PROSECUTION OF AN INFORMATION HIGHWAY PATROLMAN
Lorne Shantz looks like a cop, even out of uniform. He's so fresh-scrubbed he could have walked a beat in Mayberry, but instead he got a job as a patrol officer for the Arizona Department of Public Safety.
In his 14 years with DPS, his worst offense was waiting a day to report that he'd dinged a rim on his motorcycle. Shantz spent his career on the road, but he was also a pilot, and he most wanted to be in the air. For years he volunteered his own time to fly DPS planes--including the one that carries the governor. Not bad for an eighth-grade dropout. Shantz was honest and hardworking, and those traits extended to his spare time. Around DPS, Shantz was known as a computer geek. Many of his fellow officers belonged to the Wish Book, a computer bulletin-board system Shantz operated out of his home for years. Instead of cork and thumbtacks, a computer bulletin board uses keystrokes and a modem to post and receive messages, games and other files--including, in the Wish Book's case, an adult-only section featuring Playboy-style images.
Shantz required anyone who wanted adult access to send him a copy of his driver's license as proof he was over 18. Shantz is such a nice guy that if someone was reluctant to send a copy of his license, he'd meet him for coffee instead.
On the morning of Tuesday, November 29, Shantz left his sleeping wife in their little red-brick house with the lace curtains in the window. He was southbound on I-17 just past McDowell Road, when his sergeant radioed him to report to headquarters. Shantz assumed he would be asked to do a routine next-of-kin notification for someone killed in a traffic accident.
Instead, a DPS investigator was waiting to read him his rights. His crime? His colleagues said they had found obscene images on the Wish Book--bestiality, sadomasochism, child pornography.
Shantz was horrified--and surprised. By the end of the day, police had seized his computer equipment and rifled his wife's underwear drawer. Shantz was immediately suspended from his job. His picture was all over the evening news.
He was indicted by a grand jury on March 30 on 17 counts of possession and distribution of obscene materials and three counts of possession and distribution of child pornography. He was fired by DPS the same day for bringing shame to the agency by "knowingly" operating a computer bulletin board with "obscene materials which included minors engaged in sexual contact."
Shantz was three years away from retirement and a pension. That's gone, and now DPS has made certain he won't get unemployment benefits. He's selling off his computer equipment piece by piece to pay his legal bills. Nowadays, when Lorne and his wife, Jennifer, venture out, the neighbors look the other way.
Shantz's defense is simple. With an estimated 40,000 dirty pictures--and maybe as many as a million files on the entire Wish Book--Shantz says he had no idea allegedly illegal images existed on CD-ROMs he had purchased and added to the Wish Book.
"If the library takes in 1,000 books, I don't think it's realistic to expect the librarian to read every page of a book," he says. "And if something's inappropriate in there, are we going to go arrest the librarian?"
In this case, we are.
Judging from the zeal with which DPS and the Maricopa County Attorney's Office are pursuing Shantz, you'd think they were intent on keeping the ranks squeaky clean. But you need look no further than the investigator who busted Lorne Shantz to realize that is not the case.
Maricopa County Attorney Rick Romley held a press conference the day after Shantz's indictment to announce that his office was "cutting new ground" in the area of illegal distribution of materials through computers. The indictment, he said, would set legal precedent. Not to mention enhance Romley's political aspirations.
All that remains to be seen, although the case is looking flimsier all the time.
Despite the "new ground" cut by Romley, a computer-literate third grader can still beckon images of people screwing animals--and vice versa--through the Internet. At least Lorne Shantz's Wish Book was accessible to adults only. And it's still possible to order dirty CD-ROMs out of reputable computer magazines available at family bookstores. There's been no word about possible criminal action against The Market Place, the St. Louis mail-order firm that sold Shantz at least some of the offensive CD-ROMs.
Shantz was indicted March 30, but DPS says it didn't finish its investigative report until June 13. Even though the prosecution was required by law to provide the police report to the defense within ten days of the arraignment, which was May 9, Shantz's attorney, Peter Balkan, says a copy wasn't made available to him until June 16.
And although New Times made requests under the public-records law to both DPS and the County Attorney's Office in May, not a single document has been released. Gail Thackeray, the original prosecutor in the case and the county attorney's much-touted computer crime expert, refused to speak at all.
