Wednesday, Feb. 11, 2004 | 11:12 a.m.
Testimony by Metro Police officers during a hearing on the constitutionality of Clark County's anti-handbill ordinance has raised questions about how the department investigates prostitution cases, according to ACLU officials and attorneys.
Two Metro officers testified last week before U.S. District Judge Lloyd George that officers videotape some of the solicitation for prostitution stings that they conduct, and that those tapes are later erased or recorded over.
Gary Peck, executive director of the American Civil Liberties Union of Nevada, said that erasing the tapes and not making them available to defense attorneys is destruction of evidence and a violation of the 14th Amendment.
"In an effort to defend the indefensible they've wound up opening up a whole other group of constitutional problems," Peck said. "It is clear that sooner or later someone will challenge the convictions in these cases."
Capt. Stavros Anthony, who heads Metro's vice bureau, said that detectives normally set up a television monitor in a hotel room adjacent to where the sting is taking place to watch out for the undercover officer who meets with outcall dancers.
"We don't tape about 98 percent of them," Anthony said. "We do monitor for officer safety, but the only time we actually tape is for training purposes when we have a new detective working the operation. We use those tapes to point out mistakes they make, and the tapes are taped over."
Peck said that the two officers testified that tapes are regularly made during prostitution stings.
"There are serious questions raised by the testimony that these tapes are made and then either turned over to a supervisor or taped over with no policy to preserve them, and no notice to any defendants that these tapes exist," Peck said. "The department obviously now understands that it has been caught with its pants down and is scurrying around to find some sort of explanation that will let it off the hook."
Peck questions why Metro doesn't make video records of all such stings for evidence, but Anthony said it is not needed.
"There is no reason for us to tape other than for training," Anthony said. "We don't need videotape for evidence."
Ralph Baker, acting Clark County public defender, said that as a defense attorney he would consider any videotapes evidence in a solicitation case, and erasing or taping over such tapes would constitute destroying evidence.
"A video is often the best evidence of a crime," Baker said. "Videotapes are always something that the prosecutors have, but when we need them they always seem to disappear.
"In these kinds of cases a lot depends on the john's disposition, and that could be shown on video."
Baker said his office does not handle many solicitation cases involving outcall dancers, because the dancers can usually afford to hire private attorneys. He added that public defenders pick up more cases involving those picked up on the street for soliciting prostitution.
Clark County District Attorney David Roger estimates that his office prosecutes hundreds of prostitution cases a year, and added that he has an open file policy.
"We provide everything that we have to defense attorneys, so that there are no claims down the road that evidence was not turned over," Roger said. "I'm not sure that our prosecutors knew of the existence of any tapes.
"The Constitution requires us to turn over exculpatory evidence, but not inculpatory evidence. I'm sure that the police felt any tapes were inculpatory."
Details about how Metro's prostitution stings work came out a week ago during a hearing in federal court in which two outcall service businesses, S.O.C. Inc. and Hillsboro Entertainment, challenged a county ordinance that would prohibit the distribution of handbills for commercial purposes. The hearing is expected to continue Thursday.
The 9th U.S. Circuit Court of Appeals has ruled that past attempts by the county to write an ordinance to prohibit the leafleting of adult entertainment along the Strip were unconstitutional.
During last week's hearing Metro officers testified that they had arrested several female dancers from S.O.C Inc. and Hillsboro Entertainment on solicitation charges.
Peck said that while he was concerned about what he called destruction of evidence in solicitation cases, he also questioned officers' reasons for detaining dancers if they asked certain questions of officers.
"Asking to see identification, airline tickets and to look around the room are all things that a reasonable person would do if they are taking precautions," Peck said. "What reason is there to detain and question someone if they are asking these questions?"
The officers' testimony came on the same day that a Justice of the Peace ruled that a separate Clark County ordinance targeting prostitution is too vague and is therefore unconstitutional.
Justice Court Judge Nancy Oesterle's ruled that the ordinance allowing police to charge people with "loitering for the purpose of prostitution" is unclear and gives police too much leeway in enforcing the law.
The ordinance says an officer may identify a person loitering in public for the purpose of prostitution if that person "repeatedly beckons to, stops, attempts to stop or engages persons passing by in conversation, or repeatedly stops or attempts to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture."
The ordinance is based on a Seattle law that has withstood arguments similar to Oesterle's, and the ruling will be appealed, Chief Deputy District Attorney Bill Kephart said.
"I think the ruling eliminates a big way to trap and ensnare people," Baker said. "It is a very open and vague ordinance."
Assistant Sheriff Mike Zagorski said that Metro continues to enforce the ordinance because it is being appealed by the district attorney's office. The ordinance that Oesterle ruled against and the actions of officers during sting operations are indications of a systemic problem, Peck said.
"If you believe the officers' testimony, their actions are precisely the kinds of improper behavior that Judge Oesterle expressed concern about in her ruling," Peck said.
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