U.S. Attorney in hot seat as politics and law clash - Janet Napolitano
Insight on the News,  Sept 2, 1996  by Jamie Dettmer See Source
Serious questions have surfaced regarding a bus driver, a Clinton appointee and a search warrant.
Apartment manager Jenni Burk is fuming. Five months have not cooled her anger. "I thought about marching down there to her office and giving her a piece of my mind! " the angry mother of three says. "
I was amazed. I couldn't believe that with all the evidence they had they couldn't get a search warrant. I can't understand why that woman with all her power wouldn't stop children from being hurt."



"
That woman" is U.S. Attorney Janet Napolitano. And the 56-year-old Burk isn't alone in wondering what led the controversial Clinton appointee to refuse investigators with the U.S. Postal Inspection Service, or USPIS, a warrant to search the one-bedroom Phoenix home of one of Burk's residents, James Moore, an admitted child pornographer and molester. Republicans, including presidential candidate Bob Dole, also are demanding to know why Napolitano declined to act against Moore, and the Senate Judiciary Committee is investigating claims aired in May on the ABC program 20/20 that she refused the warrant because it was part of a sting operation targeting homosexuals.


As far as Burk and
USPIS Inspector Karen Cassatt are concerned, there were clear grounds for searching Moore's apartment: He was receiving suspicious-looking videos from known child-porn and adult videomakers such as Spartacus, an overseas distributor, and the Hollywood-based IVC. The specter of frightened-looking Mexican boys, some possibly as young as 9, who frequently were spotted with Moore also was troubling. On several occasions Burk asked the openly homosexual Moore who the children were and where they were from. "He always said they were the children of friends," she tells Insight. "I knew he was gay I had no problem with that -- there are a lot of gay men living here. But I was worried about the children. There was one boy -- he must have been about 13 or 14 -- and I could see he was scared to death." Burk also noted that Moore's apartment was full of photographs of young boys, most of them nude from the waist up.

The Phoenix Police Department agreed there was "probable cause" for further inquiry and, after Napolitano refused in January 1996 to have anything to do with the case, a state judge was approached and promptly granted a search warrant. A motherlode of child-porn evidence was discovered and Moore, a bus driver, admitted to having had sex on numerous occasions with boys. He was charged with sexually exploiting minors by a local county prosecutor, a charge that under Arizona state law carries a sentence of 10 to 24 years on each count. He is awaiting trial on a vast variety of charges, some of which he is contesting.


In a press conference
the day after 20/20 broadcast an interview with an outraged Cassatt, Napolitano flatly denied that she had blocked the Moore search warrant on the grounds that it was part of a nationwide federal undercover operation targeting gays. She labeled the Cassatt allegation "fundamentally offensive," declaring: "It's just not true. It's just flat wrong." According to Napolitano, there were clear legal grounds to decline the warrant.

Attorney General Janet Reno and the White House have defended Napolitano. They maintain she has become an election-year political target and that Republicans are using her in a bid to knock President Clinton's crime-fighting credentials in the run-up to November. Napolitano supporters also argue that conservatives have been keen to get the US. attorney ever since she served as one of Anita Hill's lawyers during the Clarence Thomas confirmation hearings in 1991. Indeed, Senate confirmation of Napolitano's appointment as Arizona's U.S. attorney was extensively delayed in 1993 when Republicans raised questions about her role in the Thomas hearings.

But
previously undisclosed evidence obtained by Insight, including an audiotape of a tense hour-long conversation between Cassatt and Napolitano assistants Mary Murgea and Sharon Novitsky, raises new questions about Napolitano's decision to refuse the Moore search warrant. It provides support for Cassatt's contention that the U.S. attorney was unhappy with undercover operations that include as targets homosexuals suspected of illegal acts.

Other documents obtained by Insight detail USPIS discussions about the Moore case and, with the audiotape, add to the impression that
ongoing child molestation or not, Napolitano would not countenance a sting operation against homosexuals.


