NEAL CONAN, HOST:
This is TALK OF THE NATION. I'm Neal Conan, in Washington. On Tuesday, jurors in a New York federal court found a former New York City police officer guilty of plotting to kidnap and cook his wife and other women. The defense argued that Gilberto Valle never acted on what were just fantasies - admittedly, very ugly fantasies but just thoughts, not deeds - and that we shouldn't prosecute people for their thoughts.
The government described the so-called cannibal cop as a sexual sadist whose plots against real women crossed the line and became a crime. He faces a maximum sentence of life in prison. Lawyers, we want to hear from you today. Is there a case, in your experience, that falls on one side or the other of that line between thoughts and crime? Give us a call, 800-989-8255; email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.
Later in the program, dictionaries in the digital age. But first, the cannibal cop. Slate columnist Daniel Engber covered the trial, and joins us from our bureau in New York. Nice to have you with us today.
DANIEL ENGBER: Thanks for having me.
CONAN: And the case centered on conversations that Valle had with two other men online; and some scenarios that even the prosecutors labeled as fantasy, but some where they said he crossed the line. What was the difference?
ENGBER: Well, it was actually three co-conspirators online. And when they went through his computer, they found - I think - 24 sets of conversations. As you say, 21 of them, they deemed fantasy. These are explicitly short story creation or chats in which, you know, at one point, one of the people in the chat said hey, is this for real? And Gil Valle said, no, this is a fantasy. No matter what I say, it's all make-believe.
But in those three - the three chats, or sets of chats that were at issue in the trial, he never said that. In fact, there were some moments in those chats where one of the participants would say, hey, are you for real? And Gil Valle would say, yes, he was.
CONAN: And the defense argued, well, saying something's for real is part of playing out the fantasy. But as I understand it - I'm not a lawyer, but as I understand it, at least one of the co-conspirators has to commit what's called an overt act to make something a crime.
ENGBER: Right. So the fact that he said it was for real, that's evidence - or the jury took that as evidence that this was a real conspiracy, something he really meant to do. Then the prosecution needed to show that he actually did something; there was an overt act in furtherance of the conspiracy; and that was the second part of the case against him.
He did a - he traveled to Maryland, to visit one of the alleged intended victims. He sent PBA cards, the police union cards, to a few different women that he'd talked about kidnapping. And he did a whole bunch of Google searches of various methods for abducting women.
CONAN: So that was - yet that sounds a little ominous. But that meeting in Maryland - again, as I understand it - he took his wife and their small child with him.
ENGBER: Yes, it was a trip. So this target of his - you know, of his supposed plot was his college friend. He went to school at the University of Maryland, and he traveled down to Maryland with his wife and baby, and he hung out with his college friends. And among the friends he visited was this woman that he had, around that time, been talking about abducting; taking to a mountain hideaway that didn't really exist, but he talked about it online as if it did; and cooking her over Labor Day on a - roasting her on a spit, with a friend from England.
CONAN: And were there any - was any equipment - without going into detail, was any equipment purchased? Was he preparing to do this, in any way?
ENGBER: No. Well, that's what's at issue here. Certainly, there was no real-world attempt to plan for this - what the defense referred to as a Labor Day cookout, and what the prosecution referred to - well, I don't know if they described it in any specific phrase, but what they would have us believe was a - sort of a killer's getaway.
There was - he never purchased any equipment for making a bonfire. He never - he had looked up recipes for chloroform online; that was a key part of the evidence against him. But he'd never actually acquired any of the chemicals for making chloroform, nor did he ever try to go ahead and purchase chloroform directly.
CONAN: And the defense throughout, argued this was a - I think the phrase they used was "thought prosecution."
ENGBER: Yeah. I mean, it really came down to - I mean, this kind of comes down to two questions: One, did he really mean to carry out these plots? Were they just fantasies? So that was the defense's first argument - this is just a fantasy. And then the second one, I guess even if it really was a plot, did he take any real-world actions? And it sort of comes down to what you think is a real-world action.
