State v. Valentino
939 N.W.2d 345
Neb.2020Background
- In 2015, Lincoln Police participated in the National Johns Suppression Initiative (NJSI) and conducted a sting that arrested several men for solicitation of prostitution; Vincent Valentino was charged under Neb. Rev. Stat. § 28-801.01.
- Valentino applied for Lancaster County pretrial diversion; his application was denied and an administrative hearing concluded solicitation was not listed as an eligible offense under the county Diversion Guidelines.
- Valentino served subpoenas duces tecum and moved to suppress, alleging selective prosecution based on gender because the sting targeted male buyers.
- The county court allowed limited questioning, quashed the subpoenas, denied the suppression and dismissal motions, and convicted Valentino after a stipulated bench trial.
- The Lancaster County District Court (acting as an intermediate appellate court) affirmed the county court’s rulings; the Nebraska Supreme Court also affirmed.
Issues
| Issue | Valentino's Argument | State's Argument | Held |
|---|---|---|---|
| Selective prosecution based on gender | NJSI sting and prosecutions targeted men as "johns," so enforcement was discriminatory | Police targeted buyers because buyers (encountered in stings) were male; no evidence similarly situated women engaged in similar conduct; no discriminatory intent | No selective prosecution shown: Valentino failed to prove discriminatory effect or intent; rulings affirmed |
| Denial of pretrial diversion / lack of reasons | County attorney improperly failed to give reasons and denied diversion due to gender | Solicitation is not listed as an eligible offense under written Diversion Guidelines; denial followed guidelines | Denial was proper: solicitation not an eligible offense; no impermissible gender-based denial |
| Discovery / subpoenas to support selective-prosecution claim | Subpoenas sought documents to show discriminatory policy/practice | Requests unduly burdensome, not sufficiently relevant; defendant failed to meet threshold for discovery on selective-prosecution claim | Subpoenas quashed; Valentino did not make the credible showing required to obtain discovery |
| Statutory / constitutional claim that solicitation is gender-specific | Solicitation enforcement functionally targets men and is impermissible discrimination | Solicitation statute is gender-neutral (“any person”); deterrence of buyers is a valid, gender-neutral law-enforcement objective | Statute is gender-neutral; enforcement aimed at buyers is permissible and not shown to be invidious |
Key Cases Cited
- Wayte v. United States, 470 U.S. 598 (establishes requirement to show discriminatory effect and purpose for selective-prosecution claims)
- United States v. Armstrong, 517 U.S. 456 (requires credible showing of discrimination before discovery into prosecutorial practices)
- State v. Katzman, 228 Neb. 851 (discusses standards for selective prosecution challenges)
- Clayton v. Lacey, 256 Neb. 282 (addressed county attorney’s obligation to give reasons in diversion denials in a differing factual context)
- State v. Stanko, 304 Neb. 675 (applies plain-meaning, gender-neutral statutory interpretation)
- City of Minneapolis v. Buschette, 307 Minn. 60 (recognizes dismissal as remedy when discriminatory enforcement is proven)