Summary
The Nebraska Supreme Court affirmed Vincent Valentino’s conviction for solicitation of prostitution and rejected his claim that he was selectively prosecuted based on gender. The court held that denial of pretrial diversion is a decision to prosecute, but concluded that Valentino failed to show discriminatory effect or purpose because the relevant offenses and enforcement policies were gender-neutral and no similarly situated women were shown to have been treated differently.
Topics
Practice areas
Questions Presented
- Whether Valentino established a gender-based selective prosecution claim concerning his arrest, prosecution, or denial of pretrial diversion.
- Whether denial of admission to pretrial diversion constitutes a decision to prosecute that may be challenged as selective prosecution.
- Whether Valentino was entitled to discovery or subpoenas in support of his selective prosecution claim.
- Whether the county and district courts properly affirmed the conviction and rejected Valentino's related motions.
Holdings
- Appeals from county court criminal convictions are reviewed for errors appearing on the record, with independent review of questions of law; the same standards apply when reviewing criminal convictions from county court as when reviewing convictions from district court.
- The State's decision to deny an arrestee admission into a pretrial diversion program is a decision to prosecute and may be challenged through a selective prosecution claim.
- A defendant claiming selective prosecution based on gender must show that similarly situated individuals of a different gender were not prosecuted and that the prosecution decision was invidious or in bad faith, based on impermissible considerations or a desire to prevent the exercise of constitutional rights.
- Valentino did not establish that he was selectively prosecuted or denied pretrial diversion because of his gender.
- A defendant seeking discovery from the State to support a selective prosecution claim must produce some evidence making a credible showing of both discriminatory effect and discriminatory intent.
Key quotations
“To establish a selective prosecution claim, it has been generally held that a defendant must demonstrate that the prosecution “had a discriminatory effect and that it was motivated by a discriminatory purpose.”” (305 Neb. at 104)
“A government’s decision to deny pretrial diversion is a decision to prosecute, and we find no merit to Valentino’s claim that he was selectively prosecuted for solicitation based on gender.” (305 Neb. at 107)
Factual background
The Lincoln Police Department participated in the National Johns Suppression Initiative and conducted a sting operation targeting persons seeking to purchase sex. Valentino, one of six men arrested for solicitation of prostitution, was charged under Nebraska's gender-neutral solicitation statute and was denied admission to the Lancaster County pretrial diversion program because solicitation was not an eligible offense under the written diversion guidelines. He alleged that the investigation, prosecution, and diversion denial were based on gender, but the record showed no similarly situated women who had engaged in comparable buyer conduct and were not prosecuted.
Procedural history
After being arrested in a prostitution sting and denied admission to a county pretrial diversion program, Valentino moved to suppress evidence, sought discovery through subpoenas duces tecum, and moved to dismiss based on alleged gender-selective prosecution. The Lancaster County Court quashed the subpoenas, denied the motions, convicted Valentino following a stipulated bench trial, and imposed a $500 fine. The Lancaster County District Court affirmed, and the Nebraska Supreme Court affirmed the district court's judgment.