POLK COUNTY, Fla.—As reported by AVN yesterday, Polk County Sheriff Grady Judd somehow convinced Polk County judge J. Michael McCarthy that the state was within its rights to issue an arrest warrant and extradition request for Colorado resident Philip Greaves, who had gained national notoriety as the author of "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct," which Amazon had offered for sale.
In the aftermath of the Amazon scandal—the online retailer had ceased selling the book by the time Polk County got involved—Judd apparently decided to gain a little extra infamy himself by directing one of his detectives to order a copy of the book from Greaves and have it sent to a Lakeland, Fla. post office box. After it was received, the sheriff leapt into action, with the result that Florida detectives were sent to Colorado to escort Greaves back to the Sunshine State after local authorities arrested him Monday at his Pueblo home.
Appearing on CNN yesterday, Judd was unapologetic about his actions and expressed his conviction that they are consistent with Florida law.
"We didn't do this in a vacuum," Judd told CNN, adding that his office had consulted with the State Attorney's Office and other legal experts before acting.
But attorney Larry Walters told AVN today that the legal advice received by the judge may have been wanting, and could actually doom the prosecution from the get-go. In fact, he said he would not be surprised if a federal judge steps in and orders Greaves released before a trial could even begin. Greaves could also wind up suing the state and the sheriff after all is said and done. How could this be evenly remotely possible?
The problem, Walters said, is contained in the very statutory language that Polk County is using to justify the arrest and extradition. Setting aside a possible entrapment argument by Greaves—Polk County detectives called Greaves to order a copy of the book, and then offered him an extra $50 for his last personal copy when they found out he had no others available—it looks as if Judge McCarthy used the wrong Florida statute in charging Greaves with a third-degree felony, which was required in order to have him extradited. An extradition is not possible for a misdemeanor charge, Walters said.
Specifically, Greaves was charged under 847.011(1)(C) of the 2010 Florida Statutes with the distribution of obscene material depicting minors engaged in activities harmful to minors.
However, the language of that statute plainly states, “A person who commits a violation of paragraph (a) or subsection (2) which is based on materials that depict a minor engaged in any act or conduct that is harmful to minors commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
Paragraph (a) of the statute is a very long paragraph that includes every possible variation that a human being could engage in with respect to the distribution of allegedly obscene or lewd material, and includes the written word, but violating it only rises to the level of a misdemeanor for a first offense.
Subsection (2) refers to the possession, custody, or control of obscene material, and likewise contains a written word component, but also never rises beyond a misdemeanor for a first offense.
The only section of the relevant statute that does provide for a felony charge for a first offense is the one Greaves was charged under, but the operative word in that section—unlike the other sections or subsections—is “depict,” which refers to a visual image only, and probably one that involves an actual human being only. Greaves' book reportedly contains no such images.
In other words, for Polk County to charge Greaves with a felony in order to attain an extradition order, the only Florida statute that would suffice was 847.011(1)(C). But the (1)(C) part only pertains to visual depictions, and not the written word. Greaves could have been charged under 847.011(1)(A), but then it would only have been a misdemeanor, and he would have had to travel to the state for him to be arrested and prosecuted.
This apparent manipulation by Florida law enforcement of its own statutes could undermine the case and lead to even bigger headaches for the County.
The story, said Walters, was a national one even before Judd stuck his nose into it, which he probably did for the very fact that it was national. But the national appeal of such a case could also provide Greaves with a legal defense team that he could never in his life afford. He will probably be forced to use a public defender at first, said Walters, but soon, he expects to see a team of top drawer First Amendment lawyers descend upon the state and offer Greaves their services.
“This could even be the kind of case that causes a lawyer like Lawrence Tribe to come down and lend his expertise,” said Walters, who has been fighting the good fight in Polk County for more than 20 years.
Time will tell if it even comes to that, or whether Polk County has already overstepped its authority to such an extent that a federal court will step up sooner rather than later and slap them hard for using the wrong law to reach across state lines to grab Philip Greaves.