The Moore case was a small part of a much larger, two-year USPIS probe called "
Operation Special Delivery." The operation has been highly successful: 45 people nationwide have been charged with a variety of child-porn offences. In an effort to catch potential child molesters, USPIS inspectors set up a scam child-porn business and contacted men whose names had appeared on a customer mailing list of a porn outlet. Moore was one of the men, and the inspectors sent him a solicitation offering him videos of "hot lads." Moore then ordered two tapes: Young Teen and Young Men. At the same time, apartment-manager Burk's suspicions about her tenant were aroused. She was concerned about the stream of young Mexican boys visiting Moore's apartment, she says. Burk also was worried about the videos Moore received and coincidentally contacted the USPIS just as it was about to swoop on the unsuspecting bus driver.

But
when Cassatt asked for a search warrant, it took Napolitano's office nearly two months to decide whether to grant the request. Eventually, it turned Cassatt down on the official grounds that Moore wasn't "predisposed" to buy child porn and that the evidence against the 55-year-old homosexual didn't meet probable-cause standards. In their argument about legal flaws, Napolitano's assistants cited one case in the 9th Circuit Court, which encompasses Arizona, in which a judge threw out a search warrant on entrapment grounds.

Insight has learned that the
Justice Department's antipornography unit, the Child Exploitation and Obscenity Section, or CEOS, disagreed with the position taken by Napolitano. It volunteered to send a prosecutor to Arizona to take on the case, only to be met with a strong "no thanks" from Napolitano.

Justice Department sources say the CEOS believed Napolitano and her assistants were wrong to argue that judges in the 9th Circuit wouldn't be happy with the warrant. The sources, who asked not to be identified, say several Operation Special Delivery warrants similar to Moore's were served without any problems.

At the request of the USPIS. at the time of the interdepartmental arguments, Justice Department trial attorney Georgiann Cerese even wrote an opinion analyzing the constitutionality of sting operations such as Special Delivery. She concluded: "A number of courts have discussed and reviewed the permissibility of utilizing such undercover operations in the investigation of child-pornography offences.
The courts have uniformly held that undercover operations are justifiable and permissible." She added: "Undercover operations have been found to be justifiable due to the nature of the commission of crimes involving child pornography and the evils caused by child pornography."

How could Napolitano's reading of probable-cause law be so different from that of the Justice Department and the CEOS? A Jan. 29 telephone conversation between Napolitano assistants and Cassatt may shed some light on the issue. The secretly taped telephone conversation, which occurred after the U.S. attorney's office had decided to block the search, tends to support Cassatt's allegation that a political reason was behind Napolitano's decision to refuse the warrant.


Most of the conversation involves
heated discussions between Napolitano assistants Murgea and Novitsky lambasting Cassatt for going to a local prosecutor for a warrant. There also are disputes about the evidence against Moore, with the USPIS inspector insisting that there were ample grounds for action.

Murgea at one point states that
Napolitano had "concerns with respect to the lack of predisposition and the potential entrapment." Cassatt points out that she had had no trouble on previous cases: "I have had these [warrants] approved in Reno and Las Vegas.... We've had them approved in different districts all across the country.... I think I am on very strong constitutional grounds because this came from the Department of Justice in Washington."

Later during the call Murgea states: "Aside from that [the probable-cause dispute],
there's a policy consideration. And for you, it may be the end justifies the means. For us, I think that there is a policy consideration to be given ... and that is targeting these individuals and what is used to target them." Murgea spells out after several more exchanges what she means by individuals: "I'm concerned, you know, on some of these cases ... that this is targeting homosexual males and that's all you have on them."

Rebecca Even, public-affairs officer for the Arizona U.S. attorney's office, argues that the Murgea comment should not be taken out of context. "
What people don't understand is that Napolitano only made the final decision [not to proceed]. People don't appreciate the process behind a legal decision. Other attorneys here looked at this. In all, five legal minds considered it. We had probable-cause problems."

She claims that under Napolitano, the Arizona U.S. attorney's office has a record second to none in prosecuting child-molestation cases. From July 1993 to July 1995, the office has prosecuted 249 cases involving child molestation and sexual contact with minors. Many of those cases concerned sexual abuse of boys by men.

COPYRIGHT 1996 News World Communications, Inc.
COPYRIGHT 2004 Gale Group

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