Mesquite police retaliate against local woman

Undercover police officers lie. That's their job. They create a persona and use it to gain entree into a world of lawlessness.

But where does the lying stop? Does it stop after the bust? After the offense report? After taking an oath to tell the truth on the stand? Or after the trial is over?

Melissa Walthall of Mesquite, Texas, had a friend who was upset at the testimony of an undercover narcotics officer. And, when Ms. Walthall came across a picture of the officer on a flyer, she posted it on Facebook with the caption "Anyone know this b****?"

Mesquite Police weren't amused. Investigators decided that Ms. Walthall's message posed a "viable threat to the officer's safety" so they charged her with felony retaliation.

Sec. 36.06. OBSTRUCTION OR RETALIATION. (a) [amended 9/1/97] A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
(b) For purposes of this section, "informant" means a person who has communicated information to the government in connection with any governmental function.
(c) An offense under this section is a felony of the third degree.

But what exactly did Ms. Walthall do wrong? She didn't harm the officer. She didn't threaten to harm the officer. She didn't ask anyone else to harm the officer. She just posted a picture she saw on a flyer and called the officer a bad name.

Yes, she busted the officer's cover. But so freaking what? He works undercover - that's one of the hazards of his job.

In order to convict Ms. Walthall, the government must first prove that she meant to harm or threaten to harm the officer. The government must then prove that she meant to harm or cause harm through an unlawful act.

I don't think the government can even prove the mens rea of the crime. She posted a picture with a derogatory caption. There was no threat in the caption. Moreover, there was no unlawful act. It's not against the law to post the picture of an undercover officer. Nor should it be against the law.

Ms. Walthall has a right under the First Amendment to speak freely. Her posting of the picture with the caption is clearly an act of speech. That act of speech is protected under the Bill of Rights. The actions of the Mesquite Police Department were clearly retaliatory.

The police are using their badges and guns to quell speech with which they don't agree. She was arrested for constitutionally protected activity by officers acting under color of law. That sounds like official oppression to me.

§ 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office 

or employment commits an offense if he: (1) intentionally subjects another to

 mistreatment or to arrest, detention, search, seizure, dispossession, assessment,
 or lien that he knows is unlawful; (2) intentionally denies or impedes another in
 the exercise or enjoyment of any right, privilege, power, or immunity, knowing
 his conduct is unlawful; or (3) intentionally subjects another to sexual
 harassment.

But what's the likelihood that anyone up there is going to have the guts to do the right thing and charge the officers with the crime?

The investigators are aware that we all enjoy the right to speech free from government restriction under the First Amendment. The act of arresting Ms. Walthall impeded her ability to enjoy her right to free speech. What could be clearer? The action could also set the department up for a civil rights lawsuit under Chapter 1983.

The actions of the police in Mesquite were illegal and thuggish and were designed to discourage people from exercising their right to free speech. Thuggery is always the last resort for those who know they can't make a logical argument in defense of their actions.

Juror sentenced for using Facebook during trial

Joanne Fraill of Manchester, England (probably a Man U. fan), found out the hard way that Facebook and jury duty don't mix well.

On Thursday, Ms. Fraill was sentenced to eight months in prison after being found in contempt of court. It would seem that, while serving on the jury, Ms. Fraill "friended" -- and the use of that word as a verb should itself be a criminal act -- one Jamie Stewart, a defendant in a felony drug case, on Facebook. While the jury was deliberating, Ms. Fraill made contact with Ms. Stewart and discussed the case with her. She even provided Ms. Stewart with details of the jury's deliberations.

Sentencing Fraill, Lord Judge said in a written ruling: "Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial."

Interestingly enough, the shenanigans occurred after the jury had informed the court that it was deadlocked. The court then gave the jury the option of deciding the case by a majority vote, rather than a unanimous vote.

Ms. Stewart, who was acquitted, was given a suspended sentence for her role in the online communications.

The widespread use of Facebook and Twitter (and other social media sites) is straining this artificial construct we call the trial. Unless we are going to sequester every jury in every case, someone is going to do a little "research" on the internet about the case. It may be pulling up maps of the scene of an accident. It may be looking at the online profiles of the attorneys involved. Someone might look for the defendant on Facebook or Twitter. Someone's going to go to Google to find out about the breath test machine or DNA testing or some other field of forensic (pseudo-)science.

The information they find might be helpful to the defense. It might be harmful to the defense. It won't, however, be subject to cross-examination. It won't be subject to relevancy or hearsay objections.

Most of us won't have to worry about it too much because most of our trials last no more than a day or two and none of the details of the case ever make it to the local paper.

But one thing is certain - technology has (once again) outpaced our legal constructions and conventions. I don't know what the answer is. Jurors may say they won't do any research outside the courtroom -- but jurors also state they won't allow their own biases to prevent them from being fair (even after they've admitted they will hold it against your client if she doesn't take the stand in her own defense).

