Old blog countdown, #8: Sexist sex-crime hypocrisy
Originally posted April 5, 2022
This is an excerpt of the 8th-most-popular post in Mostly Modern Media history, not including obituaries that will be rounded up together. I’m linking to the original site because I have court documents stored there.
Update: Shelby Garigen was released early and has moved on with her life. What happened with her is still a travesty.
The player who sent her nude pictures went on to play soccer at an Ivy League school. He’s not really to blame. But his parents have gotten away with a gross miscarriage of justice.
I know who they are. I have chosen not to identify them, mostly because I believe Garigen just wants to put this behind her.
Juan Ramos was sentenced to 15 years in prison, so you could now argue that justice was done. But it’s still ridiculous that the DOJ was called in to bust a woman whom they believed was meeting up for consensual sex with someone over the age of consent, and that woman was railroaded through the system, while Florida prosecutors and court officials had to be reminded that they might want to follow up on the Ramos case.
Maybe their hands were tied. Maybe they couldn’t hold the overzealous prosecutors, prodded by influential snowplow parents (snowplows are indeed useful in upstate New York), responsible for soccer trainer Shelby Garigen’s plea deal.
In any case, an appellate court snuck a decision past me in late January, deciding they didn’t need to take a real look at the shenanigans that landed Garigen in jail because she was planning to have sex with someone of legal age in New York but made the mistake of getting him to send nude pics to her.
(The decision is embedded in the original post.)
A few points:
Specific assertions the appellate judges addressed
The judges first say these points don’t fall “within the ‘very circumscribed’ exceptions to the validity of an appellate waiver,” so they’re already setting a high bar to clear.
Point 1: 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 appellate 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. Rephrased in the appellate ruling: “(Garigen asserts that) the parents of a victim (“Victim 1”) made false and biased statements against Garigen and should not have been allowed to speak at her sentencing.” 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 appellate court says the lower court was within its rights to hear the parents of the “victim” (again, a legally consenting young man who wanted to have sex with an older woman) as long as Garigen was able to respond at the sentencing. They do NOT address, as far as I can see, the question of whether the father of the “victim” should have been allowed to offer expert opinions on Garigen’s mental health. Nor do they address the topic of whether a more competent lawyer would have offered a more robust response.
Point 2: Re-phrased by the appellate court as “(Garigen asserts that) Victim 1’s father had improper control over the prosecution of Garigen’s case.” The father is a former prosecutor who has worked on cases of sex crimes. (The mother works for the Erie County DA’s office.) Garigen’s appeals lawyer: “The father advised the court that he ‘helped the U.S. Attorney’s Office prosecute this case.’”
The appellate judges say the record doesn’t support Garigen’s claims. They do not support their assertion.
Point 3: 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.
The appellate judges wave this accusation away, not convincingly, taking a statement out of context from the 28th paragraph of Garigen’s appeal.
What the appellate judges didn’t address
Given their insistence that there’s nothing to review here because Garigen should’ve known the risks of accepting her plea deal, it’s not surprising the appellate judges didn’t address the fact that the parents of the “victim” presented several arguments that are, in fact, hogwash.
From what I’ve written before: 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.”
And: 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.
Again, perhaps those aren’t questions for the appellate court to address.
I find it hard to believe, though, that this argument should be ignored:
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.”
In other words … the entire basis for the prosecution of this case may have been built on a misapplication of the law.
If that’s not in the appellate court’s jurisdiction, it should be. If the appellate court can’t do more to right wrongs that were done because Garigen’s original lawyer failed to object in time, that needs to change. Time to rewrite some laws in New York.
We all know what happened …
A teenager of consenting age started flirting with his trainer, and things progressed to where they started talking about having sex and eventually agreed to meet up for that purpose.
The teenager’s well-connected parents got wind of it and refused to assign any responsibility to their kid. All her fault, they decided.
A terrified, ill-informed woman took a plea deal but hoped for a reasonable sentence.
Those well-connected parents took advantage of their connections to bulldoze her lawyer.
An 80-year-old judge barely took the time to consider the motion by her replacement lawyer.
Maybe the appellate court can’t address it. It’s a pity we don’t have more watchdogs in the media who can get to that courthouse, the FBI’s Buffalo office and the U.S. Attorney’s office to ask if it’s really necessary to take up prison space for this. Probation? Sure. A ban from working in soccer? Already happened. But prison? I’m sure taxpayers are thrilled.
Previous posts:
Oct. 8, 2020: A sexist double-standard in sexual abuse cases?
Feb. 21, 2021: Why is a New York court obsessed with putting a trainer in prison?
Oct. 17, 2021: Still waiting for justice in soccer sexual abuse cases
The rest of the original post was an update on the Juan Ramos case, which included the equally amusing and sad subplot that the prosecutors were apparently unaware that Ramos’ lawyer had moved his “office” into a UPS store.