When last we left the story of Shelby Garigen, the upstate New York soccer trainer facing “child pornography” charges because a 17-year-old boy sent her some pictures as a prelude to a planned, legally consensual sexual encounter, she had been harshly sentenced to 37 months in prison.
Not surprisingly, Garigen wants to appeal that sentence. To that end, she has changed lawyers, and her new representative wants some time to get up to speed before she starts taking up taxpayer money in prison.
But the new lawyer has already filed something that raises a whole host of red flags about the conduct of the alleged victim’s parents, prosecutors, and 80-year-old U.S. District Court Judge Richard Joseph Arcara.
A few things I hadn’t seen before in my coverage of this case, all according to this filing:
- The alleged victim (I say “alleged” even though Garigen pleaded guilty to this case because I for one have a difficult time portraying this person as a victim, and as we’ll see so later, so does he) was 19 at the time of sentencing.
- Victim 1, in the court’s terminology, was 18 at the time Garigen was expecting to meet up with him to have sex. New York’s age of consent is 17, so if Garigen had simply had sex with Victim 1 rather than receiving pictures, she would be in no legal jeopardy. (She would still be in trouble with the U.S. Center for SafeSport, which ruled her ineligible back in July 2019.)
- But because the meetup (which proved to be a setup to arrest Garigen) and the sentencing took place after the person in question turned 18, Garigen’s lawyer argues that the person in question should’ve been the one speaking, if he so chose, at Garigen’s sentencing. Instead, his parents spoke.
- Oh by the way, his parents are attorneys. The mother works for the Erie County DA’s office. The father is a former prosecutor who has worked on cases of sex crimes.
- The parents claim their son has fallen out with a friend who was also 17 when he sent pictures to Garigen, and they say that’s Garigen’s fault. Garigen’s lawyer retorts: “(The mother) fails to note the real possibility that her 17-year-old son may have withdrawn from friends and family because the FBI became involved by interviewing both him and his friend, Victim 2. Notably, Victim 2 declined to provide a Victim Impact Statement and requested no further law enforcement contact.”
- Victim 1’s father curiously argues that Victim 1 refuses to see himself as a victim at all, saying, “Dad, I’m not a snowflake.”
- Here’s where we get into questions that go beyond protective parents. “The father advised the court that he ‘helped the U.S. Attorney’s Office prosecute this case.’” Garigen’s lawyer further argues that the father’s words imply that he had read the Presentence Report, and that document is supposed to be read only by the court and respective counsel.
- And more: “The father’s theme continued when he offered his apparent expert opinion on appellant’s psychiatric diagnosis.” Garigen’s lawyer: “First, Victim 1’s father is not a psychiatrist.”
- The parents, in the characterization of Garigen’s lawyer, focused on Garigen “luring” their son — again, a consenting adult — to have sex. They don’t harp on the fact that the only charge she faces, “child pornography,” is the direct result of their son sending her dirty pictures.
- Finally, Garigen’s lawyer draws a distinction between pictures a young man posts to Snapchat and what we would normally call child pornography: “Sending a self-picture of an ‘unidentified’ penis (i.e., Victim 1’s face was not in the picture) to a self-deleting application would not in any way ‘create a market’ for child pornography and contribute to the victimization of minors.”
Garigen’s lawyer, Thomas Eoannou, submitted this 16-page motion on Jan. 21.
The next day, Judge Arcara denied the motion. (See №66 at CourtListener.com.) He’s basically hiding behind the fact that Garigen and her previous lawyer didn’t object to the parents’ testimony ahead of time. Not being a lawyer, I can’t say whether such a defense will hold up if the court indeed made a procedural error by allowing the parents to speak on their adult son’s — well, not “behalf” as such, but what they believe to be his “behalf.” What’s clear is that he doesn’t address the accusation that the parents’ testimony suggested they saw the Presentence Report or that the father offered a psychiatric diagnosis he wasn’t qualified to give. Why those questions don’t merit an appeal is something he surely needs to address.
You may be asking at this point why I’m so disgusted on behalf of a defendant whose behavior was certainly improper, as the U.S. Center for SafeSport has ruled. A few reasons:
- This isn’t the first time I’ve seen a judge throw up spurious arguments to defend his own questionable decisions.
- Given the decline of journalism, we don’t have enough watchdogs on the judicial system. If we let judges get away with the alleged behavior here without so much as a cursory check, let alone public outcry, we’re opening the door to all sorts of abuses.
- As a parent of teenagers, I find it a little insulting that a 17- or 18-year-old shouldn’t be ascribed any sort of agency in their own decisions. If a 17-year-old uses a fake ID to buy beer and crashes his car, should we simply find an older adult to blame?
- While all this is going on, the case of Juan Ramos, a Florida coach accused of starting a sexual relationship with a 13-year-old girl, has been languishing in the judicial system for more than four years.
No, you can’t compare Florida to New York, and yes, Ramos is innocent until proven guilty. But by all means, read the Ramos court documents and the Garigen court documents and tell me which case would be your higher priority as a prosecutor.
You could argue a gender double-standard here. You could also argue Garigen is paying the price for cooperating after her arrest, which seems like something else the judicial system would want to avoid.
Prosecutors and the judge are welcome to contact me to take issue with the depictions above, or they can just put out their own statements on the matter. But the media might also want to take a closer look than I’ve provided above.