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Law questioned as child sex case is dropped

California prosecutors drop charges against an alleged Internet child sex predator on the eve of trial, citing a "lack of sufficient evidence."

California prosecutors today dropped charges against an alleged Internet child sex predator on the eve of a preliminary hearing to clear the way for trial, citing a "lack of sufficient evidence."

According to the defense attorney in People vs. Costello, the case involved a sting operation in which a police officer posing as a minor agreed to meet an adult, purportedly for sex. Under a two-year-old state law, it is illegal for a person to knowingly transmit material over the Internet to arouse or seduce a minor.

The decision to drop the case comes as Internet sex crimes are gaining renewed attention since the much-publicized arrest of former Infoseek executive Patrick Naughton. Naughton was arrested in Santa Monica and was charged with using the Internet to solicit sex with a minor.

Today's dismissal may point to weaknesses in the role of state prosecutors trying to rein in Internet sex crimes.

The defense attorney, John Forsyth of Clancy, Weisinger & Associates, a law firm in Walnut Creek, California, said the decision to drop the case underscores deep flaws not only in this case but also in the statute under which it was brought--California Penal Code section 288.2.

"They've got a law on their hands that is constitutionally vulnerable," he said. According to Forsyth, the law is barred by the Commerce Clause and the First Amendment.

He said today's decision by the District Attorney's office in Alameda County, California, gives weight to his theories, marking the second time prosecutors have dropped charges against one of his clients under threat of a constitutional challenge. But he also acknowledged that the case itself may have been weak, calling the police investigator "inept."

Alameda Chief Assistant District Attorney Nancy O'Malley denied that the case had been dropped because of doubts within the office about the validity of the law.

"That is absolutely not true. We do not feel it is unconstitutional," she said, adding that she has successfully prosecuted at least one case under the statute and that two more such cases are pending.

She defended the law as "very specific," in contrast to some broad federal and state laws aimed at protecting minors online that have been struck down, such as the Communications Decency Act of 1996 and similar statutes in New York and New Mexico.

She also denied that the police officer who arranged the meeting was inept. "Police continued to engage the defendant and arranged to meet with him. That says a lot," O'Malley said.

As for why the case was dropped, she said the prosecutor in charge, Deputy District Attorney Brook Bennigson, reviewed the facts and decided that there wasn't enough to go on.

"These are difficult cases," she said. But "the facts apply to this case alone."