A Fresno man's conviction for soliciting sex from a sheriff's deputy in a Roeding Park restroom nearly five years ago was overturned by a three-judge panel, it was announced Thursday.
But the ruling, which threw out the conviction of Stephen Lake, 51, did not address whether the bathroom stings were discriminatory because they targeted only homosexual activity. Instead, judges Donald Black, Kent Levis and Debra Kazanjian ruled that prosecutors did not establish that someone was likely to be present who would have been offended by Lake's conduct, an element needed to prove a crime took place.
"They punted," said Lake's attorney, Bruce Nickerson, of the court's decision not to deal with the discrimination issue. Nickerson argues that the arrest and prosecution are discriminatory because men and women are never prosecuted for soliciting sex if money is not involved. Nickerson said he has filed a $1 million lawsuit in federal court against the Fresno County Sheriff's Department for violations of constitutional rights.
He also said Sen. Larry Craig of Idaho, recently arrested in a similar sting in a Minneapolis airport, can probably also reverse his guilty plea on grounds of discrimination.
Bob Ellis, Fresno County chief assistant district attorney, said his office has not had a chance to review the ruling to decide what it means to other cases stemming from the 2002 Roeding sting. Assistant Sheriff Tom Gattie said the department would not comment Thursday.
Several of those arrested have yet to be tried. Most of the 40 men caught accepted plea deals.
The ruling backs up a December 2006 decision by a separate panel of three judges that overturned a conviction in the stings, which prompted prosecutors to ask for the rehearing.
During the sting, deputies pretended to be cruising for sex. According to court records, an undercover deputy would enter park restrooms, make eye contact with people and suggest that they engage in sex acts.
In Lake's case, a deputy testified that in response to Lake's nod, he approached Lake and Lake said that he wanted "to get it on" inside the park. The deputy said Lake told him they could go "just about anywhere," but not the nearby restrooms and that he wanted to wait until after dark so that they wouldn't get caught. At that point, the two separated. The deputy said he saw Lake in the park later, but there was no evidence of any sexual conduct involving Lake.
The court ruled that since the two agreed to meet at an unspecified time and place, a jury would have to speculate that someone was likely to be present who would be offended.
Nickerson, who said he has been handling similar cases for 25 years, said he has never seen an arrest of a man for soliciting a woman for nonmonetary sex.
"It's an appalling thing," he said. "No jury in California would convict a man for saying to a cute girl, 'Hey honey, let's get it on.' "
Nickerson said the stings are a tremendous waste of police resources better used elsewhere.
"A sting operation in an airport -- is that going to make us safer?" he asked of the Craig case. Nickerson said he had called Craig's office and offered to defend him pro bono.