BERRIEN COUNTY — A Berrien County man convicted of attempting to entice a child for indecent purposes and attempted child molestation, after he was caught on Dateline NBC’s To Catch a Predator, via the Internet, has filed a motion for a new trial.

After being found guilty by a jury in Harris County Superior Court last November, 37-year-old Marvin Harrison Smith II has requested a new trial under grounds that the verdict was reached contrary to law, contrary to evidence and strongly against the weight of evidence. Smith has obtained new legal representation since the 2007 trial and is taking several steps to see that his conviction is overturned.



To Catch a Predator

If you’ve ever seen the To Catch a Predator series, then you know the purpose of the show is to identify potential sexual predators who have made contact via Internet with children or people they believe to be children for sexual conversation and/or activity. The cases, reported by Dateline Reporter Chris Hansen, are investigated as part of a sting operation with the assistance of local law enforcement agencies in a particular area and the Perverted-Justice Foundation, Inc., an organization known for investigating and identifying online sexual predators.

According to information found on msnbc.com, decoys from Perverted-Justice build profiles as minors in online communities, enter different chat-rooms and wait for people to send them messages. If and when the decoys are contacted by adults, they engage in conversation while investigators collect evidence that includes adult pornography, child pornography or sexually explicit chat.

The alleged offenders are invited to a house used in the sting operation and usually arrange a time when they believe the decoy will be home alone to visit. If and when the potential predators arrive at and enter the residence, they usually encounter Hansen, who conducts a brief interview before the suspects are taken into custody by law enforcement and charged.

While many viewers feel that the work done on the series is commendable, several viewers feel that the method used is a ploy to lure people into traps, according to comments posted on the Dateline web site’s feedback page.



Smith’s Arrest and Conviction

Smith, an Alapaha native, was arrested in 2006 during a four and a half day sting operation in Fortson, along with 19 other men. The operation was organized, in part, by the Harris County Sheriff’s Office.

Hansen’s live blog about the apprehension of Smith reads:

“Then there’s 35-year-old Marvin Smith. For the better part of a week he chatted with a decoy posing as a 15-year-old girl. It was absolutely one of the most graphic chats I’ve seen in all of the investigations so far. He details what he wants to do to the girl. He introduces the decoy to a woman he says is his girlfriend and suggests three way sex. He even brags that he has had sex with another 15-year-old girl. Smith, who online goes by the screen name Swgamaleyess, has been saying all week that he’s going to show up at our house. Time after time he stands us up. We started to think that he was getting satisfaction from the chat and wouldn’t really come over. Finally, on the last day of our investigation he pulls into our driveway and walks into our kitchen with hidden cameras rolling. He asks our decoy for a hug and when he starts to follow her into the next room he sees one of our cameramen and bolts. Smith doesn’t get very far. What happens next is a first for us. When Smith tries to run from the deputies, he’s shot by a Taser and knocked to the ground. It’s not until he’s questioned by detectives that we learn Smith also has a religious side saying he used to be a Baptist minister.”

The video of Smith’s arrest also revealed that he was married at the time.

Smith went to court in November 2007 on allegations of attempted child molestation, attempt to entice a child and obstruction. He was originally supposed to be tried in Harris County; however, the venue of the trial was changed to Dalton County.

Smith was found guilty Nov. 7, 2007. He was sentenced to 13 years in prison and 12 years probation.



Smith’s Appeal and Family’s Argument

Following the conviction, Smith began to work on his appeal. A motion for a new trial was filed and Smith obtained a new lawyer, Attorney Linnie Darden of Jones, Osteen and Jones in Hinesville.

In Darden’s opinion, Smith was never given fair treatment after he was arrested. He argues that Smith’s previous attorney did not handle the case in an effective manner and failed to defend Smith to the best of his ability. In addition, Darden contends that the prosecution failed to prove that the messages sent to the decoy actually came from Smith, particularly since the username could not be linked to him.

Darden also criticizes the procedure used by Perverted-Justice to secure sexual predators, comparing it to a form of entrapment.

“Because the decoy was not, in fact, 15, then there were no actual minors in this case,” Darden said. “Most of it is make believe. Therefore, one can’t accuse someone of being the real deal if the person on the other end is posing as someone she is not. What we have is a man who has never shown any kind of pedophilic behavior in the past and is now unjustly being labeled a predator.”

Additionally, Darden questions whether Smith received a fair trial since he was tried in Dalton County rather than Harris County.

