CA- Judge rules for doctor in sex case

12-25-2008 California:

Police violated rights of East Bay man facing prison if convicted on charges of attempted lewd acts with child

Police twice violated the Miranda rights of an East Bay cancer doctor arrested in a 2006 Petaluma sting that was part of Dateline NBC's "To Catch a Predator" TV series, a Sonoma County judge ruled this week.

Dr. Maurice Wolin, 50, of Piedmont is charged with attempted lewd conduct with a child, a felony that could mean four years in prison if he is convicted. He also would have to register as a sex offender for the rest of his life.

Wolin has fought the case at every step since his August 2006 arrest -- along with 28 others -- in a three-day sting Petaluma police and other agencies conducted with the TV show and computer decoys from the advocacy group Perverted Justice.

Prosecutors allege that Wolin, whose state medical license has been suspended indefinitely as a result of the charges, arranged online to meet someone he thought was a 13-year-old girl for sexual purposes.

Wolin acknowledges driving from the Bay Area to the Petaluma home police had staked out and rigged with cameras for the sting. But he contends he wasn't intending to have sex with the "girl," in fact an adult male decoy from the self-proclaimed vigilante group Perverted Justice.

In a three-page ruling filed Tuesday, Judge Arthur "Andy" Wick said law enforcement officers twice improperly interrogated Wolin after he invoked his Miranda rights by asking to speak with an attorney.

During the booking process, Wolin asked to have counsel present during questioning, according to Wick.

"The booking officer(s) should have advised (Petaluma Police) Detective (Steve) Nelson that defendant had invoked his right to counsel and detective Nelson should not have started the interrogation," Wick ruled.

Even if Wolin hadn't expressed his wishes clearly at that point, police again violated his rights during the subsequent questioning, Wick said.

"Once a suspect in custody has clearly asserted his Miranda right to counsel, all interrogation must cease," Wick wrote. "The officers may not 'try again' under any circumstances without defense counsel being present. Any further contact must be initiated by the suspect."

The Miranda requirement stems from a 1966 U.S. Supreme Court decision to protect the individual's Fifth Amendment right against self-incrimination. Refinements in the rule are designed to prevent police from badgering a defendant into waiving his rights after he's already asked for a lawyer.

Although Wolin didn't re-initiate contact with police, Nelson "immediately proceeded to try to obtain a waiver . . ." Wick wrote. "This tactic was improper."

Assistant District Attorney Christine Cook said the trial prosecutor will review the ruling in the upcoming days to determine if it will have any significant impact on the case. Blair Berk, Wolin's Los Angeles attorney, couldn't be reached to comment Wednesday.

The ruling didn't exclude other prosecution evidence against Wolin, including the sexually-charged chats and recordings showing Wolin arriving at the house, talking with a female decoy and being arrested after he apparently saw TV monitors and began to leave.

Wolin has vigorously challenged the accuracy and legitimacy of the chats, which occurred over a four-day period and were given to Petaluma Police by Perverted Justice.

-Note: No police took part in the chat portion of the sting, only PJ personnel and Wolin.

In a motion filed this week, Berk asked Wick to order prosecutors to explain why they haven't turned over copies of the hard-drives from the computer the decoy used to chat with Wolin and from the out-of-state proxy server Perverted Justice says recorded the chats remotely.

According to court documents, the decoy, Perverted Justice founder Xavier Von Erck, recently told prosecutors the hard drive from the computer he used to chat with Wolin "experienced a complete failure" in February 2007 and cannot be copied.

-Note: In a Florida case PJ "refused to comply with a judge's order to allow an expert to examine its computer".

Berk said she has heard no mention of the alleged computer crash, formally or informally from prosecutors or during Von Erck's extensive testimony during Wolin's preliminary hearing, in August and September 2006.

"The fact that this information is just now being revealed . . . is, to say the least, highly suspect," Berk argued.

During several days of online chats Von Erck and Wolin apparently exchanged sexually tinged messages and eventually Wolin agreed to come to the Petaluma house. Several times during the conversations, Wolin declined or expressed discomfort with meeting her, even saying once that they "can't do anything" if they did get together.

He was arrested when he started to leave the house.

Additional hearings in the case are scheduled for January with trial set to begin on Feb. 6. Wolin has been free on bail since shortly after his arrest.

..News Source.. by L.A. CARTER, THE PRESS DEMOCRAT