JUDGE KELLY CASE QUASHES STING INDICTMENT

A Montgomery County district court judge on Wednesday granted a defense motion to quash the online solicitation of a minor indictment against Michael Burl Massingill, due to a lack of specificity in the charging document.

Massingill’s defense team, led by Gilbert Garcia, criticized the practices of the local Internet Crimes Against Children Task Force as a “bait-and-switch” tactic and moved to have statements and evidence suppressed along with the quash of the indictment.

Judge Kelly Case delayed his ruling on the motion to suppress evidence, saying he would do further research on the issue.

But Judge Case quashed the indictment on the defense attorneys’ argument that the Montgomery County District Attorney’s Office could not use two definitions of the term “minor” in its Sept. 9 indictment against Massingill.

The DA’s Office will likely try to re-indict the case, but lead prosecutor Cindy Pulcher was adamant with the judge of wanting a jury to have the option of considering both definitions – that Massingill either allegedly solicited someone who represented themselves to be a minor, or someone he believed to be a minor.

Pulcher argued the definition of “minor” was evidentiary, but Case gave the option of either choosing a definition, or having the indictment quashed.

“I don’t understand how I have to make an election without any of the evidence being put in,” Pulcher said. “I’m allowed to go with either one. I don’t have to elect which definition for them to choose because they can choose either one and convict.”

As for the evidence, Garcia contends the ICAC unit committed theft and a breach of computer security by placing an ad on Craig’s List against the advertising website’s terms of conditions, which prohibits misrepresentation.

Investigators with the Precinct 4 Constable’s Office, which was added to the ICAC unit in 2013, were called to testify on the process of catching an alleged predator for online solicitation of a minor.

Investigator Cory Arnold, who is listed as the child in the indictment, placed a Craig’s List ad stipulating he was an adult woman seeking casual sex with a man.

Arnold testified to receiving at least 100 responses, but that 95 percent disengaged after he claimed to be a 15-year-old girl.

Massingill is alleged to have responded in a graphic sexual nature, agreeable to the risk of meeting up with a minor for sex.

But Garcia argues the investigator used the advertising website without a license, since Arnold is a 36-year-old man who in fact was not seeking casual sex, as opposed to a 15-year-old girl who was.

“This is (using) server’s website and content without authorization,” Garcia said. “The problem that the state has in this case is that you only get to use Craig’s List if you’re telling the truth. They lied. And not just on a couple of occasions. Cory Arnold lied somewhere between 10 and 15 times just on the (advertisement) posting. Therefore, they were not allowed to access Craig’s List. They had no license.”

Pulcher had multiple objections to Garcia admitting the Craig’s List terms of conditions into evidence, saying it was out of the scope of the motion to suppress.

Judge Case overruled most of the objections, allowing the evidence and subsequent testimony from Arnold.

This is one of two recent cases in which the DA’ Office moved for the judge’s recusal, citing his “impartiality.” The other is the Adrian Peterson injury to a child case.

But two days after the recusal motion in Peterson’s case was denied last week, the DA’s Office on Friday withdrew its recusal motion in the Massingill case.

This is also the subject of the fifth mandamus filed by the DA’s Office against the judge, who recently withdrew a discovery order request by Garcia to produce all documents produced by ICAC.

The mandamus sought to prevent the implementation of the discovery order, citing its “overbroad attempt to turn over every investigation and investigative technique used by the ICAC task force.”

Garcia specified in court Wednesday that he had been seeking the financial records and contracts of ICAC.

“I think after today’s testimony, the court can see how it could be relevant to know what the incentive and the funding agreement is with regard to this ICAC task force,” Garcia said.

Judge Case and Garcia are both well-known political adversaries of District Attorney Brett Ligon and his office.

Garcia lost the May 2012 election for the head DA’s Office position, while the clashes with Judge Case are well-documented through mandamus rulings and recusal motions.