Twitter just says no

Which online organization actually has the balls to stand up and defend its users' privacy?

It's not Google. It's not Facebook. It's not Wordpress.

It's Twitter.

In the face of government subpoenas asking for users' information, Twitter has stood up and fought. When the US government served Twitter with a subpoena asking for information about four individuals allegedly involved with WikiLeaks, Twitter sought to have the subpoena unsealed so that the users could be notified of the attempts by los federales to access information.

Facebook and Google don't notify their users when they are requested to turn over information in response to a subpoena. So you may never know if you're one of the 4,000 folks the government is seeking information on every year.

And what has Twitter received for daring to stand for principle? Certainly not a lot of praise. The government wants you to believe that Twitter isn't being a good corporate citizen because it refuses to bend to the government's demands.

Twitter should be lauded for its efforts to protect our right to privacy. Twitter shouldn't be condemned, Twitter should be commended for fighting the government's exercise of power.

H/T to Kevin O'Keefe.

Can't we all just be friends?

If you're a judge, is it okay for you to set up a Facebook page and "friend" lawyers who appear in your court?

If you're in Florida, the answer is no.

According to the Judicial Ethics Advisory Council,

With regard to a social networking site, in order to fall within the prohibition of Canon 2B, the Committee believes that three elements must be present.  First, the judge must establish the social networking page.  Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member's page.  Third, the identity of the “friends” or contacts selected by the judge, and the judge's having denominated himself or herself as a “friend” on another's page, must then be communicated to others.  Typically, this third element is fulfilled because each of a judge's “friends” may see on the judge’s page who the judge’s other “friends” are.  Similarly, all “friends” of another user may see that the judge is also a “friend” of that user.  It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

Florida's Canon 2B reads:

A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

The opinion goes on to say that it is not the act of "friending" on Facebook that violates the rules, it is the appearance that such conduct might lead one to believe a special relationship exists between the judge and his or her "friends."

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

But, assuming a judge being "friends" with lawyers on a social networking site violates ethics rules in Florida, would such conduct violate the rules in Texas?

Canon 2B of Texas' Code of Judicial Conduct reads:

A judge shall not allow any relationship to influence judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

Now, let's be honest. We all have "friends" on Facebook that we don't know or haven't had any actual contact with in years. I'm "friends" with a bunch of folks I went to high school with that I haven't seen or talked to in 25 years. Just because you're "friends" with someone on Facebook doesn't mean that person has any special pull.

Judge Susan Criss in Galveston and I are "friends" on Facebook. I practice in her court. I have no special privileges when I set foot in her courtroom. Judge Criss posts pictures of the sun setting over the island and of her dogs chewing up her slippers. It's funny.

I'm not concerned about a judge and a lawyer being "friends" on a social networking site. That doesn't convey, to me, the appearance of impropriety. But what about lawyers and firms who donate money to judicial campaigns? The names of those donors are not readily available (though they are included on campaign finance reports filed with the state).

Judicial elections are a necessary evil in Texas - it's a bad system but it's better than any alternative. If being "friends" on Facebook is a sin in Florida, what about donating money to judicial election campaigns? Which is likely to have more influence? I'm not saying that just because an attorney or a firm donates money to a campaign that they will receive special treatment in that court (or the converse), but if we're talking about appearances...

Public shaming, part deux

First there was the Twitter campaign by the Montgomery County (TX) District Attorney's Office. To refresh your memories, the MCDAO made a big to-do about tweeting the names of motorists arrested on suspicion of drunk driving in Montgomery County. Strangely enough, the MCDAO doesn't seem to tweet the names of those fortunate folks who have been acquitted by Montgomery County juries.

Now it's time for another social media campaign aimed at motorists arrested on suspicion of drunk driving. Now it Huntington Beach, California and Facebook.

City Councilman Devin Dwyer wants to shame motorists arrested for driving under the influence more than once  by posting their mugshots on the police department's Facebook page.

There is a saying: Come to Huntington Beach on vacation, leave on probation. -- Randall Bert, local attorney

Interestingly enough, Huntington Beach Police spokesman, Lt. Russell Reinhart, thinks the idea is a bad one.

We see no value in doing that. Law enforcement is not about public shaming. - Lt. Russell Reinhart

Again, I ask Mr. Dwyer the same question I asked Warrenn Diepraam of the MCDAO: are you going to issue apologies to those folks who aren't found guilty?

Facebook post lands juror in hot water

Think a juror's fondness for social media won't affect your client? Think again. A Macomb County (Michigan) judge removed a juror from a case after the defendant's attorney's son found that the juror, Ms. Hadley Jons, had posted a message on her Facebook page that she thought the defendant was guilty -- before the trial was over.

