Ruling may threaten online sex stings

PLATTE CITY, Mo. -- A federal judge's decision to override a jury conviction in an Internet sex case has called into question a law enforcement tactic used to nabbing potential child molesters across the country.

A federal jury convicted a 42-year-old lawyer, Jan P. Helder, of using a chat service to solicit sex from someone he believed to be a 14-year-old girl.

But U.S. District Judge Dean Whipple disregarded that conviction, siding with defense arguments that Helder could not be guilty because the person he communicated with online was actually an undercover Platte County detective.

The decision, issued Tuesday, has outraged some children's advocates, motivated lawmakers to pursue changes and worried others that it could curb the success of such Internet stings.

"I think this case will be reversed on appeal," said John La Fond, a law professor at the University of Missouri-Kansas City. "But if this stands, it would prevent effective monitoring of the Internet by law enforcement agencies and put teenagers and youngsters at much greater risk of being sexually abused."

Prosecutors have already filed a motion asking Whipple to reconsider his decision, citing a contradictory ruling he made in a similar case last month. Should he refuse, they plan to appeal.

Bryan Sierra, a Justice Department spokesman, said several Circuit Court cases in the past few years have addressed the defense used and all have rendered it invalid.

"It is our view that this issue was wrongly decided," he said. "We believe the case law is on our side."

Meanwhile, Platte County Prosecutor Eric Zahnd has filed a state charge against Helder, who lives in the Kansas City suburb of Mission Hills, Kan. Zahnd said until the federal case is sorted out, similar Internet sex cases will be pursued in state courts because Missouri law is written in a way that would not accept the defense used by Helder's attorneys.

"The loophole this defendant used to try to escape punishment in federal court does not exist in Missouri," Zahnd said Friday. "We will continue to prosecute child enticement cases at the state level."

Republican Sens. Jim Talent and Kit Bond said Friday they would pursue a change in federal law to eliminate the defense successfully used in Helder's case.

"If there is a hole in the law that needs to be fixed in order to protect our children from predators, we must act now," Bond said.

It's unclear what motivated Whipple's decision. Legal observers say it could range from his own interpretation of the law to a motivation to acquit the defendant because of a distaste for cases seen as entrapment.

David Schwartz, a former prosecutor who now practices criminal law in Brooklyn, said Whipple's ruling was necessary. Schwartz has used the same defense in plea negotiations for similar child enticement cases.

"The government has to prove each and every element of the crime charged," Schwartz said. "As horrible and unacceptable as this conduct is by the defendant, the judge had no other choice but to dismiss the case because the victim was not under the age of 18."

That argument is unacceptable to some advocates for online protection of children.

"Why in the world was he even in a chat room like that anyway, if he wasn't trying to find a child?" said Cyrilla Bender, founder of Independence-based Mothers Outraged at Molesters. "He's an attorney. He's bright."