BAKERSFIELD, Calif. (KGET) — A Kern County judge on Thursday denied a defense request to dismiss charges against a man arrested in an online child sex sting after hearing an investigator failed to preserve the decoy account used in the operation.
Although a sheriff’s sergeant acknowledged he didn’t save details regarding the profile account he created on a dating app where he exchanged messages posing as a 16-year-old girl, Judge John Oglesby found the sergeant did not act dishonestly and said he didn’t see how the missing evidence harmed the defense.
The judge said he understood the frustration felt by defense attorney Jared M. Thompson on that issue and others raised during the roughly two-hour hearing.
“Bottom line is I think it’s for the jury to sort out,” Oglesby said.
Brian Pardue, a former California Highway Patrol officer, was arrested July 3 and charged with contacting a minor to commit a sex act. He is due back in court next week when attorneys will say if they’re ready for trial on Oct. 3.
Thompson, of Humphrey & Thompson, filed a motion last week to dismiss the case after discovering Sgt. James Newell “destroyed” the fake profile he created on the dating app Skout, depriving the defense of potential exculpatory evidence showing the profile “was that of an adult female.” He said the information could not be obtained from Skout because Newell didn’t remember the account name or password.
Newell testified Thursday he does not recall when he created the account, the date of birth he used for it and what images he uploaded. He said there could have been several profile pictures.
The sergeant said he believes he used a real image, possibly provided by a federal law enforcement agency, of an adult but the face was “morphed” — altered so the actual person would not be recognizable.
Thompson asked if he understood the profile information could be exculpatory and helpful to the defense.
“Yes,” Newell said.
He also acknowledged he didn’t state in the report he wrote that the profile used was of an adult. The profile indicated it belonged to an adult, Newell testified, but in conversation he posed as a minor. In the report he only says he has been using an account to pose as a minor decoy for several weeks.
Under Skout’s terms of service, anyone who indicates they are a juvenile will have their profile erased. Newell testified he didn’t read the terms of service. While operating the sting he and other investigators found they couldn’t log in anymore and contacted the app’s administrators.
Prosecutor Ken Russell asked Newell if he ever intentionally destroyed profiled information. “No,” the sergeant said.
Newell said he began preserving screenshots of decoy profiles about two weeks ago following a discussion with Russell.
In arguing his motion, Thompson called Newell’s actions “deceitful” and “misleading.”
“This case shouldn’t be allowed to go to trial because it’s egregious,” he said. “It shouldn’t have happened this way.”
Russell said there was no evidence Newell failed to save the profile information to gain an advantage in the case. He said investigative techniques change over time and Newell’s admission that he now saves the account information doesn’t mean his actions were wrong in Pardue’s case.
The sergeant failed to preserve the information but did not intentionally destroy it, Russell said.
The prosecutor noted Pardue continued to exchange sexual comments with the decoy account even after Newell wrote he was communicating with a 16-year-old.
In a motion he wrote opposing dismissal, Russell said Pardue “was clearly told that he was communicating with a 16-year-old female, whether true or not, and then he escalated the vulgarity of the conversation with this child. That is the conduct of an opportunistic sexual predator, not a normal law-abiding person.”
Russell told Oglesby, “At worst we have an investigation that could have been done better” and the issues raised by the defense did not require the case to be dismissed.