ATLANTA - If someone talks about committing a crime but never actually does it, how do you prove he attempted the crime -- really attempted it?
That was a key point in a Catoosa County prosecutor's argument to the Georgia Supreme Court on Monday morning. How the court's justices interpret the meaning of "attempt" may decide how they rule in the case of Dennis Cosmo, a man arrested four years ago in an online, "To Catch a Predator"-style FBI sting.
How the Supreme Court rules on Cosmo's case, meanwhile, could play an important role in other cases that are based on evidence compiled by the Northwest Georgia Internet Crimes Against Children Task Force. Ten such cases are set for trial in Walker County next month.
On Monday, Catoosa County Assistant District Attorney Alan Norton argued that the Georgia Court of Appeals should not have reversed Cosmo's conviction last year. Norton said the court misinterpreted the law.
Police arrested Cosmo in 2010 after he exchanged a series of emails, text messages and phone calls with Detective David Scroggins, one of the task force's undercover agents who was posing as a woman named "Amber." In this role, Scroggins told Cosmo that he had a 14-year-old daughter and that -- for the right price -- Cosmo could have sex with the girl. At first, Cosmo expressed interest in a series of emails.
After a local jury convicted Cosmo on five counts in 2010, though, the court of appeals ruled last year that he should not have been convicted on one of those counts. Concerning the other four charges, the court ruled that Cosmo deserves a new trial because the crimes may have been the result of entrapment.
Appeals Judge Michael Boggs wrote that a computer pornography charge against Cosmo should have been thrown out because he never actually talked to the non-existent girl, only the girl's parent.
But on Monday, Norton argued this is not the correct way to interpret the law. The code section in question reads that it is illegal to solicit a child online or attempt to solicit a child online. Telling a mother you want to have sex with their 14-year-old daughter is an "attempt" to solicit, Norton said.
"The 'Amber' persona was playing the pimp," he said.
The Supreme Court has until the middle of July to rule on this case. Its decision could affect several other cases that stem from the FBI task force, an operation already under scrutiny. Ken Hillman, the special agent formerly in charge of the operation, is under investigation because of accusations that he let a civilian participate in stings and arrest suspects.
Indictments from more than 20 cases in the Lookout Mountain Judicial Circuit show that members of the task force often posed as parents or stepparents, as Scroggins did in the Cosmo case.
Those cases could be in jeopardy if the Supreme Court agrees that a defendant cannot be convicted without communicating with a child -- or someone the defendant thinks is a child.
Cosmo's attorney, Adam Hames, argued Monday that his client never made a "substantial step" toward having sex with the 14-year-old girl. He said Scroggins introduced the idea of having sex with the child.
After a series of emails in which he expressed interest in having sex with the girl, court records indicate Cosmo backed off.
"I'm not too comfortable with the underage thing," he apparently told "Amber" about 20 minutes before his arrest.
Hames argued that his client should not be punished for his earlier conversations about having sex with the girl.
"We all say stupid things," Hames told the Supreme Court. "Whether saying those stupid things rises to the level of criminal activity is when there is a clear and present danger of action."
Contact staff writer Tyler Jett at 423-757-6476 or at firstname.lastname@example.org.