A federal appeals judge suggested some details of so-called "cannibal cop" Gilberto Valle's alleged kidnapping conspiracy were as likely as a drug plot with cocaine brought "from the moon by a leprechaun" during oral arguments in the case Tuesday.
Judge Barrington Parker's comment drew laughs at a Second U.S. Circuit Court of Appeals hearing in Manhattan on the government's appeal of a trial judge's reversal of Valle's conspiracy conviction, and Valle's cross-appeal of his conviction for misusing an NYPD database.
Parker, who appeared to sympathize with defense arguments that Valle's alleged plots were just fantasies, also likened some of Valle's Internet chats about abducting and eating women to drug dealers agreeing that a delivery would be "dropped by a bald eagle."
"We should be skeptical, right?" said the judge.
Valle, 31, an ex-cop from Forest Hills, was convicted by a federal jury in Manhattan in 2013 of concocting fiendish plots to torture women with men he met on a kinky dark-fetish website. But the defense accused prosecutors of trying to turn fantasy role-play chats they found distasteful into a crime.
Last year, U.S. District Judge Paul Gardephe overturned the conviction, finding the allegedly serious plots were intermingled with obvious fantasies, Valle never followed through on any, and no reasonable juror could have found beyond a reasonable doubt that they were serious.
Valle, who was also convicted and did time for misusing a police database to research women, was released. His case is the subject of a recent, well-received HBO documentary.
Government lawyers contended Tuesday that jurors were entitled to conclude the plots were real -- based, for example, on evidence that Valle once checked out the workplace of a potential target in Maryland, researched buying chloroform and later admitted that some of the men he was chatting with seemed "serious."
"It's not Judge Gardephe's role to see himself as a 13th juror," federal prosecutor Justin Anderson said.
But the defense argued that the judge was supposed to intervene when a verdict didn't make sense -- especially in a case where prosecutors argued that as a trained cop Valle represented a special danger out on the street.
"It's understandable a jury in a case like this might say, 'What if?'" said Valle lawyer Edward Zas. "But we don't convict people based on what they might do."
The appeals panel appeared divided. While Judge Susan Carney gave little indication of where she stood in her questions, the third member of the panel, Judge Chester Straub, took the opposite tack from Parker, repeatedly challenging Valle's lawyers.
Straub told Zas that the fact that some of Valle's chats were fantasy didn't show that none were real, and noted that Valle's failure to ever act didn't mean he wasn't serious.
"It never came to fruition," Straub said. "That doesn't mean the conspiracy didn't exist."
Valle, arrested in 2012, served 21 months in prison before he was released last year. The three-judge panel reserved decision on the case.