Online solicitation of a minor—repugnant; I’ll have to vote guilty. I’m the father of a teenage girl; I’ll have to vote guilty. I’m the uncle of three nieces; I’ll have to vote guilty. Protecting society from people like this is paramount; I’ll have to vote guilty. To harm, or to even think about harming a child, goes against every conservative principle in my being; I’ll have to vote guilty.

“Juror number three—how do you vote?”

“Not guilty!”

And so the trial in the case against Stacy Michael Maloney, which commenced on May 1st in Galveston County (Texas) District Court, ended. I, and two other jurors, without malice or scurrilous intent, had hung the jury.

As the trial began, I listened from the jury box as we were told about the standards of evidence by which trials are decided. First you have ‘Preponderance of the Evidence’. This means only 51% of the evidence needs to be in favor of one side or the other. This is the standard in civil court. For the first time, I heard about the standard of ‘Clear and Compelling Evidence’. This is a higher standard; used in cases such as the termination of a person’s parental rights. As the title implies, one’s degree of certainty in the evidence must be pretty obvious.

Then comes the standard with which we are most familiar, ‘Beyond a Reasonable Doubt’; an expectation that the evidence presented was something short of a guarantee, but clearly not by much. As we were admonished, in the first prosecution brought by the state of Texas for violation of the ‘Online Solicitation of a Minor’ statute, we had to find that the evidence to convict “be stronger than the evidence to take a child from his or her parents”. That juxtaposition suddenly brought the gravity, of how convincing the district attorney’s case had to be, to light.

As do most people when called for jury duty, I reluctantly arrived at court the previous day, answering the jury summons discovered in my mailbox only a few weeks earlier. Ironically, just two days before the summons arrived, and for no apparent reason, I joked with my wife how—in all my years, and given the number of places we have lived—I had never before been called for jury duty. It was like the announcer who comments, “Jones hasn’t fumbled the ball in over 200 carries, and—whoops! Fumble!!”

I sat among sixty people in the jury pool sent to the 56th Judicial District Court. Judge Lonnie Cox—clearly separated at birth from his heretofore unrealized older brother, actor Wilfred Brimley—was as affable as he could be. As the clerk passed out questionnaires, and the attorneys for both sides spoke in hushed whispers with their respective aides, Judge Cox did his best to keep one half of the crowd from falling asleep from boredom, and the other half from bolting out the door the first time the bailiff turned his head. I have had occasion to meet several judges in my life. None has earned my respect more than Judge Cox.

After having completed the questionnaire about our attitudes on various points of law, the voir dire, or questioning, of the panel began. This is done to weed out prospective jurors who may have a bias toward one side or the other. I must admit some disappointment in the answers several people in the pool gave, as the attorneys for both sides tried to size up the prospects from which the jury would be impaneled.

Each person was initially asked if they could render an impartial verdict based strictly on the evidence. I was stunned at how many people said they could not; that the very nature of the indictment demanded they vote guilty. Some said they had children of their own and simply could not be impartial. Answers to other questions indicated some with an unwavering belief that law enforcement personnel were absolutely incapable of lying, misinterpreting or mischaracterizing evidence; or that if a defendant does not testify in his own defense, they had to conclude he was guilty. Clearly our civics teachers need to do a better job in the classroom.

I think it was my disappointment in these answers—perhaps more than all I had learned about our system of justice over the course of my fifty-plus years, or all I had already come to believe as a citizen—that made me even more focused on the hallmark of our country’s criminal court system; that the defendant is innocent until proven guilty, by the state, beyond a reasonable doubt. This, too, is a core principle of who I am.

In the end, the jury in the case of Stacy Michael Maloney was unable to reach a unanimous verdict of guilty or not guilty. All were in agreement that online solicitation had occurred. None had a shred of doubt that the intent was to make sexual contact with the party with whom Maloney was communicating. What we could not reach an agreement on was whether Maloney believed he was communicating with a minor.

Interestingly enough, the jury instructions indicated we were to first establish whether Maloney believed the undercover officer from the Kemah police department was, at best, under the age of seventeen, or more specifically, the age of thirteen. While the statute also allows that the age of the affected party merely be represented as such, clearly—at least in my mind—the judge decided that merely making several statements, “I’m thirteen”, was insufficient.

To begin with, the male undercover officer in charge of the investigation, and the female officer charged with the responsibility of accepting Maloney’s telephone calls, seemed to be reading from different scripts. One said the fictitious ‘Brandy’ would only be able to meet with Maloney during the day, never at night. The other said ‘she’ could easily be available at night by getting into a fight with her mother; that mom would drink herself to sleep and ‘Brandy’ could sneak out—saying she “does it all the time”. One said mom worked Monday-Friday, 8-to-5; the other said mom worked four ten-hour-days a week. Home schooling gave ‘Brandy’ the excuse of being available to chat online during the weekday, while the undercover officer was on-duty, but she was never accessible at nights or even on weekends. She was supposedly home alone, but could not speak on the phone for more than a week (while a female officer was located for the contact).