“The demographics in Dalton County were not at all similar to those of the county in which the alleged crime was committed,” Darden said. “Also, there were no black jurors on the panel and only one black person in the jury pool.”

One of Darden’s final arguments is that Smith received more prison time than any of the other men convicted as a result of the sting operation. The average sentence of the others arrested was two to six years imprisonment, with some to be released as early as this year.

Smith’s family has been protesting against his imprisonment since he was convicted. In December, his parents, Pastor Marvin H. Smith, Sr. and Minister Earnestine Smith sent the following letter to several community leaders and officials in Berrien County and other parts of the state:

“On behalf of a mother and father, we cry out for justice for our son. This past year has been the most difficult in our lives. In July 2006, the world bared witness to our son and several other men who arrived at a house for Dateline’s show, To Catch a Predator. The images portrayed were of heartless criminals that prey on the minds of innocent children. But we, the families left behind in the wake of this madness, want to share the true character and integrity that Perverted-Justice and the media failed to mention. For our son, Marvin, and many others, this was the first offense committed for any reason. His criminal background was perfect except for this one occurrence, where that seemed not to have mattered to the justice system. He has lived a productive life in society, working full-time as a restaurant manager for a well-known establishment. He also served in the United States Navy as a dental technician stationed aboard the aircraft carrier U.S.S. George Washington, where he received numerous awards of prestigious honor. Marvin is a family man, a mentor to others, a brother, a neighbor, co-worker and friend. For Marvin, he had no choice in his fate. Unlike for many congressmen and senators, he was not given the chance at rehabilitation. There are many different rehabilitation support centers across the globe that address individual need for alcoholism, drug abuse, gambling, addiction, obesity, kleptomaniacs, smoking and hoarders. How is it that America proclaims to be the Land of the Free and the Home of the Brave where there is Equality and Justice for All; however there is no justice for Marvin and many others in his situation?”

In addition to the letter, Smith’s parents and sister, Michelle Baker, organized a rally in Alapaha for Smith’s supporters, which was held last month. More than 100 people, which included family, friends and colleagues, assembled at the rally.

Smith’s conviction and sentence is the hardest for his mother, Earnestine.

“We have murderers who don’t get the type of treatment my son has gotten,” Earnestine said. “Because he wanted to fight for his freedom, they made him pay by giving him the maximum sentence, while the other men captured received much less punishment. Now he sits in a maximum security prison with murderers and repeat offenders, while the others are in prisons with less dangerous environments.”

“There were 20 men in the operation, but they chose to pick on my son. My son is a college graduate and a decent man. He is not a criminal.”

Smith’s mother added that he was not the aggressor during the online conversations. She stated that the decoy harassed Smith via phone when he did not show up for a scheduled date and left several messages on Smith’s family phone, with no regard for Smith’s wife.

“Everyone is entitled to fair treatment by the justice system,” Earnestine said. “My son did not receive that treatment.”



Harris County Sheriff’s Account

Harris County Sheriff Mike Jolley continues to support the court’s decision to convict Smith. After learning of Smith’s intent to appeal, the sheriff replied, “I don’t understand why he would. He was found guilty by a jury of his peers. It was a solid case and I feel good about the verdict that was reached.”

Jolley added that Smith received more time than any of the others caught in the sting because he had an additional charge and the nature of his chat logs were more extreme. In addition, Jolley stated that an IP address was used to trace the messages sent to the decoy to a computer in Smith’s residence.

In response to the argument that there were no actual minors in the case, Jolley argued, “That’s why he was charged with attempt to entice a child. If it had been a minor, he would have been charged with enticing a child. However, we would never put a minor in that position.”

Jolley closed by disputing the defense’s claims of entrapment.

“Just like when we use undercover police officers to bust drug dealers, the people used in this operation were decoys,” Jolley said “It’s a common method used in law enforcement and it’s a preferred one.”



What Next?

According to Darden, he and Smith are still in the preliminary stages of the appeal process. While the motion for new trial has been filed, the next step, a hearing, has been delayed while they await a transcript. In the meantime, Darden is gathering additional materials for a strong defense and compiling character witnesses to speak on Smith’s behalf.

The family also continues to share Smith’s story with people in and around their community. Baker stated that the previous rally was an icebreaker to introduce the public to the situation. She and her parents are in the process of organizing a second rally.

Phone and e-mail messages to Dateline NBC regarding Smith’s case were not returned.