04.29.07
More Lawyers Behaving Badly
So I didn’t post all week, and for this I apologize. I had what I will just characterize as “one of those weeks” and it took the entire weekend for me to recover from it. But now I bring you an installment of one of my favorite topics…Lawyers Behaving Badly. This time it involves an NYC lawyer who sent sexually explicit text messages and emails to someone he thought was an underage boy…it was, of course, an undercover. And this story has some legal twists - specifically, what does the word “depict” mean?
Jeffrey Kozlow was originally convicted in 2005 of five counts of disseminating indecent materials to a minor (I will leave aside, for now, the separate discussion about cases like this never actually involving any minors).
Kozlow shared his sexual fantasies with “JohnInYonkers914″ and tried to get the purported teen to discuss his sexual habits. But Kozlow never sent pictures or images of minors engaged in acts he fantasized about, prosecutors acknowledged. He cautioned “JohnInYonkers914″ in e-mails that he was interested only in talking on the day of the arranged meeting, and not physical contact.
Following his arrest, Kozlow said he believed “JohnInYonkers914″ was a 14-year-old boy. But he also told authorities that he thought he could say anything he wanted in text messages as long as he did not send “pornographic pictures.”
He appealed the convictions and the appellate court overturned them, holding that there were no pictures involved and thus the communications did not “depict actual or simulated nudity, sexual conduct or sado-masochistic abuse…” as the statute reads.
But this week, the New York high court overturned that decision by relying on the good ole OED, which states that in colonial times “depict” could mean “to represent or portray in words.” I at least give them credit for not resting solely on this and acknowledging that the legislature meant to give a broad meaning to the law in order to target so-called sexual predators on the internet. A strict constructionalist dissent took the politically and socially unpopular position and noted that many other dictionaries never mention mere words in their definition and that, just because the legislature recently amended the law to explicitly include just words, Mr. Kozlow’s actions were not felonies at the time that he did them.
He was, not surprisingly, disbarred.
Noctua@SG said,
May 1, 2007 at 2:11 pm
I’ll assume you mean the Kozlow and not the dissenting judge.
I guess I never quite got on what grounds legislatures can authorize a fake crime and have whoever they manage to net charged with a real crime. This is done with johns in prostitution cases, drug addicts and dealers in drug cases and, in this case, pedophiles. Isn’t this the equivalent of saying, ‘If you could kill the President and get away with it, would you do it?’ then arresting anybody who says yes?
I suppose what I’m wondering is whether or not the law is supposed to be prescriptive (ie. You were thinking about doing bad things, so we’ll take you out now) when it’s generally reactive (ie. You were caught doing X and now you’ll get punished)?