CONAN: What do you think convinced the jury?
ENGBER: I think it was - you know, the discussions were just so disturbing, the fantasies. I mean, even in the 21 out of 24 that are established as fantasies, the fantasies are so upsetting, so violent and, you know, hateful that I - it just - it's hard to get past that, I think. And so if you find that so scary and think this is a dangerous, dangerous man, then everything that he did in real life takes on this really ominous, you know, color to it. And this trip to Maryland, which you could see as a visit of old college friends, could seem like a - sort of a recon mission for a murderous kidnapping plot.
CONAN: What is the status of the - I guess still-alleged co-conspirators?
ENGBER: Well, one of his co-conspirators - a young man in New Jersey, named Michael Vanhise - was arrested around the same time as Gilberto Valle. He presumably will be on trial before too long. His co-conspirator in England was a male nurse named Dale Bolinger. He's been arrested within just the last few weeks, really. Police dug up his backyard, apparently searching for bones, for gnawed-on bones or something, but...
CONAN: He had claimed to have eaten many women.
ENGBER: Yes. He presented himself in these chats as kind of a veteran cannibal. He - I mean, those are some of the silliest chats in the whole set. He comes off as kind of an ersatz Hannibal Lecter character. He's talking about his favorite recipes and, you know, a little bit of basil sprinkled on would be delicious, that sort of thing.
CONAN: You're almost to fava beans and a nice Chianti.
ENGBER: Exactly.
CONAN: Yeah. All right, joining us here in Studio 3A is Jeffrey Rosen, professor of law at the George Washington University, legal affairs editor at the New Republic. Good to have you back on the program, Jeffrey.
JEFFREY ROSEN: Good to be here.
CONAN: And does this case - is this thoughts, or is this a crime?
ROSEN: Well, it seems right on the line, which is why it's such a fascinating case. It's very hard to know what to think about this. Daniel's reporting has been exemplary in showing the complexities of the case. And as you've been discussing, conspiracy requires that you have an intent to create - take a conspiracy, that you actually take active steps to join it, and then that you take some overt act in furtherance of it.
ROSEN: And the difficulty is that the overt acts themselves, like Internet searches, are just as compatible with fantasy as with an attempt to carry out a real murder. And what makes it further complicated is the fact that there's these fetish sites - which are so disturbing, so viscerally hard to fathom - appear to be composed of fantasists. Most of the conversations introduced were concededly fantasy; and I don't think there were any examples given of people who participate in these sites, who actually do act out their fantasies. So that's what creates the disturbing - the concern that he might have been convicted for his thoughts.
CONAN: And there's sort of a - as I understand it; I've not visited the website - a disclaimer at the head of the website. It says, essentially, "all in good fun." It's obviously, very disturbing.
ROSEN: The boldface message on the homepage says, "This place is about fantasies only. So play safe." And the defendant says, on his personal profile, "I love to push the envelope but no matter what I say, it's all fantasy." And in a lot of his chats, he kept repeating, it's fantasy. A few times, he said, "this time, I mean it." But of course, that's consistent with fantasy as well.
CONAN: As well. And so therefore - again, you certainly don't want to get into the situation where you have to wait until somebody's actually abducted or killed.
ROSEN: Of course not. And there are all sorts of conspiracies that you'd want to nip in the bud, prosecute in advance. A real murder, obviously, has to be stopped before it's carried out, and a real kidnapping. It's not really the case that the Internet has changed everything, and the fact that this takes place online means that what used to be fantasy is now criminal. It's just the case that the overt acts allegedly offered as furthering the conspiracy themselves could be considered thought crimes - Google searches and so forth. Many of us search for things that we think about, but don't intend to follow through on.
ROSEN: Obviously, there's this broader question of whether it's possible to prosecute purely virtual conduct. And there was a big debate a few years ago, when somebody committed a virtual life - a virtual rape in a virtual reality site and, you know, should that be prosecuted as immoral because it's wrong? The Supreme Court has made pretty clear that you cannot prosecute the possession of virtual child pornography, pictures that appear to be children, but are actually animated...