So descriptions of the case against Lorne Shantz are based largely on the search warrant and indictment filed in court, along with motions filed by defense attorney Balkan.
The Shantz case may be the first of its kind in Arizona, but national computer law experts say busts like this have been taking place all over the country for years. Romley is hardly blazing trails.
You can't turn on the evening news without learning about yet another adventure in cyberspace. Last July, a Memphis jury convicted a husband-and-wife team from Silicon Valley on obscenity charges stemming from an adult bulletin board they operated. Last month, a New York judge ruled that Prodigy, one of the largest on-line services in the country, is a publisher, rather than a passive distributor of information, and is therefore responsible for information passed on by its users.
Earlier this month, the U.S. Senate passed a bill that would impose fines and prison sentences on people who distribute sexually explicit material via computers. Senator James Exon, a normally mild-mannered Democrat from Nebraska and sponsor of the Communications Decency Act, came up with the sound bite of his career: "I want to keep the information superhighway from resembling a red-light district." Critics argue the bill limits free speech and would be impossible to enforce, because cyberspace is international and because the data are so voluminous. If Shantz's little bulletin board could contain a million files, imagine the capacity of a network like Prodigy, which has millions of users.
And they wonder why anyone would bother with Lorne Shantz's Wish Book, beyond warning him that there were a few files he'd better remove--or else.
Rick Romley and DPS may not know enough about computers to recognize the relative insignificance of Shantz's alleged indiscretions--after all, he's no porno kingpin; his entire Wish Book operation was not even breaking even.
But Romley's cyberprosecutor, Gail Thackeray, surely knows. Thackeray has built a national reputation as a computer crime expert by appearing on panels and getting her name in the newspaper, first with the Arizona Attorney General's Office and now at the Maricopa County Attorney's Office.
In 1990, as an assistant AG, she was involved in a national telephone fraud case out of the Phoenix U.S. Attorney's Office called Operation Sundevil. Since then, she's built herself another reputation--for blowing cases out of proportion.
One local law enforcement veteran says, "She talks a good game, but I don't know what she knows."
Lorne Shantz keeps photographs of himself in uniform around his house. They compete for wall space with wedding pictures; Lorne and Jennifer were married a year on May 21. Shantz is 39. He's sweet and lanky, and his vernacular tends toward "Jiminy Cricket!" and "Daggum!" An occasional "pissed off" or "sorry turds" sneaks out--the "sorry turds" epithet reserved for the DPS brass who fired him.
Sure, he's looked at pictures of naked women, but he never liked the hard stuff like bestiality or sadomasochism or child pornography. And that's certainly not why he started the Wish Book.
Shantz bought a computer in 1987 because his brother had one and it was neat. He bought it to play games on, and signed onto bulletin boards to download new games, and soon he was thinking about starting his own board. The Wish Book began as an electronic catalogue. Shantz used it to sell computer equipment in an effort to support his increasingly expensive habit.
And it was a habit. "When you realize that you can communicate with anybody in the world, it's heady stuff," he says. "It's addictive. It's power. It's incredible."
He operated the bulletin board in his spare time, and as the computer industry grew, so did the Wish Book. It got too big for Shantz. In 1991, he handed over the catalogue component of the board to a friend he'd met through the bulletin board, Bob Barbee. Shantz retained oversight of the part of the bulletin board that allows people to communicate via e-mail and the uploading and downloading of files that hold games, text--even pictures.
The privacy inherent to home computers makes them a perfect tool for adult entertainment, and at the urging of many of his users, Shantz created an adults-only section on the bulletin board.
Users uploaded files containing pictures they'd gotten from other bulletin boards, or scanned into their computers themselves. The files went into a private holding area, and Shantz or one of his co-sysops (computer lingo for systems operator) would review each picture to be sure it wasn't obscene, then transfer the file to a section where adult users could access it. Obscene images routinely showed up, even though Shantz says he posted messages warning users not to upload them.
"I specifically stated, 'We do not want bestiality, we do not want child pornography.' My interpretation of the law was that it was illegal. We didn't want it," Shantz says.
Then Shantz got the idea that would cost him his career.
He bought a CD-ROM player. CD-ROMs look just like the CDs that have made your cassette-tape collection obsolete, but they hold a tremendous amount of information. For example, you can fit an entire year's text of the Arizona Republic, Phoenix Gazette and Arizona Business Gazette on a single disc.
