Last August, Michael Artz was convicted of the two lesser counts in his case stemming from oral copulation with a 16-year-old female student, a year behind him at Davis High, and from his ill-advised attempts to reconnect with her nine months later.
And yet we are still not completely finished, as still the theater of the absurd continues. The DA is attempting to collect a number of computers and thumb drives through forfeiture proceedings.
The DA has the burden in such cases of showing that the property was used in the commission of the crime. But unlike the case where the government seizes a car or other valuable property, we are talking about computers at least five years old, and, in some cases, a good deal more than that.
The computers have no real value except perhaps to Michael Artz’ father who owns them, and for whom there is account and billing information. So why is the DA expending time and energy on keeping them?
In her last duty to the defendant, Defense Attorney Kathryn Druliner filed a notice of appeal. Obviously, Mr. Artz will be out of custody long before the appeal gets heard, but he does face a life-long sexual registration requirement as the result of the third count.
The five-page document lists a number of complaints. First was the failure of Judge Mock to notify defense of his marriage to former Chief Deputy DA Ann Hurd. She writes, “It appears that the trial judge’s wife, who has a different last name from him, may have even filed this grant-funded charging document against defendant. The grant funds are dependent on the success of prosecutions and for the severity of crimes.”
She also cites the refusal of the court “to allow the defense to introduce evidence of the prior sexual relationship between defendant [and the victim]” as well as the refusal of the court to instruct the jury that the victim’s girlfriend was given immunity from prosecution.
She further alleges but does not elaborate on Brady Misconduct and Outrageous Government Misconduct.
She alleges, as we have noted, “Unequal and unfair treatment of parties, court acting as advocate for prosecution during trial including but not limited to: making objections, granting objections without grounds having been stated, limiting closing argument of defense attorney after evening recess when defense attorney had outlined her argument and argued for approximately 1.5 hours.”
She goes on to say, “The prosecutor had previously asked the court if the court intended to impose limits on counsel during arguments and the court said, ‘I never do.’ And then words to the effect of ‘One time, we had to sit here for 10 hours and suffer through the arguments of an attorney …’ “
However, the next morning, “The court told counsel as she was standing at the podium waiting for the jury to enter the courtroom, ‘Counsel you have one hour to finish your closing argument.’ (This belies the fact that the court and counsel had agreed the afternoon before that this was all that was needed).”
During the trial we had noted the treatment the defense had received from Judge Mock, who at various times yelled at her in front of the jury.
Writes Ms. Druliner, “Court treating defense attorney in hostile manner, raising its voice in angry manner in the presence of the jury and not allowing the defense attorney to approach to make its offer of proof.”
Count 3 is one of the more interesting components, as it relates to communication with a minor for the purpose of having sexual contact.
Ms. Druliner argues that there is insufficient evidence with respect to the third count. She cites the fact that Mr. Artz never got closer than 800 feet from the alleged victim’s door and that we do not know that he would have acted upon their discussion.
As Ms. Druliner notes, he “could have changed his mind, abandoned the plan, she could have said no and he, having no weapon or photos, would have had to use physical force at her front door – something that is beyond speculation based on the evidence.”
It should be noted that the idea of the exchange of photos for sex was first proposed by the victim, under the direction of the police, suggesting the possibility of entrapment.
She argues that the statute itself, which was passed by the voters following the highly publicized series on NBC Dateline “To Catch a Predator,” is unconstitutional “on its face” as it “attempts to criminalize communication, not action.”
She also suggests that, even if it is constitutional in narrow applications, “Here, as applied to high school friends who had already had consensual sexual relations, it is overly-broad and seeks to punish speech and thought in violation of the First Amendment as cited in trial briefs.”
Given the acquittal that Mr. Artz received on the main charge of alleged forced oral copulation and the reluctance of the jury to impose the second and third charges given the age difference of the defendant to the alleged victim, the last point may be their strongest road to reversing the conviction, a conviction that will have the most serious impact on Mr. Artz’ future.
—David M. Greenwald reporting