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Before launching the five-member Internet Crime Bureau just over a year ago, Ficano had Wayne County prosecutors conduct a four-month review of which laws could be used to prosecute criminals on the Internet, as well as how to steer clear of entrapment issues. What Ficano and his cybersquad didn't anticipate was that the state law itself could be such a stumbling block.
Take the case of Christopher Thousand, 24, arrested last December after he showed up at a McDonald's restaurant in Detroit where, police say, he had arranged to meet someone he believed to be a 14-year-old girl. (It was actually a 40-ish deputy sheriff.) With his client facing up to 20 years in prison for child sexual abuse and other allegations--including solicitation of criminal sexual conduct and distributing obscene matter to a minor--Thousand's lawyer, David Fregolle, cited a 1975 Michigan supreme court case in which charges were dropped against a physician accused of a conspiracy to commit an abortion. Just as that case was dismissed because it was later learned that the woman wasn't pregnant, Thousand's attorney argued that the sexual-abuse law explicitly states that the victim must be a minor--not an undercover cop. "You can't solicit a minor unless you have a minor," says Fregolle. "He might be guilty of bad judgment, but you can't criminalize the behavior." The case against Thousand was dismissed, but prosecutors have appealed.
Of 17 arrests made by the sheriff's office for pedophilia and child pornography since the program was launched, none have yet ended in a jury conviction. (Two of those charged with child-predator offenses plea-bargained for reduced sentences.) Ficano has persuaded Michigan state senator Mike Rogers, a former FBI agent, to introduce new legislation that would explicitly allow police to pose as minors online, closing the loophole that it's a "legal impossibility" to intend to commit a crime against a fictitious child. "No law-enforcement official is ever going to subject an actual child to the kind of verbal assaults and trading of explicit pictures that occur online," says Ralph Kinney, the deputy chief of staff who commands the sheriff's cyberunit. "We've got to bring the laws up to date with technology."
Not long ago, Kinney's cyberforce headed north to Jackson, Mich., to conduct a sting operation of what they believed was a distributor of kiddie porn. The culprit, though, didn't turn out to be some reclusive pervert, just a couple of very frightened brothers, ages 15 and 12, collecting the stuff as a gag. Most impressive, though, was the boys' computer software and savvy. In their possession was Windows 2000, an operating system not yet available in stores at that time. Deputies decided to go easy on the kids. Their penalty: "They have to teach us everything they know," says Kinney.