CONAN: Constructs.
ENGBER: Constructs can't be prosecuted because, the court said, the reasons that we allow the criminalization of the possession of images of real children - which may not actually be obscene - is to deter the abuse of actual children in the production of the photographs. And therefore, to forbid the virtual possession would be essentially, to prosecute a thought crime.
CONAN: And this goes on to cases of terrorism. A group of young men says, well, I'd really like to - maybe we should blow something up. When is it intent, and when is it action?
ENGBER: That's exactly right. And there was a big Supreme Court case not so long ago about whether, you know, giving money to terrorist organizations or expressing support for them - saying, you know, I hope they succeed - can itself be prosecuted. And the Supreme Court held that it could be, over strong objections that this violated the First Amendment.
CONAN: We're talking about, well, a conundrum, what - the questions at the heart of the cannibal cop case: When does fantasy cross the line and become a crime? And as we've learned, it doesn't just involve grotesque pornography. Lawyers, we want to hear from you today. Is there a case in your experience that falls on one side or the other of that line? Give us a call, 800-989-8255; email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.
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CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. We often hear about a conspiracy charge and certain types of criminal cases; conspiracy to commit murder or kidnap, for example. The question is often the same: When does talk about criminal behavior - or in the cannibal cop case, he called it fantasy - when does that cross the line into an actual crime?
A federal jury's answer to that question could put Gilberto Valle in prison for the rest of his life. Lawyers, we want to hear from you today. Is there a case, in your experience, that falls on one side or the other of the line between thought and crime - 800-989-8255; email talk@npr.org. You can also join the conversation on our website. That's at npr.org; click on TALK OF THE NATION.
Our guests are Slate columnist Daniel Engberg; he covered the so-called cannibal cop trial in New York. We've posted a link to his latest story on that case, at npr.org. Also with us, Jeffrey Rosen, professor of law at the George Washington University. He serves as legal affairs editor of the New Republic. Let's get a caller in. This is John(ph), John's on the line with us from Portland.
JOHN: Hello.
CONAN: Hi John.
JOHN: Hello.
CONAN: Is there a case, in your experience, that falls on this line?
JOHN: Yes, I represented a man who had previously been convicted of murder, who was indicted for conspiring with an agent of the prosecution to commit sex crimes against young children. It was entirely a fantasy.
CONAN: Entirely a fantasy, and it sounds like you feel he may have been entrapped as well.
JOHN: Yes.
CONAN: And what's happening in the case?
JOHN: Well, he was - the first jury ended in a hung jury, 6 to 6. And the second jury, comprised solely of women, convicted him on a 10-to-2 verdict, which is legal in Oregon.
CONAN: And where is he now, in prison?
JOHN: He's out.
CONAN: So he served his time?
JOHN: Yes.
CONAN: And what do you think convinced the jury, in your case?
JOHN: Well, the first jury was able to go with me to this netherworld of fantasy, and the men understood it. The all-women jury just could not stomach the things that he, in writing, said he was going to do to these children, and...
CONAN: And did that first jury split on a sexual basis?
JOHN: Yes.
CONAN: Interesting. Did you try an appeal on the basis of the jury?
JOHN: No, the jury was properly selected. The prosecution did not improperly kick women off - or men off the jury.
CONAN: But nevertheless it ended up with something that did not help your client.
JOHN: Oh, he got convicted and sent back to prison.
CONAN: All right, thank you - how often does this come up, in your experience?
JOHN: This is - this type of case is relatively rare, and I think, quite frankly, that in our case it was the government's idea to take out an ad in this sex magazine. And I think what they're doing is that they're casting a net too wide, and they're creating criminals out of people who would be living their sexual fantasies in the privacy of their own bedroom.
And I think it's in some circumstances government-created crime, which we should all be against.
CONAN: Thanks very much for the call, John, appreciate it.
JOHN: Yes.
CONAN: And Jeffrey Rosen, this is, again going to terrorism, this is a charge that defense attorneys will make in those cases, as well, that absent the government informant in a lot of cases, these defendants would not have acted. This is not a defense that's worked.