For these reasons and others, Maloney’s defense was that he wasn’t certain of who, much less how old, ‘Brandy’ was. Maloney was emailed a photograph of the undercover officer’s wife, taken when she, herself, was thirteen—in the early 1980’s. Big hair, double-layered dress with a big pink bow and white patent leather pumps screamed that the photo was sent by someone who wanted to be perceived as thirteen, but likely (in late 2005) was not. Even after receiving the photograph, but before speaking with ‘Brandy’ on the phone, Maloney asks in one of the interim chats, “Are you a guy?” Until the phone call, and borne out by the documented question, Maloney claimed he was still unsure of the veracity of the person with whom he was dealing.

If being stupid were a crime, Maloney would have gotten the electric chair. When the female officer was finally in place to take his call, the lead undercover officer sent a chat message to Maloney inadvertently instructing him to call the main switchboard of the Kemah Police Department. He did; and rather than setting fire to his computer and disavowing any efforts to engage in online chats with anyone, Maloney testified that he became even more convinced he was dealing with an adult (who worked at the police department no less); one who merely insisted upon his acceptance of her fantasy of being thirteen.

For Maloney, according to his testimony, the phone call was the point at which he felt confident he was in the clear to proceed with his efforts to solicit sexual contact from ‘Brandy’. The female officer with whom he spoke, for more than twenty minutes, was, herself, a twenty-eight year old woman who had been smoking for the past 8-10 years. In listening to her testify, comparing her testimony to the poorly recorded phone conversations, there was—again, in my opinion—little, if any, effort to modify her voice or vocabulary to make herself sound like the thirteen-year-old she had been asked to portray.

As I attempted to convince my fellow jurors, it seems completely reasonable to expect that one adult, in conversation with another adult—again, twenty-eight years old, smoking for nearly ten years—for more than twenty minutes, can figure out he is not speaking with a thirteen year old. The question I had, and continue to have days after the hung jury resulted in a mistrial, was “why should the jury have been put in the position of playing ‘Thought Police’ to begin with”? Wasn’t George Orwell’s ‘1984’ a roadmap for how not to steer society?

Instead of placing the jury—any jury—in the unenviable position of basing the decision of whether a person should forfeit his liberty on what we thought he thought—which, on the surface appears constitutionally questionable to begin with—I believe our elected officials should have done a better job of eliminating the opportunity for debate. Since they haven’t figured it out, perhaps they will accept the following as one citizen’s suggested solution to the problem. I give to them, and to you, what I would title “The Online Age Recognition Act”. It would read something like this:

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Regardless of the time period over which two or more individuals communicate via online “chat”, instant messaging, email, or other form of electronic messaging or communication, upon the statement by any one individual (Person “A”) that they are younger than seventeen years of age, all participants engaged in said communication shall, by law, accept the declaration to be factual. Any prior contrary statements made by Person “A” shall be considered non-existent upon making the statement that they are younger than seventeen years of age. No party shall make offers or solicitations to Person “A” for personal activity lawful only between persons seventeen years of age or older, including, but specifically pertaining to, offers or solicitations of/for sexual contact as defined by statute. Any party in communication with Person “A” subsequent to the declaration he/she is younger than seventeen years of age shall be required by this act to obtain tangible proof of age from Person “A” showing otherwise, in the form of government issued identification, and retain a copy of said tangible proof to be free from liability, responsibility, or prosecution for violation of any statute or law in which actions or activities with a person under seventeen years of age are prohibited which commenced or continued after the declaration.

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Maybe it’s just me, but I do not believe this leaves any ambiguity or doubt in the enforcement of the “Online Solicitation of a Minor” statute. It eliminates the opportunity to use the “well, I figured out he/she was really an adult” defense. Just like “no means no” in cases of rape, “13, 14, 15 or 16” should mean “13, 14, 15 or 16”. Currently, based on the way the statute is written, it does not always mean such in cases—perhaps any case—involving a minor.

I have to accept the vote I cast in the trial of Stacy Michael Maloney. I made the decision to prioritize the principle of citizenship over the principle of conscience. On one hand, I am confident that I made the right choice. On the other, I will forever wonder—but may never know for certain—whether the manner in which the statute was written, and the onus of taking the standard of reasonable doubt to its logical, literal conclusion, didn’t play right into the hands of the defense. If our legislators, state and federal, will give consideration to “The Online Age Recognition Act” I have proposed, maybe some good will have come out of my jury experience.

Kevin D. Bakko is the author of “The Choice”; a sci-fi political thriller, a former talk radio host, and former guest op-ed contributor to the Knight-Ridder newspaper group and NewsMax.com