On destroying America by digging up Marilyn Monroe

Today's there's yet more evidence that the U.S. War Against Something Terrorism has caused security personnel to misplace their common sense.

Leigh Van Bryan and his friend, Emily Bunting, flew into Los Angeles from Ireland for a holiday. A few days earlier, Mr. Van Bryan had tweeted:

"Free this week, for quick gossip/prep before I go and destroy America."

He had also tweeted that he was going to be in LA for three weeks annoying people and "diggin' Marilyn Monroe up."

Somehow Mr. Van Bryan's messages made their way into the hands of the Department of Homeland Security who weren't too amused. Whether it was his saying he was going to destroy America or dig up the body of Marilyn Monroe isn't clear. But, what was painfully clear over the course of five hours of interrogation was that someone didn't find his humor very funny.

After the interview, Homeland Security reported: "Mr Bryan confirmed that he had posted on his Tweeter website account that he was coming to the United States to dig up the grave of Marilyn Monroe. 

"Also on his tweeter account Mr Bryan posted he was coming to destroy America." 

The US Customs and Border Protection agency said in a statement that it tried to maintain a balance between "securing our borders while facilitating the high volume of legitimate trade and travel that crosses our borders every day". 

It added: "We strive to achieve that balance and show the world that the United States is a welcoming nation."

Okay, I get the anti-terrorism hysteria - after all that's apparently part of the government jobs program. So long as there's a threat of terrorism los federales need to keep plenty of security personnel on the payroll. And it's probably just as well because I think the last thing we need is a bunch of unemployed "scoper and gropers" wandering around the streets of this country.

But let's get real. First, does anyone really think that an Irish bartender was intending to blow up something in America? Second, why does Homeland Security give a flying fuck about Marilyn Monroe's bones? Is her coffin hiding evidence of her affairs with John and Bobby?

There's a lot of information out there on the internet and I'm certain that some of it can provide leads to some folks who are up to no good. But you've got to have context. You've got to use a little common sense. Mr. Van Bryan was coming stateside for a holiday, not to conduct a terrorist operation. The grocery clerks at Homeland Security were too caught up in their own self-importance to understand that.

I've said it before, and no doubt I'll say it again, the world is no more dangerous today than it was on September 10, 2001 - unless we're talking about the exercise of our right to be left alone by the government.

The fishbowl

If you're into social media and designing applications (and helping los federales to spy on the citizenry), the FBI has the perfect free-lance job opportunity for you.

How would you like to design an app that could search social media sites such as Facebook, YouTube, Flickr and Twitter and allow users to compile information on domestic and international terrorism?

The FBI's Strategic Information and Operations Center (SOIC) posted its "Social Media Application" market research request onto the web on 19 January, and it was subsequently flagged up by New Scientist magazine. 

The document says: "Social media has become a primary source of intelligence because it has become the premier first response to key events and the primal alert to possible developing situations." 

It says the application should collect "open source" information and have the ability to: 

• Provide an automated search and scrape capability of social networks including Facebook and Twitter.

• Allow users to create new keyword searches.

• Display different levels of threats as alerts on maps, possibly using colour coding to distinguish priority. Google Maps 3D and Yahoo Maps are listed among the "preferred" mapping options.

• Plot a wide range of domestic and global terror data.

• Immediately translate foreign language tweets into English.

Sure, when you post something online it's out there for the whole world to see. But, so many of these social network sites function more like a cocktail party or a backyard bbq. You and your circle of (mostly) virtual friends chat and comment about this or that - until your eye is drawn to the next shiny object.

What has happened to our right to be left alone? As Scott Greenfield points out, on the internet you don't know if you're talking to a dog -- or a terrorist, or at least someone los federales have their eyes on. How does it feel to know you might just get dragged into an investigation? How does it feel to know that you might find yourself under suspicion because of a tweet?

Of course you know that everything changed on 9/11. Now we're all under suspicion. Now the government needs to be able to monitor all our communications lest someone say something that might be a little bit controversial. The same tools that we have hailed for making our world smaller and allowing us to connect with more people are being used to keep an eye on us.

How does it feel to be the fish?

Bad ideas (still) never die

Douglas Berman at Sentencing Law and Policy uncovered this article in the Fort Worth Star-Telegram detailing the Tarrant County District Attorney's plan to humiliate those motorists arrested for driving while intoxicated over the New Year's weekend.

Since DA Joe Shannon is into recycling (bad) old ideas from other parts of the state - I thought I would recycle a post I wrote back in December 2009 after the Montgomery County DA's Office thought it would be a terrific idea to post the names of those arrested for driving while intoxicated on Twitter.

When will these clowns grasp the concept that a person is presumed innocent unless the state can prove each and every element of the criminal offense beyond all reasonable doubt? It really isn't that hard to get it.

Here's the updated post. Have a safe holiday weekend and remember that the easiest way to avoid a DWI this weekend is not to drive if you've been drinking.

The Montgomery Tarrant County District Attorney's Office has found a new way to humiliate those unfortunate motorists who have been arrested on suspicion of driving while intoxicated -- they are posting their names on Twitter the DA's website.

Assistant District Attorney Warren Diepraam Joe Shannon said believes that the public humiliation should act as a deterrent to others who might get behind the wheel after drinking.

Nevermind that being arrested is a very different thing than being convicted and that a person who's been arrested is still innocent unless proven guilty. And of course the police never make wrongful arrests. And of all people, Montgomery County DA Brett Ligon should know better -- after all, he used to be a criminal defense attorney. 

My question is should the DA dismiss a case against a motorist or should a motorist be acquitted by a jury of his peers, will Mr. Diepraam Shannon offer a public apology on Twitter the DA's website as well? Even more important, will a person filing for an expunction in Montgomery Tarrant County need to serve Twitter the ISP hosting the DA's website and other social networking sites, or will the judge sign an order requiring the DA's Office to notify those sites to remove all reference to the arrest of that individual?

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).

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...