ROSEN: That's exactly right. But - and we're especially sensitive, though, to entrapment, really, as it were, because that's the idea - that these crimes wouldn't have existed if the government hadn't planted the idea - when it comes to private matters like sexual fantasies. So although the terrorism and sex cases are similar in that they both involve words that are used to convict you of impermissible affiliations, the case in the fantasies is basically, just kidding, you know, essentially didn't really mean to do it.
And you obviously don't want to create a situation where someone can say just kidding after any fantasizing about an illegal act and immunize themselves, but there's something unique to fetishes that do involve pure fantasy, and that's why it's so tough.
CONAN: Daniel Engber, I wanted to ask you, one of the aspects of this case in New York was that the defendant's wife was one of the alleged victims and in fact provided critical evidence against him.
ENGBER: Sure, yes, and her testimony was quite dramatic. She burst into tears on the witness stand. She's the one that uncovered his fantasy chats and turned them over to the FBI when she fled to Nevada with their baby.
CONAN: And so she had provided the FBI with their - the password so they could get into the computer. The husband and wife shared the password. And his online chats were available as evidence because they were not communications with her. Had they been communications with her, they would have been excluded.
ENGBER: Exactly. Her testimony was a little bit complicated because she was unable to say anything that he had said directly to her. That was sort of a tantalizing and mysterious aspect of the trial. She alluded to something that was going on in the basement of their building. The defense objected. We didn't get to hear what that was.
CONAN: So there may have been more; we just don't know.
ENGBER: Right.
CONAN: Here's an email from Michael(ph): How do our online searches become evidence, and when we browse online as private, does this actually mean private, or do companies like Google still track your Web history, therefore ending up in court cases such as these? Jeffrey?
ROSEN: Well, Google and Facebook are required to respond to valid subpoenas. And a subpoena can be issued with nothing more than reasonable suspicion that the evidence is relevant to a legitimate investigation. So if you're suspected of...
CONAN: It has to be issued by a judge.
ROSEN: It has to be issued by a judge. So Google won't turn over the information, they say, without the subpoena, but with the subpoena, they're not allowed to resist unless they think it's overly broad. Some companies like Twitter have a policy of trying to resist subpoenas more vigorously. Others are said to be less concerned about the expressive dimensions. But basically, the law requires Google to turn the evidence over.
Another way that the evidence can come in is if the police come upon it in the course of another search. And there was an incredibly important, really one of the most important computer search cases involving pornography decided just last week, by the U.S. Court of Appeals for the Ninth Circuit. And that was a case where a guy showed - set off an alert when he was crossing the Mexican border because he had been convicted of a sex offense before.
And that, combined with the fact that he was going to Mexico, which is supposed to be a place where people do sex trafficking, led the border agents to take his computer, open it up, then take it 180 miles away from the border and do a forensic search of it for five days, and they found, in fact, he did have a huge amount of child pornography.
And the Ninth Circuit basically said, you can't do broad computer searches without some degree of reasonable suspicion that someone is guilty of a crime to begin with. That was - that's a watershed holding, because other courts have said you can open up a computer and look at everything even without reasonable suspicion.
Then there was a dispute about whether the fact that he had this previous sex conviction and was going to Mexico was enough to create reasonable suspicion. But that's a case where, you know, if in the course of a valid border search the agents do find child pornography, which happens surprisingly frequently, you see it's disturbing, you can certainly be prosecuted on that basis.
CONAN: Let's go next to Xion(ph), Xion with us from New York. Hello, Xion, are you there?
XION: Yes, sir, I am.
CONAN: You're on the air. Go ahead, please.
XION: Hi, I do want to tell a quick story. I'm in the military, and when I was a company commander, we had (unintelligible) who was disgruntled with his first-line supervisor. And I'm not sure if that's why he did it, but he had story after story of fantasies of him murdering her and doing all kinds of sexually explicit things. She was very disturbed by it.