You can also fit about 5,000 graphic images on a disc. That's a lot of dirty pictures. Shantz saw an ad for some commercially produced "adult" CD-ROMs during an on-line conference for bulletin-board operators. He ordered a few discs, loaded them into the machine, and that was about it. "I looked at several hundred pictures," Shantz recalls, ". . . looking to see if they were what I thought they were, and, indeed, it appeared to be the Penthouse/Playboy-type pictures."
He blocked out images of a couple of women he thought might be under 18, then left the CD-ROMs alone. He says he didn't need to look further; the discs were advertised as "bulletin board system ready," which means the directories are set up and the programs are virus-free. Shantz also assumed that meant the materials on the discs were legal.
Bob Barbee, one of Shantz's co-sysops, says, "We accepted the CD-ROMs from the company we purchased them from as being bulletin-board-ready and legal. . . . Since it was a part-time job for all of us taking care of this board, none of us took the time to review all the files on those CD-ROMs."
Lance Alexander was the sysop who handled the adult materials for about a year before Shantz's November bust. He didn't deal with the CD-ROM files, but says he reviewed about 60 new files a day from the Internet. He had strict orders from Shantz: "Anything that looks like a child--get rid of it." He says Shantz never mentioned bestiality specifically, but "I've known Lorne for a long time, and I know his tastes," and they don't include animals, hermaphrodites or sadomasochists.
Alexander shares those views. "People having sex with chickens is sick," he says.
By last year, the Wish Book had grown into one of the largest bulletin boards in the Valley. About 3,500 people were signed on as users; Shantz says about 400 were contributors. Initial access was free. Users wanting to peruse any of the CD-ROMs (other, nonadult ones were available, too) were required to pay $25 to $50 a year. Shantz also offered access to the Internet for maximum contributors.
Peter Balkan, a Phoenix defense attorney who is now representing Shantz, was one of many local lawyers who used the bulletin board.
After years of running the bulletin board, Shantz says, he was finally close to breaking even last fall. Contributions were approaching $1,000 a month, and he was only about $5,000 in the hole from phone bills and equipment upgrades.
Shantz operated the Wish Book out of a closet-size bedroom in his home. The setup was hardly glamorous. At least seven computers and other hardware shared the room with Sydney, the Shantzes' gray parrot, and Sydney's own hardware--a large cage and wooden branch that reaches out of the cage and across the room. Even without the computer sales business, the Wish Book took up a lot of time; Shantz estimates he spent a half-hour each morning, two hours each night and most weekends working on it. It's hard to imagine why anyone would work so hard for what appears to be so little. Shantz says it was a labor of love. "There was great satisfaction in the fact that I was making a lot of other people happy. They had a place where they could come to meet."
Still, the guy was a newlywed, and his wife wanted to see him once in a while. He began to think he might like to shut down the Wish Book, but he was relying on contributions to pay off his equipment. He was frustrated.
Shantz walked into Department of Public Safety headquarters looking for his sergeant and found Officer Andy Vidaure waiting for him. Shantz recognized Vidaure--they used to drive motors (DPS motorcycles) together, and, more recently, he'd seen him on the occasions he'd flown the governor around. Vidaure had once been assigned to the governor's security detail. But now Vidaure was working criminal investigations, and he had a hot case.
"Hey, Andy, how ya doin'?" Shantz recalls asking, tickled to see an old acquaintance. Vidaure didn't smile.
"Andy goes, 'I need to inform you that you're being investigated for distribution of obscene material.' And I laughed. I said, 'Get outta here!'
". . . Andy said, 'No, I'm not kidding.'" Shantz thought he was going to pass out. He was marched into an office, stripped of his gun and badge and read his rights. He couldn't imagine what they'd found, he says--he was sure he'd kept the Wish Book clean.
Vidaure had a search warrant, and he was headed next for Shantz's home. The cops searched the house, looking for signs that Shantz was a child pornographer, he assumes. They took his computer equipment--even the keyboards. But the oddest thing they took was a slim white volume titled "Our Wedding Memories," which was sitting in a basket in the living room, near the fireplace.
