Last edited: December 08, 2004

Charges Dropped In 2 Park Sex Cases

Decision Made After 2 Other Defendants Acquitted

Roanoke Times, September 24, 1999
P. O. Box 2491, Roanoke, VA 24010
Fax: 703-981-3204

Police tactics have been an issue at trial; juries must be satisfied that defendants "commanded, entreated or attempted to persuade" the officer to commit a felony.

By Laurence Hammack, The Roanoke Times

After being twice rebuffed by juries, Roanoke prosecutors have decided to drop charges against two of the three remaining defendants charged in a controversial crackdown on cruising in Wasena Park.

Attorneys for two men charged with soliciting undercover police officers for oral sex said Thursday they were told by Assistant Commonwealth’s Attorney Alice Ekirch that the charges will be dropped next week.

The decision follows two separate cases in which Circuit Court juries acquitted gay men after hearing arguments that the undercover officers were the ones who pursued the topic of sex during their conversations in the park.

"I definitely think the fact there have been jury acquittals ... had to play into their thinking," defense attorney Chris Kowalczuk said of the prosecution’s move. "It certainly played into our resolve to try the case to a jury."

As prosecutions in the Wasena Park operation wind down, four of five men who contested the charges so far have been successful.

Another 12 men pleaded guilty, but their suspended jail sentences were put on hold while they appeal the constitutionality of a state law that makes consensual oral sex a felony.

Prosecutors apparently plan to proceed with charges against the last of 18 men charged last November. Police said they began an investigation after Wasena residents complained about public sexual activity associated with cruising, or the practice of gay men gathering in certain areas in search of sex partners.

Ekirch referred questions about the cases to Commonwealth’s Attorney Donald Caldwell, who could not be reached for comment Thursday afternoon.

Court records show that jury trials have been canceled for Kowalczuk’s client, former Monterey Elementary School teacher Shane A. Wolfe, and James R. Daniels of Henry County. Both Kowalczuk and Ward Armstrong, a Martinsville attorney who represents Daniels, said Thursday they were told the charges will be officially dropped next Tuesday.

That’s when Daniels had been scheduled to go on trial. According to a transcript filed in Roanoke Circuit Court, evidence in Daniels’ case would have shown that the undercover officer initiated the conversation, then later asked him: "You want me to do you; you want to do me?"

Attorneys agree that’s not enough to show entrapment, which requires proof that police lured a suspect into a crime he was not predisposed to commit. But the police tactics have nonetheless been an issue at trial, where juries must be satisfied that the defendants "commanded, entreated or attempted to persuade" the officer to commit a felony.

"I don’t think he was a bad cop," Armstrong said of the officer who arrested his client. "But I think in his zeal to pursue the matter, he didn’t let the person [suspect] do the asking. He did the asking, and that’s just not solicitation."

Both Armstrong and Kowalczuk commended prosecutors for their decision to drop the charges.

"I think a lot of Don Caldwell, and I think he’s a fair prosecutor," Armstrong said. "I think he evaluated this case and decided that just because he doesn’t get a conviction in every case, that doesn’t mean justice isn’t being done."

Since the 18 men were charged with soliciting the felony of oral sex — a rarely enforced law in Roanoke — critics of the operation have complained to City Council, and a gay rights activist sent letters soliciting two judges, the prosecutor and the police chief in an effort to ridicule use of the centuries-old law.

Police and prosecutors have said their only goal was to curb blatant sex acts in the park. While there has been evidence of such activity in some cases, others produced no testimony of indecent exposure or sex acts of any kind.

In the only jury conviction to come from the operation so far, testimony showed that the defendant touched the officer’s groin and then began to unzip his pants after making a sexual offer. In that case, the jury recommended a 60-day jail sentence.

In the last remaining case, evidence is expected to show that the defendant, Victor Varin, touched the officer. "That’s the difference that leaps out at me," said Sam Garrison, the man’s attorney.

Unlike Armstrong and Kowalczuk, Garrison said he has was not informed by prosecutors Thursday that his client’s case will be dropped. Court records show it is still scheduled for a jury trial next month.

"Just because they’re throwing in the towel on the other two cases doesn’t change our case at all," Garrison said. "We’ve been preparing to try it and hopefully win it."

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