Judge Diane Druzinski has ordered Ms. Jons to return to court on Thursday to determine if she will be held in contempt.

While the judge was upset and the defendant's attorney was outraged, the fact that a juror had already made up her mind is not that disturbing. We are told in seminar after seminar that anywhere from 75% to 100% of jurors make their minds up before hearing any evidence. Based on the handy 80/20 rule, I will assume that up to 80% of jurors have their minds made before the trial even starts. Why else would we sit through as many seminars as we do dealing with voir dire and using your opening statement to tell a story?

Back in the pre-Facebook days no one would ever have known Ms. Jons had already decided the case before it was over. She might have told a friend and that friend may have told someone else, but there would have been no way to discover those conversations outside Ms. Jons' own admission. The kicker here was that she broadcast here opinion on Facebook without giving a second thought whether someone might be checking up on her during the trial.

This incident points out two very important points. First, you need to know who among your panel uses social media on a regular basis, who posts on Facebook, who spends time on Twitter and who reads or writes blogs that might have something to do with the issues in your case. Second, with our expanded use of social media, we are rapidly shrinking our reasonable expectation of privacy  -- just ask Ms. Jons about that.

Juror contacts witness via Facebook

Forget about jurors googling the name of a defendant or an attorney or going online to research the accuracy of state breath test machines, how about a juror contacting a witness via Facebook with a friend request?

Lest you find it unlikely, that's what happened in a civil trial in the Bronx. After deliberating through a day in a criminal case revolving around the death of two firefighters, juror Karen Krell looked up a firefighter who had testified on Facebook and sent a request to be friends. The firefighter did not accept her request.

Supreme Court justice Margaret Clancy denied a defense motion to set aside the verdict based on Ms. Krell's conduct but did overturn the conviction based on insufficiency of the evidence.

Ms. Krell's conduct was unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions. The fundamental right of a fair trial cannot be guaranteed if jurors fail to take their obligations seriously and disregard their oaths to follow the court's rules. Before a court can set aside a verdict based on a juror's violation of a rule, however, the misconduct must have prejudiced a substantial right of the defendants. -- People v. Rios, No. 1200/06 (Feb. 23, 2010).

In anticipation of such behavior, the Office of Court Administration amended its suggested jury admonitions to cover various forms of social media.

In May 2009, the Office of Court Administration's Committee on Criminal Jury Instructions amended itsrecommended "jury admonitions" to suggest that trial judges state that "you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter."

The simple fact is that there is no way to prevent jurors from logging on to their computers or using their phones to "conduct research." To walk into a courtroom and assume that jurors are going to listen to the evidence and make their decision solely on the evidence presented in the courtroom is naive these days. You must assume if there's something bad out there that someone on that jury is going to find it.

Welcome to the People's Republic of Maryland

The State of Maryland is contemplating a rule that would ban people from carrying communication devices, including cell phones, into courthouses. The judiciary rules committee (or Chinese politburo) is up in arms over Facebook, Twitter, blogs and the like shedding a little bit of light on what goes on behind the walls of the courthouse.

Proponents of the ban say it would protect witnesses from having their pictures snapped by "snitch" hunters carrying cell phones.

A person may not bring any electronic device into any court facility. -- Maryland's proposed policy

I hate to be the one bearing bad news but the Chinese, the Soviets and every other totalitarian regime has tried to restrict the flow of information but cyberspace knows no boundaries (except for the self-imposed ones companies have implemented when bowing down to kiss the feet of the Chinese dictators). The only entities that fear the public's access to information are those entities that have something they wish to hide.

Anyone arrested in this country has the right to a public trial -- and the public includes the blogosphere, Twitter, Facebook and other social media sites.

Criminal defendants tweeting during trial

After seeing this piece from the ABA, it might be a good idea to tell clients to stay off social media before and during trial.

Sam Riddle, a political consultant in Michigan, went on trial on charges of public corruption and blasted his defense attorney while the jury was out deliberating.

Until today I never understood the true depth that ineffective counsel could achieve. The 6th Amendment screams for justice.about 20 hours ago from txt

When your fate is in the hand of others, Man, THAT is not a good feeling. Especially when those that are to define you simply don't.about 22 hours ago from web

Steve Keefer, on trial for public corruption in Pittsburgh, took his frustration with the state's investigation out by tweeting during trial.

