19 year old given $500,000 bail for Facebook status

[Razgovory]

Uttering Threats are are dime a dozen right here on Languish. 

This is why prosecutors ought to use their discretion. In this case, there was no specific target named and the circumstances tended to indicate the "threat" wasn't meant seriously. The details were fantastical - I mean, really, he's "threatening" to commit cannibalism. Of the still-beating heart of a child.

I've "threatened" to bake babies into matzoh more than once, in response to a "Jew Lawyer" jibe.  Is that a "clear-cut offence of uttering threats"?

+1

Nobody wants to be the guy who ignored the warning of the next school shootings.

[merithyn]

Uttering Threats are are dime a dozen right here on Languish. 

This is why prosecutors ought to use their discretion. In this case, there was no specific target named and the circumstances tended to indicate the "threat" wasn't meant seriously. The details were fantastical - I mean, really, he's "threatening" to commit cannibalism. Of the still-beating heart of a child.

I've "threatened" to bake babies into matzoh more than once, in response to a "Jew Lawyer" jibe.  Is that a "clear-cut offence of uttering threats"?

+1

Nobody wants to be the guy who ignored the warning of the next school shootings.

Pretty much.

[Malthus]

Uttering Threats are are dime a dozen right here on Languish. 

This is why prosecutors ought to use their discretion. In this case, there was no specific target named and the circumstances tended to indicate the "threat" wasn't meant seriously. The details were fantastical - I mean, really, he's "threatening" to commit cannibalism. Of the still-beating heart of a child.

I've "threatened" to bake babies into matzoh more than once, in response to a "Jew Lawyer" jibe.  Is that a "clear-cut offence of uttering threats"?

+1

Nobody wants to be the guy who ignored the warning of the next school shootings.

The take-away message is that hysterical over-reaction to tragedy does more to erode basic freedoms than the deliberate government plotting feared by so many. 

[OttoVonBismarck]

I think the reaction of law enforcement isn't actually an erosion of freedom. It seems like it was something they should investigate, someone was making illegal threats--a crime in much of the English-speaking world to my knowledge.

I think the problem instead relates to the combined issues of bail and our overburdened court system which in combination I believe are routinely denying people of core constitutional protections. I'm too lazy to search for it now, but I may later, but there is actually an organization of local and maybe even Federal judges that has formed specifically to advocate for a change to the American bail system.

Their argument basically is that for various reasons bail decisions are being made poorly by many judges in contravention to the reasons for bail. Bail started in America as a way to insure someone who might flee stays for their trial when you have otherwise have no good reason to jail them. Examples are people of moderate or better means with no ties to the community who might be easy to just pick up and leave town. Persons who were dangerous/deranged you just denied them bail entirely. People who were neither dangerous or likely to flee, you let them go on their own recognizance. Some bail statutes now give judges less leeway, but some judges are just doing a bad job, the group I mentioned argues that the standard thought process now is all criminal defendants should require bail before you can release them--something that explicitly goes against the history of bail in the United States.

So bail is fucked up for one, and our bail system. But in addition to that, our court systems have ground almost to a halt due to lack of funding and staffing. In age past, a case like this would have gone through several hearings long ago, and the prosecution would have had to make far stronger arguments as to why the case should be allowed to continue etc. In this kid's case I don't think he's even had a single day in court. There's another set of advocates who argue that we've basically thrown away or lost our right to a speedy trial, because appellate courts, so sensitive to the overburdened criminal court system are unwilling to mandate the release of thousands of defendants even though in truth they have probably be denied their right to a speedy trial.

This kid is just an example of this situation. In his case he was arrested for goofy reasons so that makes it more newsworthy. But there are lots of people who have no business being in jail for months or even longer on pre-trial confinement in his same situation. Many of them are almost certainly guilty, but they're guilty of minor crimes, and should be released while they are being tried.

[Malthus]

I think the reaction of law enforcement isn't actually an erosion of freedom. It seems like it was something they should investigate, someone was making illegal threats--a crime in much of the English-speaking world to my knowledge.

Nonsense. "I'm going to kill you, Mr. X" is a threat, depending on the context - if it was, all factors taken into consideration, intended to be taken seriously as an intimidation. "I'm going to eat the beating heart of a child" isn't - it's more accurately termed 'stupid internet trash talk'. There is tons of that right here on good old Languish.

