That’s because state District Judge Stan Whitaker on Monday ruled that neither a website, an online message board nor a computer amount to a “house of prostitution or a place where prostitution is practiced, encouraged or allowed,” a necessary element of the crime of promoting prostitution.
Garcia, Fairleigh Dickinson University physics professor David C. Flory and others were arrested last June on a criminal complaint charging them with promoting prostitution.
The arrest of Garcia, a well-known political science professor and analyst, shocked the university and political communities. Police said he was known as “BurquePops” on the Southwest Companions website.
Flory is accused of creating the multistate operation, which police said was designed to introduce prostitutes to johns free from the prying eyes of law enforcement. Both Garcia and Flory posted bond, and charges were dismissed while the investigation continued.
Because the website is at the center of the state’s case, Whitaker’s ruling “doesn’t necessarily negate a grand jury presentation, but it certainly impacts it,” Chief Deputy District Attorney Mark Drebing said.
The case was scheduled to go before a grand jury on Monday, Drebing said, but defense attorneys had filed a motion earlier this month seeking to “preclude prosecutors from seeking an indictment for conduct that, as a matter of law, is not a crime.”
Before grand jurors could hear the case, Whitaker agreed with the defense motion and ordered that, if prosecutors were to proceed, they must instruct jurors on the court’s ruling.
That sent prosecutors back to the drawing board, Drebing said.
The state’s options are to reschedule the grand jury presentment and either abide by Whitaker’s order, come up with different charges or appeal the judge’s order to the state Supreme Court, he said.
No decision has been made, Drebing said, but regardless, the case has been delayed.
If prosecutors decide to go with different charges, their options are limited at the state level, he said. New Mexico has laws on the books for computer fraud and use of computers and the Internet for child pornography but none specifically geared toward prostitution.
Drebing said there may be federal laws that could come into play.
And while he declined to discuss whether prosecutors would stand by their theory of a “virtual house of prostitution” in the Southwest Companions case, Drebing did offer a glimpse into some of the state’s thinking.
“If the website itself is not a place where prostitution is practiced, encouraged or allowed, and neither is a computer, is the room where the computer is stored?” he said. “Because the purpose of the (Southwest Companions) website is to arrange sex between prostitutes and clients.”
Drebing said prosecutors are concerned with Whitaker’s ruling on procedural grounds.
He said the judge ruled on facts in the case that have not yet been presented and that the defense had essentially offered a theory of the prosecution’s case in its motion.
Garcia’s attorney, Robert Gorence, did not return a telephone call seeking comment Tuesday.
Gorence last month called on District Attorney Kari Brandenburg “to issue a statement exonerating Dr. Garcia” after owning up to “the mistake she made when she bought in to APD’s flawed investigation and exaggerated charges.”
Gorence told the Journal prosecutors and police know that Garcia “never received a penny from any such activities nor did he control or direct the activities of women who advertised as escorts.” Statements to the media about the alleged conspiracy were “ludicrously false,” he said.
He said Garcia’s “reputation was thoroughly sullied and he was dismissed from his UNM position, (but he) has been unable to clear his name in a court of law.”
— This article appeared on page A1 of the Albuquerque Journal