1. cant resist... mazo testified that i saved the caucus millions of $ while i was director12:54 PM Feb 5th from mobile web
2. the good Lord, truth and justice will always win...9:16 PM Feb 4th from mobile web
3. especially when at the same time of his announcement, his ex-cos is testifying about how much of a waste HWD was...8:58 PM Feb 4th from mobile web
4. after 20 years in politics, i suppose i shouldnt be astounded any longer by the level of hypocracy...8:24 PM Feb 4th from mobile web
5. and then howard william deweese decides that he is holy enuff to run for office again...7:30 PM Feb 4th from mobile web
6. cant believe the balls of howard william deweese... he fired a bunch of people claiming they were engaging in corruption, yet he gets indict7:28 PM Feb 4th from mobile web
7. the attack was on the credibility of the evidense and its collection... not the wittness6:18 PM Feb 4th from mobile web
8. i've heard said, if ur opponent stoops to stealing ur yard signs, u must b in good shape4:46 PM Feb 4th from mobile web
9. AG's R worried about me saying anything bad about corbett or this phony investigation4:28 PM Feb 4th from mobile web
10. sorry folks... no more tweeting from trial...4:25 PM Feb 4th from mobile web
11. court is adjourned for the day... twitter issue is unresolved for me...3:09 PM Feb 2nd from mobile web
12. stay tuned... i may be back12:21 PM Feb 2nd from mobile web
13. sorry folks... AG must be worried... not allowed to tweet anymore...8:37 AM Feb 2nd from mobile web
14. walk finished... excellent job of explaining8:35 AM Feb 2nd from mobile web
15. Walk holds up stack of immunity agreements and explains the deals that witnesses are getting8:31 AM Feb 2nd from mobile web
16. walk is doing a good job utlining the inconsistancies in the AG's charges8:27 AM Feb 2nd from mobile web
17. polarmo finished remarks for peretta... brian walk is starting opening for cott7:52 AM Feb 2nd from mobile web
18. day 2; opening remarks for cott and peretta this morning7:30 AM Feb 2nd from mobile web
19. @Matt_Belanger don't forget to mention Matt that Merium Fox recieved the largetst bonus of 38K and she was never mentioned by the AG at all10:23 PM Feb 1st from web in reply to Matt_Belanger
20. kevin harley: defense is making allegations trying to confuse jury... newsflash; hey kevin, phone records dont lie...9:09 PM Feb 1st from mobile web
21. corbett's campaign satff inside the courtroom today... it speaks volumes about what this trial is all about...9:08 PM Feb 1st from mobile web
22. waiting to see how the main stream media covers the fact that the AG objected to us showing corbett's own campaign phone records...9:07 PM Feb 1st from mobile web
23. adjourned for the day4:40 PM Feb 1st from mobile web
24. my aty has run through an entire list of things about this case in which the jury will NOT hear my name...4:08 PM Feb 1st from mobile web
25. slowly and methodically explaining how my office worked and the late hours we were required to work...3:40 PM Feb 1st from mobile web
26. my aty is beginning my opening remarks2:57 PM Feb 1st from mobile web
27. resuming opening remarks... defense is not allowed to show tom corbett's campaign phone records2:53 PM Feb 1st from mobile web
28. back from recess... its clear the judge wont allow us to talk about these phone records in open court... lawyers are on side bar now arguing2:36 PM Feb 1st from mobile web
29. AG lawyers freaked out... judge called an immediate recess... AG lawyers are frantically buzzing around2:31 PM Feb 1st from mobile web
30. defense just showed phone records from corbetts camapaign phones showing that corbett's campaign made hundreds of calls to state staff2:19 PM Feb 1st from mobile web
31. defense just quoted tom corbett as saying he juggles campaign work and state work all the time...1:34 PM Feb 1st from mobile web
32. btw, corbett has campaign staff here in the courtroom10:39 AM Feb 1st from mobile web
33. AG made first objection less than 5 minutes into our opening statement10:38 AM Feb 1st from mobile web
34. AG has concluded opening arguments... mentioned my name three times... once was to say that i had nothing to do with bonuses.10:21 AM Feb 1st from mobile web
35. all opening statements will be today... AG will start8:02 AM Feb 1st from mobile web
36. AG has 10 lawyers here7:57 AM Feb 1st from mobile web
37. waiting for attorneys to finish conference with judge. so far the AG has at least has at least six agents here7:44 AM Feb 1st from mobile web
38. If all goes as planed, I'm going to be sending updates during the trial...10:20 PM Jan 31st from web
39. start9:06 PM Jan 31st from web

So what's the harm, you ask? Statements made by a party to a suit are admissible, even if the party who made the statement doesn't testify, because the statements aren't considered hearsay. In Mr. Riddle's case it may not matter because he waited until the jury took the case before posting updates -- but should one of the jurors go snooping around the internet...

Mr. Keefer's updates are far more troubling, however, because he began posting updates on Facebook and Twitter during the trial. Any comments he made could be introduced into evidence by the state if he made any harmful admissions.

The danger, of course, becomes greater in complicated multi-day trials when jurors have time to do a little "research" on the side.