Case law here in Ontario, part of the "rest of the English Speaking world", requires for a conviction for uttering threats that the Crown prove specific intent. An example case:

10. There is authority to support the defence submission that uttering threats is a specific intent offence. See: R. v. Bone [1993] M.J. No.222 (C.A.), applied in numerous trial decisons including recently in R. v. Standing [2007] S.J. No.469 (Prov.Ct.).

11. The Supreme Court of Canada set out the mental element of the offence of uttering threats in R. v. Clemente [1994] S.C.J. No.50 (S.C.C.). The words must be meant to intimidate or to be taken seriously. The accused's consumption of alcohol is a factor to be assessed in considering whether the Crown has proved that the threat was meant to intimidate or be taken seriously. R. v. Loury [2002] O.J. No.3954 (C.A.)

12. Considering:
-         the context in which the words were spoken,

-         the fact that the comments were directed towards police officers,

-         the content of the comments which threaten to cause death in a specific manner – by shooting,

-         evidence that the accused is registered to possess firearms and does possess firearms,

-         the manner in which the words were spoken which caused the officers to fear for their safety

-         the evidence of the accused's consumption of alcohol which shows that while his actions were out of character, he nevertheless had the capacity to form the intent to intimidate and did form the intent to intimidate the officers by making those statements R. v. Daley [2007] S.C.J. 53 at paras.40-42.

I find that the Crown has proved that the threats to kill the three officers were meant to intimidate.

http://www.canlii.org/eliisa/highlight.do?text=uttering+threats&language=en&searchTitle=Ontario&path=/en/on/oncj/doc/2008/2008oncj54/2008oncj54.html&searchUrlHash=AAAAAQAQdXR0ZXJpbmcgdGhyZWF0cwAAAAAAAAE

Words that are not meant to intimidate or to be taken seriously are not "threats" even if they are about inflicting death. From the headnotes of our leading Supreme Court decision:

http://www.canlii.org/eliisa/highlight.do?text=R.+v.+Clemente+&language=en&searchTitle=Canada+%28Federal%29&path=/en/ca/scc/doc/1994/1994canlii49/1994canlii49.html&searchUrlHash=AAAAAQAPUi4gdi4gQ2xlbWVudGUgAAAAAAAAAQ

The actus reus of the offence is the uttering of threats of death or serious bodily harm.  The mens rea is that the words were meant to intimidate or to be taken seriously.  Words spoken in jest or in such a manner that they could not be taken seriously could not lead a reasonable person to conclude that the words conveyed a threat.

The point is that the words, in context, must be capable of being taken seriously or be meant to intimidate. Anyone seriously believe this 19 year old's' game forum posting about eating hearts qualifies here? This case would be laughed out of court here in Ontario; can't say how it would be received in Texas, of course. 

I think the problem instead relates to the combined issues of bail and our overburdened court system which in combination I believe are routinely denying people of core constitutional protections. I'm too lazy to search for it now, but I may later, but there is actually an organization of local and maybe even Federal judges that has formed specifically to advocate for a change to the American bail system.

Their argument basically is that for various reasons bail decisions are being made poorly by many judges in contravention to the reasons for bail. Bail started in America as a way to insure someone who might flee stays for their trial when you have otherwise have no good reason to jail them. Examples are people of moderate or better means with no ties to the community who might be easy to just pick up and leave town. Persons who were dangerous/deranged you just denied them bail entirely. People who were neither dangerous or likely to flee, you let them go on their own recognizance. Some bail statutes now give judges less leeway, but some judges are just doing a bad job, the group I mentioned argues that the standard thought process now is all criminal defendants should require bail before you can release them--something that explicitly goes against the history of bail in the United States.

So bail is fucked up for one, and our bail system. But in addition to that, our court systems have ground almost to a halt due to lack of funding and staffing. In age past, a case like this would have gone through several hearings long ago, and the prosecution would have had to make far stronger arguments as to why the case should be allowed to continue etc. In this kid's case I don't think he's even had a single day in court. There's another set of advocates who argue that we've basically thrown away or lost our right to a speedy trial, because appellate courts, so sensitive to the overburdened criminal court system are unwilling to mandate the release of thousands of defendants even though in truth they have probably be denied their right to a speedy trial.

