A Miami Beach man was recently accused of threatening President Trump on Twitter. He sent the threat directly to Secret Service, challenging them to stop his Inauguration Day surprise. They did, and Dominic Puopolo, who used the screen name of Lord Jesus Christ, is now in federal custody.
Sending a threat to the President, to an ex-wife, or to a judge is a federal felony, punishable by as much as 20 years in the federal penitentiary. But what constitutes a threat? What if the person sending a letter or email is merely angry and has no intention of carrying out the threat? What if the author is demonstrably suffering from mental problems? And are there times where the pre-trial process greatly exceeds the length and difficulty of the eventual trial of a threats case?
When it comes to threatening communication prosecutions, federal prosecutors are increasingly finding themselves stuck at the intersection of crazy and criminal. It is a juncture where seemingly serious threats might actually be meaningless rambling but where internet rants might actually reflect a true intent to harm or kill the stated victim. And in today’s bitter, divided, and tumultuous political climate, would anyone bet against threatening communications being sent to 1600 Pennsylvania Avenue? If so, please contact me, as I’ll definitely take the other side of that wager.
“The President must die. When I am released I will kill him.” U.S. v. Rendelman, 641 F.3d 36, 40 (4th Cir. 2011).
[If the President refuses to meet with me, he] “will get the worse Christmas present ever, “will suffer for 30 days,” and “will wish for death but death will not come for him.” U.S. v. Dillon, 738 F.3d, 284, 288 (D.C. Cir. 2013).
“Enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever imagined…And hell hath no fury like a crazy man in a Kindergarten class.” U.S. v. Elonis, 135 S. Ct. 2001, 2006 (2015).
The Easy Case
Certainly, a decent chunk of these prosecutions stem from imprisoned inmates taking the time to send a “I can’t wait to kill you” letter to their prosecutor (usually spelled “persecutor” in these letters) or to the judge who sentenced them to the “outrageous” sentence, often a term of imprisonment that lies perfectly within the sentencing guidelines. Further, these jail bards conveniently tend to include a return address, handwriting suitable for comparison, their name and even their inmate number, to so to avoid confusion. The sole issue in this type of case tends to be simply whether additional consecutive time will make any sort of difference to our “Cape Fear” penitentiary pal.
The Harder Case
Creatively worded threats, however, occasionally generate serious issues as to sufficiency. For example, in U.S. v. Zavrel, 384 F.3d 130 (3rd Cir. 2004), the defendant and her roommate mailed 17 envelopes containing corn starch to juveniles whom she blamed for her son’s juvenile prosecution for, wait for it, terroristic threats. The corn starch resembled anthrax, a deadly chemical that had in fact been mailed to several potential victims in late 2001. The issue decided by the Third Circuit was whether the simple mailing of corn starch established a “communication” for purposes of proving a threatening mailing under 18 U.S.C. Section 876. It was.
The other common issue, which made its way all the way to the Supreme Court, is whether the sender of the threat has to in fact intend to harm the recipient (subjective standard) or whether the sender must simply intend to communicate threatening words which are reasonably understood by the recipient to constitute a threat (objective standard). In Elonis, (2015) Chief Justice Robert’s opinion adopted the latter standard, resolving a Circuit-split that had existed for some time. Still, the issue of whether the recipient reasonably views the letter or email as a threat remains a regular feature of these cases.
The Hardest Case
The hard case is when the defendant says horrible things that are directed toward some public, possibly political figure, but it’s not clear that he or she constitutes a “true threat” to the recipient. And, the defendant already is serving a substantial prison sentence. These are the class of cases that the federal criminal justice system is least likely to deal with in a satisfactory way. There tends to be a perfect storm of factors coming together to complicate the superficially simple case: “important” victims, such as judges, the President, or prosecutors; a defendant with a serious, pre-existing mental health problem, and threatening language that is both graphic and somewhat implausible.
For example, one defendant claimed that he literally would crucify his intended victim, before signing off with “I am the Alpha and the Omega,” and some defendants openly discuss the jurisprudence of threatening communications while enlightening readers to the fact that a person “who placed a mortar launcher in the cornfield across from his wife’s residence would have a clear line of sight through the sun room…” Elonis, at 2005. And the man who threatened President Trump via Twitter casually mentioned that he is Jesus.
The typical court process for such a case is that the judge orders a mental health evaluation for competency, which results in the prisoner being shuttled to one of several federal facilities which include competency and criminal responsibility assessments. Not surprisingly, some of these defendants are kept months before they decide not to take the prescribed medications, often based upon the belief that the prison medical personnel are just part of a grand conspiracy that continues to manifest itself through each of the defendant’s cases. Not a lightly undertaken process, forcible medication of a defendant requires significant, and often lengthy, litigation as well. To the extent that the defendants fire their attorneys out of frustration, a fairly common development, the case slows to a snail’s pace.
And this becomes the most obvious challenge to the criminal justice system in this realm – the defendant, clearly suffering from some mental deficiency, is incarcerated pre-verdict for longer than his applicable sentencing guidelines and in some instances at, or approaching, the statutory maximum for his crime. Yet, he may in fact pose a danger to the recipient of his threat, so dismissing the charge is not a favored result either. In the current climate where the likelihood of these challenging cases is on the rise, the question is whether anyone or any institution will take the lead in balancing ideas of deterrence and punishment with the practical reality that many of these defendants fall outside the mainstream in terms of mental health as well as case resolution. Nobody wants to travel down the wrong road at this intersection, so bet on reaction, not pro-action.
Federal Criminal (Other), Federal Criminal Procedure, Federal Sentencing, White-collar crime
Last month police raided the home of an Illinois man who created a parody Twitter account of his city’s mayor. No charges were brought against the man because the prosecutor determined that no crime had been committed, however the man’s roommate has been indicted for possession of marijuana that was found during the overzealous raid of their residence.