Maybe the cops thought the book held kinky honeymoon secrets. When they looked--if they looked--what they found was Jennifer's neat script, describing her shower gifts, the colors of her wedding flowers and memories of the rehearsal dinner.
The DPS searchers wouldn't let Shantz enter his own house, so he was forced to change into civilian clothes in the carport, then headed over to Jennifer's office at Rio Salado Community College, where she's a graphic designer.
"I fell apart," Shantz recalls, his eyes brimming with tears.
The worst may be over for Shantz. It's unlikely he'll spend a day in prison.
The police kept Shantz's computer equipment for weeks, and out of what Shantz estimates to be almost a million files on his bulletin board--40,000 of which he classifies as adult--they say they found 73 so-called obscene images.
Among the images, according to the indictment, are pictures of women performing various sexual acts with dogs, pigs and horses; nude men and women defecating and urinating on each other's bodies and into each other's mouths; and females under the age of 18. All of the images were found on the CD-ROMs, not Shantz's own hard drive.
That's grotesque. But the cops had expected to find much worse. According to the search warrant, authorities had been tipped off that Shantz was running a computer bulletin board that contained child pornography, stolen software and that he "was providing criminal justice information to potential criminal suspects."
A motion filed by Balkan includes testimony from DPS officers which indicates that police were trying to find child pornography on the Wish Book as early as December 1993. They couldn't, even though they scoured the files for at least two hours on one occasion.
That's surprising, because DPS had access to a team of computer experts from the Phoenix and Chandler police departments--not to mention Gail Thackeray. According to a transcript filed with Balkan's motion, Thackeray was present at the December 1993 on-line kiddie-porn search.
The Arizona cops needed help. In August 1994, DPS investigator Andy Vidaure called David Swartzendruber, a piracy investigator for Microsoft in Redmond, Washington.
According to Microsoft spokesperson Christine Santucci, Swartzendruber signed onto the Wish Book using Vidaure's password and searched for pornography for the cops. At the same time, he looked for software that might have been stolen from Microsoft. Within days, he'd mailed Vidaure discs containing images of bestiality and sadomasochism, along with a videotape documenting the downloading process.
Santucci insists Swartzendruber didn't hack his way into the bulletin board, but instead simply used the password to gain access and managed to locate in days what for months had eluded the Arizona law enforcement community.
"The police department didn't have the ability to do this themselves, and that's why they asked him to look [for pornography] at the same time he was looking at the Microsoft software," Santucci says. ". . . They represented to him that they didn't have the resources nor the equipment to download this."
That's ridiculous. If the cops were able to sign onto the Wish Book, they had the equipment necessary to download graphics.
As for stolen software, all Swartzendruber found was a "mouse driver"--a program so insignificant it's often given away. Microsoft wrote to Shantz and asked him not to distribute the mouse via his bulletin board. He hasn't.
Balkan says he may argue in court that it was illegal for Vidaure and Microsoft to use a covert password without first obtaining a search warrant.
Santucci insists Microsoft was just being a good corporate citizen, but the company's involvement raises concerns among cybernauts.
Mike Godwin, counsel for the Electronic Frontier Foundation in Washington, D.C., says, "The [Shantz] case raises issues of the extent to which a private company with private investigators should act like a private police force or like an arm of the state."
In December, not long after Lorne Shantz was busted, then-DPS director Rick Ayars made an in-house video to remind his employees that dirty cops would not be tolerated. He mentioned Highway Patrolman Ron Singleton, who had been arrested the previous month with 173 pounds of marijuana. But he must have been thinking of Shantz, too, when he said, "We're gonna follow through and pull the string as far as it will [go]."
According to the letter he received March 30, Shantz was fired for the following DPS rule infractions:
Any act of immorality which would bring the employee into disrepute or reflect discredit upon the agency.
Any other failure of good behavior or acts either during or outside of duty hours which are incompatible with or inimical to the agency interest.
So why is Officer Andy Vidaure, the lead investigator in the Shantz case, still employed by DPS?
In August 1991, Peoria police received a complaint from a woman who claimed she was receiving harassing phone calls. She suspected two DPS cops she'd met in 1989 during a short stint as an undercover drug informant ("Frisky Cops, Phantom Copy," March 2, 1994).
