News Column

NM High Court Tosses Case on Profs' Website Promoting Prostitution

Feb. 7, 2013

Tom Sharpe

The New Mexico Supreme Court on Wednesday tossed out the highly publicized case of two university professors accused of promoting prostitution on the Internet.

F. Chris Garcia, a professor emeritus of political science at The University of New Mexico, and David C. Flory, a physics professor at Fairleigh Dickinson University in New Jersey, were involved with a website called Southwest Companions that matched men with women who offered sex for money.

Flory, 70, was arrested in June 2011 after Albuquerque police agents spied on him at his house on Los Arboles Lane on the north side of Santa Fe. Garcia, 72, was arrested a few days later.

In August, 2nd Judicial District Judge Stan Whitaker dismissed the cases, finding that a website does not constitute a "house of prostitution" under state law.

On Wednesday, the five high court justices deliberated for 25 minutes before announcing, without explanation, that Whitaker's ruling "remains in effect."

Garcia's attorney, Robert Gorence, and Flory's attorney, Theresa Duncan, told the Supreme Court that the 1981 state law on prostitution makes no provision for online solicitation because the Internet did not exist at that time. (A bill pending in the state Legislature would amend the law on prostitution so that the Internet is included.)

The defense attorneys also argued that the District Attorney's Office was late in filing its petition challenging Whitaker's decision.

And Duncan warned the justices about the First Amendment implications of restricting speech. "We're not interested in criminalizing the tools of prostitution -- like letters, the Internet or phones," she said.

Neither Garcia nor Flory was in court Wednesday.

Michael Fricke, a deputy district attorney for Bernalillo County, argued that a website does qualify as a "place" under the state law, just as a motel, massage parlor or strip club would. He also said that because his petition to the Supreme Court was not a formal appeal, the 30-day time limit for appeals did not apply.

The justices peppered the three lawyers with questions about whether a website, telephone or even a movable bulletin board would qualify as a "place" under the current state law.

"If this were an advertisement in the Albuquerque Journal, would Judge Whitaker [have found] that's not a place?" Justice Richard Bosson asked Fricke.

"Are you saying there are so many views [of what a place means] that Judge Whitaker exceeded his authority?" asked Justice Barbara Vigil, a former Santa Fe district judge appointed late last year to the Supreme Court. "Should he have conducted an evidentiary hearing?"

Fricke answered yes to Vigil's questions, adding that Whitaker ruled too soon and wrongly.

When Court of Appeals Judge Michael Bustamante, sitting in for Justice Charles Daniels, asked if it would make any difference if the website server were in another state, Fricke admitted this might raise jurisdictional issues.

Justice Edward Chavez said, "I don't read 'bricks and mortar' into that statute."

But Chavez was receptive to Gorence's argument that the District Attorney's Office waited 87 days to file its challenge of Whitaker's ruling; he said it should have done so in 30 days.

After the ruling, Gorence said Garcia, whose user name on the website was "BurquePops," had been targeted because of his status as a former interim president of UNM.

Garcia "said he is very happy," Gorence said after speaking with his client on the phone. "Joyous would really be the word because this witch hunt has finally ended. ... This has been hanging over his head for a full year after they charged him, and then they dropped all the charges. ... It took another three months after Judge Whitaker said they couldn't proceed to even file this petition. ...

"How long can they delay? How long can they wait? How long can they keep someone twisting in the wind on a case in which he was factually innocent of everything?"

Gorence said the statute of limitations has passed for other charges to be brought against Garcia and Flory. But Fricke said the District Attorney's Office is evaluating whether to bring other charges.

Source: (c)2013 The Santa Fe New Mexican (Santa Fe, N.M.) Distributed by MCT Information Services

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