Jon Daniel created the Twitter account @peoriamayor that mocked Peoria, Illinois, Mayor Jim Ardis. The Twitter account originally included a photo of Ardis, his official email address, and a brief biography. Later, the account explicitly stated that it was a parody account.
The Peoria Police Department submitted search warrants to Twitter, Google and Comcast in order to determine who was behind the Twitter account. Using the information obtained from those warrants to investigate a potential misdemeanor false personation offense, the police obtained a warrant to search Daniel’s home. During the raid police seized several computers, phones, and a bag containing a “green leafy substance.”
The Peoria County State’s Attorney’s office later concluded that they could not bring charges against Daniel for false personation because the offense could not be committed over the Internet. The false personation statute at issue in this case is a new Illinois law that went into effect earlier this year. The law makes it a misdemeanor offense punishable by up to one year in prison when a person, “knowingly and falsely represents himself or herself to be . . . a public officer or a public employee or an official or employee of the federal government.” The State’s Attorney’s Office has defended the decision of the police to obtain a search warrant stating that the police acted in good faith believing that they had probable cause to believe that a crime had been committed.
The American Civil Liberties Union of Illinois has said that it anticipates bringing litigation against the city of Peoria over the police raid on Daniel’s house.
Daniel’s roommate, Jacob Elliot, was charged with felony marijuana possession as a result of marijuana that police found during the raid of their home. Elliot spent two days in jail before he was able to make bail, and was also suspended from his job. Despite the police being misguided in their belief that Daniel had committed a crime which served as the basis of the warrant that led to the discovery of the marijuana, the Peoria County State’s Attorney’s Office is moving forward with charges against Elliot. Elliot was indicted last week on two charges of marijuana possession, including one felony charge.
Public officials have long been the target of parody, and social media has made it even more prevalent. If anything, this is an issue that could have been resolved civilly, though given the high standard for a public official to bring forth a defamation claim that avenue would most likely have been unsuccessful. More importantly, valuable police resources were wasted at the behest of a public official who was the subject of parody and this could have a potentially chilling effect on free speech. Statutes like the one responsible in this case are unnecessary and lead to the encroachment of an individual’s First Amendment rights.
Last month, the Missouri Court of Appeals published its opinion holding that criminal defendant David Polk is not entitled to a new trial. Although the prosecutor may have acted improperly by posting trial updates via Twitter, there was no evidence that her updates swayed the jury to convict Polk. The court’s decision resolves a once-cold case that began in St. Louis more than twenty years ago.
In January 1992, Polk approached an eleven-year old girl on the street, then forced her to the basement of a vacant lot and repeatedly assaulted her. Soon after, the victim and her mother reported the crime to local authorities, who collected DNA and other evidence. After that, the case went cold. But three years ago, authorities were notified of a DNA match linking Polk to the crime. The investigation was reopened and culminated in Polk’s prosecution for forcible rape and forcible sodomy. A jury convicted on both counts, and Polk was sentenced to fifteen years on each count.
After trial, Polk asked the judge to dismiss the case or strike the jury panel. In support of his request, Polk submitted evidence that, during the time frame of the trial, Circuit Attorney Jennifer Joyce had posted inappropriate comments about the case on Twitter:
- Prior to jury selection, Joyce tweeted, “David Polk trial next week. DNA hit linked him to 1992 rape of 11 yr old girl. 20 yrs later, victim now same age as prosecutor.”
- During trial, Joyce posted two comments. In the first, she tweeted, “Watching closing arguments in David Polk ‘cold case’ trial. He’s charged with raping 11 yr old girl 20 years ago.” In the second, she tweeted “I have respect for attys who defend child rapists. Our system of justice demands it, but I couldn’t do it. No way, no how.”
- During deliberations, Joyce tweeted, “Jury now has David Polk case. I hope the victim gets justice, even though 20 years late.”
- Post-verdict, she tweeted, “Finally, justice. David Polk guilty of the 1992 rape of 11 yr old girl. DNA cold case. Brave victim now the same age as prosecutor,” and “Aside from DNA, David Polk’s victim could identify him 20 years later. Couldn’t forget the face of the man who terrorized her.”
According to the defense, Joyce’s comments not only violated the professional rules of conduct but tainted the jury verdict as well. But the trial court refused to dismiss the indictment or strike the jury, and Polk appealed.
In a decision published last month, the appeals court affirmed Polk’s conviction, but acknowledged that the Circuit Attorney’s posts were problematic. The court admitted that her comments may have violated the rules of professional conduct for prosecutors. The rule in question prohibits prosecutors from making out-of-court statements that stoke public sentiment against the accused unless they serve a legitimate law-enforcement purpose. Joyce’s tweets may have crossed the line. They did not appear necessary to inform the public, but highlighted evidence against the defendant, dramatized the victim’s plight, and referred to Polk as a “child rapist,” a term that was likely to arouse heightened public condemnation.
The Court of Appeals also noted that such posts have the potential to taint a jury verdict. But the law required Polk to show more than potential prejudice—he had to show that the extrajudicial comments “substantially swayed” the jury. Because he proffered no evidence that jurors were aware of, much less influenced by, the posts, Polk was not entitled to a new trial.
Jennifer Joyce is not the first prosecutor to catch flak for abusing social media. Cleveland prosecutor Aaron Brockler was fired after he contacted defense witnesses on Facebook and dissuaded them from providing alibi testimony. But the issue in that case was the prosecutor’s confirmed use of deception to influence trial witnesses. The issue in Polk’s case was whether the prosecutor’s tweets influenced the jury, as alleged. There was no evidence to that effect, so the conviction was affirmed.