A former California Highway Patrol (CHP) lieutenant—who made internet contact with a 13-year-old girl and, among other things, told her he sought to feel her without wearing a condom and wanted to get her pregnant—hopes an Orange County jury believes he did not plan to engage in lewd contact when caught during a rendezvous.
In his Dec. 11 opening statement, defense attorney John Barnett conceded that his client, Stephen Robert Deck, unwittingly sent “dirty talk,” “sexually charged” and “very unpleasant” text and chatroom messages to a police decoy during a six-day period in February 2006 but insists the defendant had innocent motives when he drove an hour after sunset from his San Diego County home to Laguna Beach.
“[Deck] didn’t intend to have sex with that girl that night,” Barnett told a rapt jury of seven men and five women. “[When he was arrested,] he does talk to the police, and he tells them, ‘You have an intent problem,’ and he’s right.”
Deputy District Attorney Robert Mestman must have felt déjà vu. In 2009, Mestman battled the same argument and won a conviction against Deck, who was given a punishment of less than a year in jail and probation because the judge, M. Marc Kelly, said cops should receive leniency when they break the law. The California Court of Appeal upheld the conviction two years later.
But in 2014, a divided three-judge panel at U.S. Court of Appeals for the Ninth Circuit overturned the case. Judges Sidney R. Thomas and Morgan Christen opined that Mestman botched his closing argument by telling the jury the defendant didn’t necessarily need to intend sexual contact on the night of the arrest as long as he planned an attempted lewd act on the child “at just some point in the future.”
The dissenting judge, Milan D. Smith Jr., believed the panel should have accepted the decision of the state appellate court, which had considered the defense argument and determined the prosecutor’s error was harmless. Smith also noted that regardless of Mestman’s mistake, the trial judge properly instructed the jury on the law.
“[Deck] had sexual intent when he drove up to Laguna Beach,” Mestman told the new jury in his opening statement. “I am confident you will find he attempted a lewd act.”
According to the prosecutor, Deck—a boss at the CHP office in San Juan Capistrano during the alleged crime—fretted online with “Amy,” the purported minor, that he didn’t want to be caught having sex with her because he’d go “to prison with some huge guy named Bubba sharing his cell.” The cop also worried in chats about Perverted Justice, the nonprofit group popularized nationally by NBC’s To Catch a Predator series hosted by Chris Hansen. At the time, he was unaware of Amy’s real identity: Carolyn Graham, a Mississippi native with a heavy twang who worked for Perverted Justice, helped creat fake photo and identity profiles of minor boys and girls, and waited for adults to make contact.
During chats, Graham repeatedly told Deck she was of middle-school age and the then-51-year-old officer, who pretended he was 47, responded by ridiculing laws banning sex between adults and minors, asking her when her parents weren’t home and prodding for her interest in performing oral sex as well as her willingness to call him “Daddy.”
Mestman says the cop, who was well aware of police-sting tactics, “set up” a potential defense “just in case” he’d been snared in a Perverted Justice operation by making statements to the decoy that he wasn’t interested in sex shortly before he drove to meet her. The move was nothing more than “planting the seed” for an intent defense, the prosecutor argued. “He [was] so sexually charged.”
But Barnett, one of Southern California’s legendary defense lawyers who specializes in representing accused corrupt police officers, told jurors that his client didn’t plan for sex on the night of the meeting because he had a sore throat. “The last words he typed before heading out the door [to drive to Laguna Beach from Oceanside] were ‘[I’m sick, so] no kissing and no hugs,’” said Barnett, who claims the motive for the trip was to gage compatibly in person. “He specifically tells her, ‘We’re not having any sexual contact.’”
Mestman called Graham as his first witness and let the jury hear recordings of calls between Deck and a separate Perverted Justice decoy, who sounded like a giddy 10-year-old. In response to her question about what he planned to do with her, the CHP officer said he wanted to go out to dinners, movies “and places where you aren’t going to see any of your friends.” She followed up, asking if they’d “do boyfriend/girlfriend stuff?” He replied, “Absolutely.”
It’s a unique courtroom battle, not just because the case is 668 weeks old. Barnett, who represented a CHP cop who beat an unarmed Rodney King in the infamous 1991 Los Angeles incident, is fighting Mestman, a lesser known but skillful deputy DA. More to the point, if this jury finds Deck guilty, he won’t face a minute of prison. He’ll only be required to continue sex-offender registration.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; earned six dozen other reporting awards; and been hailed by two New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.