Unfortunately, you know, being the commander, I was caught in between exactly what to do, because he didn't actually do anything, but the story was just so disturbing that we had to do something. So we ended up going forward with administrative punishment, moving him from under her leadership, as well as recommending him or mandating that he go receive psychological evaluation.
But it's kind of one of those - you're caught in between exactly what you can do, because he didn't really do anything officially yet, but I wish I had more help back then.
CONAN: Yeah, there was no overt act is what you're saying.
XION: Yes, sir, there was none.
CONAN: And is this one of those things that keeps you up at night?
XION: It does, it does. I mean, obviously, well, as of right now, everybody's still OK, but who knows if he really was thinking about it or how far he went with thinking about it. Because it was more than one story, short story, handwritten. So he put a lot of effort and time into it.
CONAN: And again, it's - administrative action, in a military sense, not insignificant. This is - could destroy somebody's career.
XION: Yes, yes sir, it could.
CONAN: All right, Gilbert Valle of course faces life in prison. There's a big distinction. But according to the federal court, anyway, he did take an overt act. Xion, thank you very much for the call.
XION: Thank you.
CONAN: And let's see if we can go next to - this is Steven(ph), Steven with us from Grand Forks in North Dakota.
STEVEN: Yes, hello, sir.
CONAN: Hi, go ahead, please.
STEVEN: I represented - I was part of a team that represented Tarek Mehanna from Boston, and he was recently convicted of providing material support to al-Qaida and conspiracy to provide material support. And what we felt - we had to convince the jury that a lot of his speech that seemed to be pro-jihad, didn't actually mean that he wanted to sort of become a terrorist.
CONAN: And what was he alleged to have been planning?
STEVEN: Well, he translated religious texts that were publicly available online from Arabic to English, and the government tried to fashion an intent to kill service people abroad, in part.
CONAN: Jeffrey, you were saying?
ROSEN: Just struck by how difficult it is to prove really the central question of imminence, which is at the heart both of the Valle case and the case that you're describing. So the cornerstone of the American free speech tradition says that speech cannot be banned unless it's likely to produce imminent lawless action. Unlike Europe which allows the banning of hate speech, really, because it offends the dignity of a group, you have to prove that someone both intends to and is likely to have the effect of stirring up a crowd and actually leading others to kill. So that's what makes conspiracy of terrorism cases so hard, is simply expressing support for an organization likely to lead to imminent violent action, and it's very hard to prove in many cases.
CONAN: Steven, did the federal government prove it in this case?
STEVEN: Well, they did. He was convicted, and I would say that one provision of material support that the government proved was the actual translation of those religious texts. So you have the sort of conflict between conspiracy law and First Amendment rights is - was on display in that case and was on display in a lot of historical First Amendment cases that Professor Rosen, I'm sure, is familiar with.
CONAN: Well, let me ask Daniel Engberger(ph) - Engber - excuse me - the - how did the prosecution get around the First Amendment in the cannibal cop case?
ENGBER: Well, the - in the government's closing statement, they said this is yelling fire in a crowded theater times 1,000, or 1,000 steps beyond that. So there was the argument that this was, you know, the speech was dangerous, I think. And beyond that, they had these examples of things he'd done in real life. And as Jeffrey has said, this question of our Internet searches are - is that speech, or is that action? And I think that was really central to what was going on in the trial. There were some examples given in the evidence of things that both Valle and his wife had typed into Google that were just clearly typing in what they were thinking without even intending to look for anything.
His wife typed in to Google, my husband doesn't love me anymore. I had trouble believing that she was actually searching for something in particular, and Valle himself typed similar things in. I think that, sort of, goes to show that we sort of use Google as an extension of our brains, and a lot of it gets typed in there, they're just thoughts passing from head to fingers. But these, you know, I'm curious - does - is that speech or is that action when you're searching for things online? Then, of course, there were the genuine actions he took, driving to Maryland.
CONAN: Is that speech? Is that action, Jeffrey?
ROSEN: Well...
CONAN: If he went to a bookstore, would it be different?
