How Guilty Was G. Valle?

So today a jury in federal court convicted Gilberto Valle of, among other charges, conspiracy to commit murder. The case drew considerable attention based on the sensational facts--a conspiracy to kill, cook and eat women for sexual pleasure is, outside of the pages of Thomas Harris' fiction, fairly outré. Especially when the alleged perpetrator was a New York City cop.

Ah, but wait a moment, wait a moment--perpetrator of what, precisely? Valle didn't actually harm anybody, let alone kill anyone, did he? And so the question is being asked, has Valle been convicted of "thoughtcrime" in the guise of conspiracy? After the conviction, the Times reports, that was exactly the contention of his counsel:

His lawyer, Julia L. Gatto, called the verdict “devastating” and said the government had not proved its case. “This was a thought prosecution,” she said. “These are thoughts, very ugly thoughts, but we don’t prosecute people for their thoughts. And we’ll continue to appeal and continue to fight for Mr. Valle.”

Now, there are reasons to fear the application of conspiracy law to bootstrap thoughts into crime; as Justice Douglas pointed out in his dissent in Dennis v. United States:

Petitioners, however, were not [p582] charged with a "conspiracy to overthrow" the Government. They were charged with a conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our Government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence...

The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is emphasized by a concurring opinion, which, by invoking the law of conspiracy, makes speech do service for deeds which are dangerous to society. The doctrine of conspiracy has served divers and oppressive purposes, and, in its broad reach, can be made to do great evil. But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet that is precisely what is suggested. I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in the indictment. To make a lawful speech unlawful because two men conceive it is to raise the law of conspiracy to appalling proportions.

Douglas notes that the abuse of the conspiracy laws to convict adherents of the Communist Party was redolent of the abuse of the treason statutes in the medieval era, in which

the concept of constructive treason flourished. Men were punished not for raising a hand against the king, but for thinking murderous thoughts about him. The Framers of the Constitution were alive to that abuse, and took steps to see that the practice would not flourish here. Treason was defined to require overt acts -- the evolution of a plot against the country into an actual project. The present case is not one of treason. But the analogy is close when the illegality is made to turn on intent, not on the nature of the act. We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did, but for what they thought; they get convicted not for what they said, but for the purpose with which they said it.

All of which is to say, yes, this case raises significant First Amendment issues. A closer look at the facts and the law is warranted.

Starting with the law, then; the Supreme Court has long held that a conspiracy may be properly punished under criminal law:

Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains, in essence, an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

(Brown v. Hartlage, opinion of the Court by Justice Brennan.)

As I wrote in First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004), "conspiracy, the archetype of such inchoate offenses, it is the formation of the agreement itself that is the offense--the creation of an an association with the goal of committing the criminal act." (p. 199) To establish a conspiracy, though, an agreement is not in and of itself enough; an "overt act" must be proven, meaning an act "in furtherance of the plot." Often prosecutors shoulder the higher burden of proving a "substantial step" (necessary under federal law to prove an attempt) in order to allay thoughtcrime concerns.

That was, in fact, the case at Valle's trial; the prosecution's evidence, as detailed in a rather sardonic account included e-mails as described in testimony:

What, exactly, was in those emails from his account? . . . The first set describes a bargain struck between Valle and a co-defendant from New Jersey named Michael Van Hise. In those discussions, Valle claims to be an aspiring professional kidnapper, and they work out a deal in which Valle will deliver one of his friends—a real woman he knows—as a sex slave for Van Hise. The two discuss Van Hise's plans for this victim and how Van Hise intends to rape her right away and then keep her locked up in his house.

Eventually they agree on a price of $4,000 for the kidnapping. Valle promises to drive her over in the trunk of his car one day in February 2012, but when the appointed day arrives, no delivery occurs. The government offers no evidence that Valle and Van Hise discussed this aborted plan again. Instead, the correspondence jumps ahead to another round of negotiations, very similar to the first, except the price is now $5,000. Van Hise never mentions that the price went up, nor that he failed to receive his sex slave the first time around. The two men inexplicably behave as if the first arrangement never even happened.. . .

Other overt acts included surveilling women identified in e-mails as intended victims, using police databases to obtain information about them, and setting up a meeting with one woman, along with his own wife and daughter.

It's a difficult case form an opinion on without seeing all of the evidence, frankly. Clearly, enough evidence existed to allow a case to go to a jury--a conspiracy may be prosecuted even if it stops well short of fruition. Here, the e-mails establish communications purporting to constitute several agreements--if they were in earnest and not role-playing, as the defense claimed. But without Valle testifying, arguing that his subjective intent was merely to share fantasies became very difficult, as it could only be done circumstantially and inferentially. The question of whether the evidence proved beyond a reasonable doubt to the jury is one which, on appeal, will be viewed in the light most favorable to the prosecution, which does not augur well for appeal.

An instance of "hard cases make bad law"? Perhaps; we'll see on appeal. But a narrow decision on the question of intent and evidence would likely have little precedential value; this case may truly be sui generis