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Why the 'Dateline' predators were not charged

Abrams asks why men looking for underage sex were allowed to walk free

During "Dateline NBC's" recent hidden camera investigation, 19 were caught going to a suburban home where they thought they'd be meeting with sexually available teens.  Some made a run for it when they went into the kitchen and saw NBC's Chris Hansen waiting. 

One came into the house completely naked and sat down in the kitchen, where Hansen met him and kindly handed him a towel to cover himself up.  A rabbi was so upset at being caught that he even seemingly went after Hansen. 

But why aren't any of these guys being prosecuted? 

In Fairfax, Va. -- where the hidden camera investigation took place -- police say no crimes were committed. 

On Tuesday, Del Harvey from, who acted as a decoy in this operation, former Virginia State Prosecutor Tim McEvoy, and former federal prosecutor Matthew Yarbrough joined MSNBC's Dan Abrams to discuss why these men were allowed to walk free. 

To read an excerpt of their conversation, continue to the text below. To watch video from the 'Dateline' investigation, click on the "Launch" button to the right.

DAN ABRAMS: All right.  Tim, first let me start with you.  I mean it seems pretty clear that there are laws against even sending some of this material that they sent to the decoys, why is no one being charged? 

TIM MCEVOY, FORMER VIRGINIA PROSECUTOR:  Dan, I think the question is extremely legitimate.  And I think issue here is not whether the authorities are outraged or upset.  But the initial disgust that we all feel as members of the public has got to be tempered by the prosecutor because these cases often rise or fall as you know on intent, you know as seen through the filter of reasonable doubt.  And the prosecutors got to weigh all of the evidence, the jury is going to parse every little movement.  You're going to see professionals, as the piece showed, who are otherwise trying to show that they're good people, trying to throw substantial doubt...

ABRAMS:  But wait.  Tim, the law is pretty clear.  I mean let me just read from the law, all right.  "It is unlawful for a person 18 or older to use a computer for the purposes of soliciting someone he knows or has reason to believe is a child under 18 years old for certain activities."
Now, sure, we can parse the different words in the statute, et cetera, but the bottom line is that in most of these cases they're talking about sex.  And they make it very clear that they are either 12, 13 or 14 years old. 

MCEVOY:  Dan, I don't want to take issue with the idea that it looks like some crimes were committed.  When a nude man walks into my living room or my garage with a 12-pack of beer, I've got real problem with that and that looks like a crime to me.  Now I'm not sure why the Fairfax County Police Department has indicated apparently to you or to your program that crimes have not been committed.  But if that's the case, I'd be quite surprised, and I'd also be surprised if the top prosecutor in Fairfax shared that point of view ... after parsing through the evidence.

ABRAMS:  Mary Ann Jennings from the Fairfax Police Department (appeared) on 'Scarborough Country' (and said the following):

--Begin video clip-- MARY ANN JENNINGS, FAIRFAX POLICE DEPT.:  Although the house was physically in Fairfax County, from what we've been able to determine from what we've gotten from Perverted-Justice, the crime did not occur in Fairfax County.  --End video clip--

ABRAMS:  Del Harvey with Perverted-Justice, what do you make of this?  What is going on here?

DEL HARVEY, PERVERTED-JUSTICE:  Well it's kinds of an interesting situation in that we aren't really seeing the connection because the conversations over the computer would place the jurisdiction in either the subject's location or our location at the house.  We actually had a pass media bus in Waukesha, Mich., in which four people have been charged from that jurisdiction with showing up to the house. 

ABRAMS:  So look, you've been involved with "Dateline" and these undercover things, you helped out last year when 18 people showed up, only one of them was prosecuted.  And I know that the first thing that you all do when you get this information when you're not working with "Dateline" is you hand it over to the authorities and you say, 'Here, look, here is what we've got, you guys do with it what you will.'

Are you getting the sense that they're hitting a lot of road blocks? 

HARVEY:  To some extent, yes.  Interestingly enough actually since Sept. 17 alone we've had two convictions in Virginia.  One of which was military based upon a conversation that was started during our work with "Dateline" and the other which was a civilian bust done by state law or local law enforcement actually.  So it seems as though given that we had six convictions or seven convictions ... last year and so far this year we've had 31, we're definitely gaining momentum ... and we're finding more and more agencies willing to work with us. 

ABRAMS:  But Matthew Yarbrough ... still -- we watch these guys.  I mean Chris Hansen has laid out on television exactly what these guys said, some of them talking about bestiality, committing bestial acts with the children, what they think are children.  They then come over to the house with the intent it seems, and again, we don't know what's going on in their heads.  And they've all denied that they came over there for sex. 

But if you look at what they say on the computer, it seems you'd be able to make a case.  ... What about federal law:  "Whoever knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years or attempts to do so shall be fined under this title, imprisoned not more than 10 years, or both."

So what's the problem? 

MATTHEW YARBROUGH, FORMER FEDERAL PROSECUTOR:  Well Dan, one of the hardest things to do in any cyber crime is to really put the individual at the computer.  So that's the element that the prosecutor is going to be thinking about most when trying to decide how to charge, where to charge jurisdiction wise.  But this for me is a slam dunk as a federal prosecutor. 

When you're able to go in front of a jury, and put the sort of tapes in front of the jury, talk about the conversations, you'll be able to get in the computer logs from the chat room sessions, this is a slam dunk.  Going in front of a jury about an issue about a child is going to be something that's going to enrage that jury.

ABRAMS:  But Matthew, hasn't there been a problem ... Hasn't there been a problem in cases where cases have been thrown out because the courts have ruled that because the person on the other end of the computer wasn't actually under the age of 16 when the decoy is actually older that here have been cases that have been thrown out as a result? 

YARBROUGH:  That is true.  But remember in this case depending upon the facts here, is that if you had the transmission of the depiction or the intent for the individual showing up that was going to take a picture of the child, that's going to get you in another federal statute.  And that's pretty much where most prosecutors are going to try to use when they do not have the intent for the sexual act with a child. 

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.