ROSEN: It's core speech. If - it's like going to a bookstore and browsing. And the right to read anonymously is at the heart of freedom of thought, and our ability to decide how many of our thoughts, sensation and emotions are communicated to others, according to my hero Justice Brandeis was at the core of both the right to privacy and the First Amendment. On the other hand, you can also use a Google search to find the murder weapons, and that's why this is right at the core of both of these things.
You know, interestingly, Google itself claims that its search algorithm is speech, and has used that claim to resist efforts to regulate it by, for example, the Federal Trade Commission against potential anti-trust violations. So Google thinks that the algorithm itself and how it ranks search results is at the core of what the First Amendment protects, including people who use that to do First Amendment-protected activity too.
CONAN: Steven, thanks very much for the call.
STEVEN: Thank you.
CONAN: We're talking about the line between thought and crime. You're listening to TALK OF THE NATION from NPR News. And let me reintroduce our guests. Daniel Engber is a Slate columnist who covered the so-called cannibal cop trial in New York, where Gilberto Valle was convicted earlier this week of conspiracy and also using his police officer's computer to search for - for misusing his equipment to search for victims. Also with us, Jeffrey Rosen, a professor of law at The George Washington University and legal affairs editor of the New Republic. And, Daniel Engber, the defense in this case, said this is an important case not just for Mr. Valle, but for all of us.
ENGBER: Yeah. They really appealed to the jury to defend the right to have fantasies. I thought that case was made more compellingly by the government at the end of the government's closing statement, the assistant U.S. attorney said - described some of Gilberto Valle's fantasies and said, you know, these fantasies are not OK. And I found that very disturbing, sitting there in the courtroom, to hear a representative of the U.S. government announcing which fantasies are OK and which ones aren't.
CONAN: And that, Jeffrey Rosen, not just in this case, sexual cases, but in terrorism cases as well, other kinds of conspiracy cases, this is right on the edge.
ROSEN: It's true. It's very hard to criminalize fetishistic fantasies, and it raises deep First Amendment issues. And it's interesting that the times when Congress has tried to criminalize fantasy and fetish overtly, it's run into First Amendment problems. I think of the federal law banning crush videos, which is a terrible fetish of people who likes seeing animals being crushed and tortured.
CONAN: By women in high heels.
ROSEN: Exactly so. And the Supreme Court struck that law down under the First Amendment, on the grounds that it will be possible to download a hunting video in one state where hunting was legal, just to film it and say where hunting was legal and to download it in a state where hunting was illegal, and the act of shooting the animal could meet the federal definition, and therefore it violated the First Amendment.
CONAN: What that's saying was excessively broad. It did say it can be prosecuted as animal cruelty.
ROSEN: That's exactly right. But what it couldn't - what couldn't be - really, what we're talking about is, is it OK to ban certain thoughts as immoral? Because that was the animus - the impetus behind the fetish bill and also behind, I think, Daniel was saying, the jurors who may have been swayed here. That they just thought that no decent person should be allowed to think like that. And in order to ban that, consistently, with the First Amendment, you have to come up with a non-thought related reason, like, for example, animal cruelty or, in this case, murder, in order to forbid it.
CONAN: Interesting. And we'll see if this case goes to appeal. Daniel Engber, do we know if it's going to be appealed?
ENGBER: Well, that's what Valle's family and the lawyers had said.
CONAN: All right. We'll await that outcome and see what happens there. Thank you very much for your time, Daniel.
ENGBER: Thanks very much.
CONAN: Again, Slate columnist, Daniel Engber, and you can find a link to his most recent column on the cannibal cop case at npr.org. Just click on TALK OF THE NATION. Jeffrey Rosen, as always, thank you.
ROSEN: Thank you.
CONAN: Jeffrey Rosen, professor of law at the George Washington University, legal affairs editors at The New Republic, with us here in Studio 3A. Up next, what happens when news becomes a vocabulary event? Sequester, malarkey, what's the word you look out after a major news event? 800-989-8255. Stay with us. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.