"He's 40 - She's 17!"

James Gilbert
2008-CF-018238-A-O
Solicitation of Minor via Computer (10 counts)
Click here for previous CourtWatcher blogs on this case.

Gilbert and his attorney, Neal McShane, were back in court on Friday, scheduled for yet another Motion to Dismiss.  Mr. McShane vigorously tried to convince Judge Lubet for the umpteenth time that the text messages sent to the defendant by the victim (who was 17 at the time) should be retrieved and be admissable at trial.

Mr. McShane wanted the judge to allow his computer expert to examine the victim's parents' home computer where the mother allegedly viewed the messages on their cell phone provider's website. The issue of invasion of privacy was discussed at length.

After listening to the attorneys argue, at times quite heatedly, whether or not the messages could (1) even be retrieved after nearly two years, and (2) even be admissable at trial, Judge Lubet denied McShane's motion. The judge, for the umpteenth time, told Mr. McShane that her texts to the defendant are not relevant because, as he emphatically stated, "He's 40, she's 17! It's still illegal!"

Judge Lubet would not permit a fishing expedition at the expense of the victim's family. He refused to impose sanctions (as requested by defense counsel) on the State for their lack of technical expertise in retrieving her texts when the charges came to light in 2008. As unfair as it might seem to some, because the victim was a minor, anything she wrote to Mr. Gilbert is not admissable at trial.

As the hearing reached the 60 minute mark, Judge Lubet asked Mr. McShane what his client was going to do - go to trial Monday or plead to the charges. When he replied that Mr. Gilbert hadn't decided yet, the judge informed him that "inaction results in other people making decisions for you." It was very clear that there would be no more delays.

Mr. Gilbert and his attorney went out to the hallway to discuss his options.

After taking about an hour while other matters were handled, the defendant returned to the courtroom to enter a plea of "no contest" to all 10 charges (each one could be punishable by up to 5 years in prison). There was no agreement with the State. Judge Lubet did indicate he would be willing to grant a bond for Mr. Gilbert while the case was appealed.

Sentencing was scheduled for April 19th at 1:30pm to give the Department of Corrections time to prepare a pre-sentence investigation.

Gilbert's fate will then rest with the judge.