Bill:

So, you file a motion to dismiss for entrapment in Orange County for travelling a meet a minor cases?

Gary:

Yes, we have done that.

Bill:

And you would file the motion to dismiss for entrapment in Polk County for these type of cases? You file them in all the counties?

Gary:

Yes. In every case, unless we're able to reach a resolution quickly and easily, we will be filing motions to dismiss for entrapment.

Bill:

How could you file a motion in every case until you actually review the case; isn't that filing frivolous motions? How would you determine whether that motion is legitimate in every case? Why would you file that in every case?

Gary:

That's the excellent question. But the reason it's relevant in every case is because the police are running these stings. They are initiating the crime. So, the specter of entrapment is, they are in every single one of these cases.

Bill:

And you're filling a motion to dismiss for objective entrapment?

Gary:

We are, and then we're also filing a motion to dismiss the subjective entrapment.

Bill:

Does a judge or jury decide on a subjective entrapment defense?

Gary:

When you file a motion to dismiss and it goes to the judge, the judge can kick it out if he finds that there is subjective entrapment, but there is an "out" in the statute of the judge deciding if he wants to make the call. He can leave it up for the jury. That's actually the judge's decision, and that's valid. If he wants to leave it as a jury question, he's allowed to do that.

Bill:

Would most judges do that, because they don't want to end up on the popular conservative show, or do they actually routinely grant those motions?

Gary:

It does happen. Quite frequently, they decide to refer the issue for juries. It's happened that these motions have been granted and the case is over too.

Bill:

You've had a motion to dismiss for objective entrapment granted by a judge?

Gary:

Candidly no; only the subjective entrapment argument has resulted in dismissal from the judge.

Bill:

So you had subjective entrapment motion dismiss the crime by a judge. That must be tough with the overwhelming publicity. What happens if the judge doesn't grant a motion to dismiss for entrapment? What happens to the client's case if he doesn't accept the plea; can he erase that entrapment issue at trial?

Gary:

Yes, you can always raise that - it's what's called affirmative defense. If you go all the way to the jury trial you have the right to raise that issue, but then it's your burden. Typically the burden is on the State to prove the defendant guilty of the crime he's charge beyond the reasonable doubt. When you're raising affirmative defense, it's your job to prove that entrapment exists.

Bill:

The risk with that kind of defense is that you actually have to admit guilt to the crime and then say essentially the police made me do it?

Gary:

That's exactly right. Affirmative defense is basically a "yes" but in defense.

Bill:

So, in a nut shell, if the judge doesn't grant a motion you can raise affirmative defense of entrapment. How does a defendant go about establishing an affirmative defense of entrapment to a soliciting to meet a minor, or travelling to meet a minor case? What would that look like?

Gary:

Well, with regards to subjective entrapment, basically it has to show on the face of the transcript that you didn't jump in with both feet right away. And then I took some talking by law enforcement, some factors that are relevant, or if the conversation is taking place over several days and you express reluctance and you're being pushed by the law enforcement, or even the conversation takes place over several days. And law enforcement kept coming back at you. There would be factors that would be favorable to a subjective entrapment argument.

Continue to Part 14 >>

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