Entrapment allegations get attention, but not in court

1-14-2008 Ohio:

They were two of the area's most talked-about cases last year -- people in the public eye accused of provocative crimes.

Months later, debate continues about whether police entrapped the accused.

A Columbus firefighter was charged with public indecency in May for exposing himself to a woman he was cozying up to in a park.

A backup quarterback for the Ohio State football team was charged with solicitation in September after talking to an undercover police officer posing as a prostitute.

Both cases ended up in court in November: A jury convicted Robin Garrison of exposing himself in Berliner Park, and OSU's Antonio Henton pleaded guilty to a reduced charge.

Garrison's story has been featured on ABC and Fox news reports as well as on blogs and local talk radio. ABC posted a videotape of Garrison's encounter and asked viewers to comment. By Jan. 4, more than 800 people had weighed in.

"It's a big chaotic mess that won't go away," said Amanda Ford, a spokeswoman for the Columbus Police Division.

Garrison's attorney, Sam Shamansky, argued in court that police used a woman who was sunbathing topless in the park to entrap his client. She flirted with him, put her foot on his shoulder and asked to see his penis, Shamansky said.

Police had asked the woman to move to the back of the park because she was causing traffic problems on Greenlawn Avenue as motorists slowed down to look at her. She did, and police set up a video camera nearby.

Police said she wasn't working for them, but the woman didn't seem surprised when three officers moved in on Garrison, Shamansky said. Another man was charged with exposing himself to the sunbather the same day.

"What was done is done," said Lt. Steve Hope of the vice squad. "She was not working at our request."

Even if Garrison thought he was about to have consensual sex in a park, exposing himself is a crime, Hope said. Flirting and going topless are legal.

"You might think they were using her as bait, but Garrison took it," said Jeff Furbee, an assistant city attorney who advises the police on legal issues. "But police said they weren't using her as bait. … Police kept an eye on her hoping to catch someone."

ABC News has compared Garrison's case to a New York City sting in which police set out wallets and iPods to see if anyone would take them. Those who did were charged with theft.

Critics have argued that the New York operation turned potential good Samaritans into criminals by charging them before they could turn in what they thought were lost items. A jury found Garrison guilty of public indecency, a fourth-degree misdemeanor. Shamansky has appealed, saying the jury should have been instructed to consider entrapment.

Under Ohio law, entrapment occurs when government officials such as the police persuade an innocent person to commit a crime just so they can prosecute him or her.

"Where a person is ready and willing to break the law, the fact that government officials provide a means to do so is not entrapment," the law says.

"It takes a lot to get to the level of entrapment," Furbee said. "It's a hard thing for a defendant to claim: 'I did it, but the government officials essentially made me do it.' "

That's why officers posing as prostitutes or as children online are not committing entrapment when a potential "john" or online pedophile comes calling, he said.

Garrison has been assigned to a fire station on the Northwest Side while he awaits a disciplinary decision by the city's safety director. Fire Chief Ned Pettus Jr. has recommended unpaid suspension for 240 hours and firing if Garrison violates the yearlong probation ordered by Franklin County Municipal Judge Michael T. Brandt.

Some wondered whether Henton, a freshman quarterback, had been entrapped because the officer named the price for sex, which once was not allowed.

"He wasn't entrapped, because he didn't do it," said Henton's attorney, Jim Phillips.

Police said Henton agreed to pay an undercover officer $20 for sex on Sept. 14. After his arrest, he was suspended from the football team.

Because a jury trial was unlikely before January, Henton pleaded guilty to a reduced charge of loitering to engage in soliciting, Phillips said. That cleared the way for him to play in the final two games of the season, although he didn't.

Despite the guilty plea to the minor misdemeanor, Henton did "absolutely nothing wrong," Phillips said.

The officer brought up sex and mentioned a price, he pointed out. In her report, the officer said Henton nodded and answered "yeah," but his response couldn't be heard or seen in a videotape of the arrest.

After the 42-word exchange, Henton made a U-turn and was heading away from the alley where the female officer had suggested they meet, Phillips said.

Franklin County Court of Appeals rulings in 2005 and 2006 gave Columbus police officers more leeway in what they can say to prostitutes and johns, Furbee said.

Officers now can mention price and sex acts, Furbee said. Previously, that wasn't allowed.

"A lot of cases are close calls because they get into a verbal dance," he said. "I think that's why the courts have relaxed the standards a bit." ..more.. Dispatch reporter Ted Decker contributed to this story.