This kid is just an example of this situation. In his case he was arrested for goofy reasons so that makes it more newsworthy. But there are lots of people who have no business being in jail for months or even longer on pre-trial confinement in his same situation. Many of them are almost certainly guilty, but they're guilty of minor crimes, and should be released while they are being tried.

In contrast, these are all good points; what you are overlooking is the claim in the article (again, can't assess it) that the $500 K bail is extremely unusual. 

[Eddie Teach]

The point is that the words, in context, must be capable of being taken seriously or be meant to intimidate. Anyone seriously believe this 19 year old's' game forum posting about eating hearts qualifies here? This case would be laughed out of court here in Ontario; can't say how it would be received in Texas, of course. 

Well, a Texan might actually mean it. 

[Barrister]

Malthus, you keep focusing on "eating the beating heart of a child", when the most chilling words were "I think Ima shoot up a kindergarten".

The "specific intent" required is that you meant to threaten people, not that you are going to carry out on your threat.

You wish to classify this as "internet trash talk", but there is no such legal category.  It's true that the internet has typically not been policed, well, at all, so it has developed something of a culture of allowing behaviour that would not be tolerated in any other context.  But that's culture, not the law, and we are seeing more and more enforcement of the law on the internet, both in child porn of course, but in cyber bullying and intimidation as well.

[Eddie Teach]

You wish to classify this as "internet trash talk", but there is no such legal category.  It's true that the internet has typically not been policed, well, at all, so it has developed something of a culture of allowing behaviour that would not be tolerated in any other context.

Things that would not be socially tolerated, but legally would be. Though perhaps our freedom of speech isn't a guarantee anymore. 

[CountDeMoney]

500K bail is still pretty punitive, particularly since he's been locked up so long;  usually, the court will drop the bail some the longer he's been locked up.

[Barrister]

500K bail is still pretty punitive, particularly since he's been locked up so long;  usually, the court will drop the bail some the longer he's been locked up.

Yeah, that number seems insane.

Bail isn't supposed to be prohibitively high.  If you think the guy is a real menace to society if released you should deny his bail.  Otherwise bail should be an amount that can realistically be raised.

[CountDeMoney]

Right, the point of bail is to ensure an appearance.  Either he has the means to skip, or he doesn't.  Don't want him on the street?  Don't offer bail.  And a 19 year old isn't what I'd call someone with the means to be a flight risk.

[Valmy]

You wish to classify this as "internet trash talk", but there is no such legal category.  It's true that the internet has typically not been policed, well, at all, so it has developed something of a culture of allowing behaviour that would not be tolerated in any other context.  But that's culture, not the law, and we are seeing more and more enforcement of the law on the internet, both in child porn of course, but in cyber bullying and intimidation as well.

So if we were playing a table top game together and I made this a joke about eating your babies in the midst of trash talk I would be arrested at once?

[Barrister]

You wish to classify this as "internet trash talk", but there is no such legal category.  It's true that the internet has typically not been policed, well, at all, so it has developed something of a culture of allowing behaviour that would not be tolerated in any other context.  But that's culture, not the law, and we are seeing more and more enforcement of the law on the internet, both in child porn of course, but in cyber bullying and intimidation as well.

So if we were playing a table top game together and I made this a joke about eating your babies in the midst of trash talk I would be arrested at once?

I'm not a cop - I can't arrest anyone.   You'd have to wait for me to call them before you get arrested.

[Siege]

I'll arrest Valmy for you.

Army style.

[OttoVonBismarck]

I don't think it was an advocacy group so much as the U.S. Conference of Chief Justices (the 50 Chief Justices from the 50 State highest courts that were railing about bail.

The CJ of New York lays out some good points here. The situation in New York is pretty typical, judges are often times left either imposing bail which defendants cannot pay, or just releasing them with no other options. Many judges would like the option to say, "we'll offer you release, but with home confinement" or "release, but with the stipulation you need to check in every so often, or be drug tested every so often." In some States judges can do that as a routine part of pretrial conditional release, but in some States they basically can release you on bail, hold you without bail, or release you on your own recognizance with little granularity between those options.

Andrew Cohen (a weenie lefty constitutional lawyer that writes for the Atlantic), decently describes some of the speedy trial problems in this article. In one case it appears a Louisiana defendant on trial for murder has been in pretrial confinement for seven years and has yet to face a full trial.