Sting case tossed after error by prosecutor - Albuquerque Journal

Sting case tossed after error by prosecutor

Copyright © 2020 Albuquerque Journal

As Christ Sathoud was on trial last spring accused of agreeing to pay to have sex with deputies posing as teenagers, a prosecutor asked a defense witness whether sending unsolicited lewd photographs was a form of sexual deviancy.

But there was no evidence that Sathoud ever sent images of his genitals to anyone. In an order filed earlier this month, Judge Brett Loveless found that the prosecutor acted in willful disregard when he raised the issue in front of a Bernalillo County jury. The judge barred retrial of Sathoud on double jeopardy grounds and dismissed the case with prejudice, meaning it cannot be refiled.

“In making its determination, the court is mindful that the purpose of the double jeopardy clause is not to punish prosecutors but to protect defendants ‘from reprosecution once a prosecutor’s actions, regardless of motive or intent, rise to such an extreme that a new trial is the only recourse,'” Loveless wrote in his order.

Prosecutors with the Attorney General’s Office said in court filings that the prosecutor, while preparing for Sathoud’s trial, had inadvertently accessed evidence from another case that included the images. But Loveless wrote in his order that the photographs have never been provided to the court.

The question by prosecutor Bryan McKay came as a forensic psychologist opined that Sathoud was not predisposed to seek out sex with a child.

“The prosecutor invented evidence that doesn’t exist,” Sathoud’s defense lawyer, Nicholas Sitterly, said in an interview Tuesday.

“I mean, I don’t think it gets much worse than that,” he later added.

The AG’s Office has asked Loveless to reconsider his order, and the defense has urged the judge to reject their request.

Multiagency sting

Sathoud’s charges of child solicitation and attempted human trafficking were the result of a 2017 sting by a coalition of law enforcement agencies. A Journal story published not long after the sting reported that each agency involved took a different approach. The AG’s Office focused on finding men believed to be preying on teenagers.

“They want to meet a child to have sex with them,” an AG’s Office agent said then. “We want to send that message that you have no idea who you’re going to walk in with, so maybe just don’t do it.”

A review of the seven arrests stemming from that portion of the sting shows Sathoud’s case is the fourth to close with no conviction.

As for the three men who were convicted? They were sentenced to probation.

“This operation resulted in multiple convictions and prosecution of these cases remains ongoing,” Matt Baca, a spokesman for the AG’s Office, said in a statement. “Any law enforcement operation that holds a potential offender accountable is extremely valuable in protecting children from abuse.”

He said that two cases that had been dismissed by the state early on are still being reviewed for prosecution.

In a statement Wednesday, Sheriff Manuel Gonzales called the operation successful and said that the agency will continue to “combat Albuquerque’s crime crisis and target the criminals who seek to harm the children, families and businesses of Albuquerque and Bernalillo County.”

Site for adults

Court documents show that six of the men arrested responded to advertisements on backpage.com, a website known for listing sexual services. Sathoud was the only one charged after responding to a profile on adult dating website Plenty of Fish. The profile for “Toni N kandie” said the user was 18, and it invited site visitors to “keep me company” and “ask about my friend.”

A criminal complaint filed against him says that Sathoud messaged the profile, and after some communication said that he was interested in “adult type fun” and asked for a price. An undercover agent responded with a price, and said she and her friend were both 15, but “can do adult fun.” He initially said it was risky and that he didn’t want to get into trouble, but later he agreed to pay $60 for a threesome and met the deputies in person at a motel, where he was arrested.

The profile featured photos of the deputies, who were then 28 and 23, and had not been age-regressed. And Sitterly said his client was deep into a conversation with them before there was any suggestion that he was communicating with a teenager. He met up with them, but quickly tried to leave and never brought out any money. Sitterly asked the court to dismiss the case, arguing his client had been entrapped.

“You’re spending taxpayer resources to go onto adult dating sites to use adult women’s photos to get an adult man – who mostly messages adults – into a situation, and then you arrest him when he tries to leave? To me, you’ve got your priorities really backward there. Go to the dark web and investigate actual child trafficking,” Sitterly said.

The case was initially dismissed because the state was negligent in its duty to disclose evidence, but it was refiled soon after.

Judge declares mistrial

The case finally went to trial in May 2019. Problems arose on the fourth day as a forensic psychologist testified in support of Sathoud’s entrapment defense.

The prosecutor asked whether sending pictures of genitals to women, unsolicited, could “fit within sexual deviance.” Sathoud’s attorney asked to speak privately with the judge and prosecutor, saying that it was the first time such photographs had been mentioned in the case.

Prosecutors later explained that the photos referenced were possibly from a “similar operation to the one resulting in the defendant’s arrest,” the judge wrote. Loveless declared a mistrial after finding a “false fact had been injected into the trial.”

He asked attorneys to file written arguments over whether the case could be retried, and he dismissed the case Feb. 10.

“… Inadmissible and as it turns out non-existent evidence was presented to the jury without proper foundation and in violation of the defendant’s right of confrontation,” Loveless wrote in the order dismissing the case.

The report that would have included any such photos had also been excluded from the trial, so even if the evidence had existed in Sathoud’s case, the question shouldn’t have been asked. He also pointed out that Sathoud is “very dark-skinned, in contrast to the individual involved in the other case.”

“The court inquired as to how there could be a mistake about whose private parts were depicted in the photographs,” which he said the prosecutor was not able to explain.

Loveless said he was also troubled by the state’s failure to produce the photographs. The state said it couldn’t locate the photos, and the computer that it was using to view them malfunctioned.

“While the court has already indicated it does not believe the prosecutor acted in bad faith or ‘to avoid an acquittal at all costs,'” the judge wrote, “without any evidence of the photographs or an adequate explanation of how the prosecutor made the mistake, it is difficult for the court to evaluate the nature of the prosecutor’s misconduct in referring to the photographs.”

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