The police were never able to find the source of the calls, but in the fall of 1991, DPS launched an internal investigation into the woman's claims that she'd had sexual relations with DPS officers. The final report is so graphic that some parts could be posted on an adult bulletin board. Other parts are just plain funny.
The following is taken from the report:
In July 1989, the woman was working as a waitress at a sports bar in Peoria when she met DPS officers Andy Vidaure, Andy Vasquez and Fermin Torrez. She was supposed to help them conduct an undercover drug operation, but with the exception of some cocaine the woman bought and passed on to Vasquez, no drug information was ever provided.
That's not to say that the cops didn't spend a lot of time with the woman. She says she was good friends with Torrez, and had sex with both Vidaure and Vasquez. The men concur.
Vasquez and the woman had sexual intercourse the night they met. They had an affair that lasted until January 1990, although the woman told investigators that they continued to see each other after the affair officially ended.
Vasquez admitted he drove his state car to the woman's house on the occasions they had sexual relations, but said he didn't consider himself on duty at the time.
Even though the woman purchased cocaine in August 1989 and gave it to Vasquez in her capacity as a drug informant, investigators wrote, "[Vasquez's] understanding was that [she] was not an informant and was not directly involved in the information they were trying to develop."
Vasquez was reprimanded for "inefficiency" because he turned the cocaine in as evidence, but he failed to file a report about it. He was also reprimanded for "misuse of state property" because he drove his state car to the woman's apartment for "non-job related purposes."
He was suspended without pay for seven days.
The woman said Vidaure came on to her in July 1989, telling her that "his wife had just had a baby, he couldn't find his girlfriend, and he 'wanted to get laid' that night." But she resisted his advances until after she and Vasquez had broken up and Vidaure began to visit her at work.
Vidaure and the woman had sexual relations a few times in 1990. The relationship continued even after Vidaure was reassigned in August 1990 from criminal investigations to executive security, the elite division that protects the governor.
The woman reported that she had intercourse with Vidaure once, had "kissing or whatever and blow jobs" with him four times and that they showered together twice.
Vidaure admitted he drove his state car to the woman's house on at least six occasions and that he had sexual contact with her five times. From the investigators' interview with Vidaure: "Vidaure told [her] on one occasion that his idea of the 'ideal girlfriend' would be the type of girlfriend where he could go to 'get a blow job and go home.' Vidaure stated that [she] became the 'ideal girlfriend.'" On another occasion, Vidaure reported that "they showered together, had oral sex and 'barely' had intercourse."
Maybe that's why he was barely punished. Like Shantz, Vidaure was charged with ". . . failure of good behavior or acts either during or outside of duty hours which are incompatible or inimical to the agency interest."
And misuse of state property. His disciplinary letter explained, "On several instances from April 1990 to August 1991, you used your state vehicle to drive a female subject, a non-departmental employee, to her apartment for non-job related purposes. On one occasion, July 25, 1991, you used your state vehicle to visit this same individual at her apartment while on duty."
Vidaure's punishment: four days off without pay.
The woman also told police she had sex with yet another DPS employee, Officer Wence Camacho. Camacho admitted that he drove his state car to the woman's home to have sex on more than one occasion in 1991. On one Friday evening in November 1991, Camacho and his brother visited the woman. Excerpts from the investigative report tell the story best:
"Camacho stated when he went over to [her] apartment that evening, he had intended to introduce [her] to his younger brother, who was single. His goal was to 'get rid of' [her]." Camacho had married since their last encounter.
"When asked how getting rid of [her] evolved into having sex with [her] and watching while she had sex with his brother, Camacho said, 'I don't know.'" Camacho forgot his DPS-issued duty weapon and a holster at her apartment, but successfully retrieved the items the following day.
Camacho's punishment? Two days off without pay.
Vasquez and Camacho have no comment. Vidaure says his situation is nothing like Shantz's. "There's a significant difference between being alleged to commit felony acts and violating administrative policy. . . . You're mixing apples and oranges."
Except Lorne Shantz denies knowing of the obscene images on the CD-ROMs he purchased. Vidaure and his fellow officers freely admit they used state vehicles while wooing a purported drug informant.
When told of Vidaure's indiscretions, Shantz says, "I'm speechless. . . . I guess I'm in a totally different world, because I was little Mr. Policeman doing my thing, and I guess I'm just pretty naive about what's happening out there."
