists that a request for a topless photo was unclear — an argument supported by the earlier hung jury. Yet, it is not clear, if the agent is telling the truth, how many adults were asked to avoid their mothers and discuss whether they were virgins.

The question is now whether such allegations should strip Giardini of his bar license even without federal charges. If the agent’s affidavit is to be believed, Giardini encouraged a 15-year-old girl to avoid her mother, take topless photos, and visit him without parental consent. If the bar believes the allegations, I would find it hard to be convinced that he could serve as an attorney and officer of the court.