Balkan, who was also unaware of Vidaure's exploits with the drug snitch until New Times told him about them, doesn't mince words.
"They own Vidaure," he says. "I always wondered why, you know, Vidaure seemed to have no compassion or conscience or anything concerning Lorne, and that just pretty much explains it. He probably is bitter about his own situation and also, he does what they say."
Despite everyone's best efforts to pull the string on Lorne Shantz, the prosecution faces an uphill battle. It'll have to prove the images in the indictment are obscene by community standards. And both local and national obscenity-law experts say it'll have to prove that Shantz knew the images were there.
Local obscenity lawyer Richard Hertzberg says, "When the state says they don't have to prove intent, they're wrong. They always have to prove intent."
Steve Gendler is a retired DPS major now working as a town marshal in Fountain Hills. He's been a user of the Wish Book since the late Eighties. In all that time, he says, he never got any indication that Shantz intended to keep kiddie porn or other obscene materials on his bulletin board.
"It does seem odd that if he's gonna post illegal items, that he would invite police officers and fellow DPS officers to participate in the board," Gendler observes.
Shantz was indicted under state law, but obscenity-law experts say federal constitutional law applies in this case--specifically, a U.S. Supreme Court decision, Smith v. California, in which it was found that a bookstore owner was not responsible for knowing what was in all of the books he was selling.
The Electronic Frontier Foundation's Godwin says, "Smith v. California says that in order to be prosecuted for the distribution of obscenity, the government has to prove that you knew about the material. . . . I think there are strong similarities between bulletin-board systems and bookstores."
Did Shantz know? He says he never opened the offending files because he was told the CD-ROMs were "bulletin board system ready." And his initial perusal of the files was okay.
Balkan admits that one of the photos mentioned in the indictment--he describes it as a woman holding a horse penis to her mouth--is also on the hard drive of Shantz's computer, which police seized in the raid and returned in January.
That could be proof that Shantz loaded the image onto his hard drive and viewed it there. But Shantz claims he never saw the picture, and has no idea how it got onto his hard drive. It could have been uploaded by a user or the Internet. The person reviewing the files might have missed it.
Balkan isn't eliminating the possibility of evidence tampering. He says, "We do not know what they did to that computer, what they performed, whether they used it or not. I was told verbally that all they did was make a mirror-image back-up. Our inspection of the equipment when it was returned was contrary to that." In any event, it was one file in a million.
The Wish Book reopened January 12, with only two phone lines and no graphics--adult or otherwise. Shantz has plenty of time to tend to the board these days, but he says, "My heart's not in it."
Instead, he focuses on his pending criminal case. It's getting more bizarre every day.
Last Thursday, Maricopa County Superior Court Judge Susan Bolton ordered that the case be presented to a new grand jury. Prosecutor Gail Thackeray had made a big mistake. Shantz had agreed to waive his Fifth Amendment right to silence and testify before the original grand jury that met in March and later indicted him. Even though she had a note to remind herself, Thackeray forgot to call Shantz to the stand. She realized her error after the grand jury had heard all of the other testimony and evidence and had deliberated. The grand jury came back with its sealed decision (an indictment) and learned of Thackeray's mistake; the grand jurors decided they wanted to hear from Shantz and agreed to dismiss their indictment and meet at a later date to hear his testimony.
They did just that, and came back with another indictment.
Shantz and Balkan were not informed of this mishap, so, in effect, Shantz testified before a grand jury that had already indicted him once.
Balkan didn't think that was fair. Neither did Judge Bolton. So now a new grand jury will hear the entire case again.
With all of the mishaps in this case, you'd think the County Attorney's Office would have soured on it. That's not so. In fact, it's stepped up the attack. Thackeray has been replaced as prosecutor by Vince Imbordino, one of the office's top attorneys. After the indictment was dismissed, Balkan gathered in the hallway outside the courtroom with Lorne and Jennifer and a dozen friends whom Lorne has met through the Wish Book. Balkan warned that Shantz will almost certainly be indicted again, but at least this time he will get his opportunity to testify in the proper context.
In his 21-year career as a defense attorney, Balkan says, he has never allowed a client to testify before a grand jury. But Lorne is different, he says. "Lorne's not guilty of a darn thing."
"Amen!" his friends cry. "Hear, hear!
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