"Wiretapping" Trial of CopBlock Founder Begins Today

For those keeping track (and you should be!), the trial of CopBlock founder Adam "Ademo Freeman" Mueller begins today. Mueller faces a potential 21 years in prison for the high crime of recording phone calls with public officials while seeking comments on a video of police brutality at a New Hampshire high school. You see, Mueller identified himself to the public servants as a CopBlock representative when he reached them at their offices, and explained the reason for his call, but he didn't explicitly say he was recording the conversation. Prosecutors insist that's a felony.

The Union-Leader explains the basis for the charges:

The conversations involved an incident Oct. 3 at West High School in which a school resource officer arrested a student in the cafeteria. The incident was videotaped by another student, who had met Mueller and his CopBlock.org co-founder, Peter Eyre, a few weeks before.

Mueller is accused of recording conversations about the incident Oct. 4 with Police Capt. Jonathan Hopkins, West Principal Mary Ellen McGorry, and West secretary Denise Michael, without their consent.

The student video shows the officer grab a student, push him face down on a cafeteria table and handcuff him. As part of the videotape posted on CopBlock.org, Mueller included portions of recorded phone calls with Hopkins, McGorry and Michael.

Under the state's wiretap law, it is a crime to audio-record someone without his permission if the speaker has a reasonable expectation that what he is saying is not subject to interception.

New Hampshire law says:

570-A:2 Interception and Disclosure of Telecommunication or Oral Communications Prohibited. –
    I. A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:

But the law also states that the person being wiretapped must be "exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." And, of course, it includes exceptions for law enforcement.

So ... Does a government official, in a taxpayer-supported office, using publicly funded phones to answer questions from an activist, journalist or any other person under the sun about official business really have an expectation of privacy?

Carlos Miller of Photography Is Not a Crime, who has worked with Mueller, has an in-depth post up at which he writes, "It was clear from the conversation that Mueller was seeking on-the-record comments and it was clear from the responses of both police and the school official that they were well aware of that."

New Hampshire prosecutors, however, apparently disagree. More to the point, I should say, they see an opening for going after an individual who has caused them some degree of inconvenience. So it's probably wise that Mueller's supporters are getting a jump on the state's jury nullification law, which, starting next year, requires that jurors be notified of their right to judge laws as well as the facts of cases, and are distributing information of their own.

The trial is, as you'd expect, getting full coverage at CopBlock.org. And check out Carlos Miller's post for very helpful video and background.

Update: Mueller was found guilty and "sentenced to just under three months behind bars." And yes, that was pretty damned fast.

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  • The Late P Brooks||

    Maybe I'm just dense, but how is it a crime to make a record of a public official speaking about a matter which is already public knowledge? Official Business is not private.

  • ||

    Nothing public servants say or do in the course of their duties should be private.

  • ||

    As written, there's no exception for that either. Public meetings cannot be recorded without consent.

  • R C Dean||

    Public meetings cannot be recorded without consent.

    Sure they can, under the plain terms of the statute. The wording is interesting: the person must be "exhibiting an expectation" that there will be no recording.

    I'm curious as to what the prosecutor will point to as an affirmative "exhibiting" of this expectation in the trial.

    It goes without saying that a public meeting, or an on-the-record phone call with a journalist, are not "circumstances that would justify such an expectation", so really that's moot. If the defense can show that the circumstances don't justify the expectation, the lack of an expression of the expectation is just overkill.

  • ||

    My bad...I overlooked the definition of Oral Communication.

  • Fist of Etiquette||

    ...getting a jump on the state's jury nullification law, which, starting next year, requires that jurors be notified of their right to judge laws as well as the facts of cases...

    They're actually doing that? What legislators actually put a check in place on their own power?

  • ||

    The "Extremists" in the NH GOP.

  • nipplemancer||

    He was found guilty of 3 charges about 20 minutes ago. No link, just in communication with some of the folks at the courthouse.

  • Joe R.||

    Trial began today and he's already been found guilty? That was fast.

  • nipplemancer||

    From seating the jury to closing it was only about 3 hours. It took the jury about a half an hour to come up with their verdict.

  • Brandybuck||

    Sounds like a railroad to me!

  • Almanian's Evil Twin||

    ...and this train's runnin' ON TIME.

  • RBS||

    Holy shit, that is ridiculously fast. The jury did not deliberate at all, they just took everything the prosecution said and ran with it. Terrible.

  • ||

    That's what they do 99% of the time. It was foolish to think this time might be different.

  • RBS||

    True but 30 mins isn't even pretending to give a shit.

  • ||

    It turns out he represented himself. That probably had something to do with it.

  • RBS||

    Yeah, I can't imagine that played well with the jury.

  • Mr Whipple||

    It turns out he represented himself. That probably had something to do with it.

    That's a damn shame. I will never, ever try to represent myself on so much as a fucking traffic ticket that I plan on pleading guilty to.

  • Joe R.||

    Yup, just found the story online. He acted as his own counsel. That explains it.

  • RBS||

    Always a bad idea.

  • sarcasmic||

    "He who is his own lawyer has a fool for a client."

  • Agammamon||

    Isn't it "he who is his own laywer has a fool for a doctor, and a bad haircut".

  • Zeb||

    That's a lemma to what sarcasmic said.

  • Almanian's Evil Twin||

    Oh boy...

  • nipplemancer||

    Sadly you are correct.

  • sticks||

    Was there at least an attempt at getting a legal fund going for him or is he just that dumb?

  • nipplemancer||

    There is/was. Not sure what happened, but Ademo seemed like he wanted to represent himself from the beginning.

  • ||

    Why would he be so stupid?

  • ||

    Losing allows you to escalate to a higher court. Maybe he's going for the big win.

    More likely he's stoopid.

  • Adam330||

    Only if you properly preserve the issues for appeal. And my guess is, he doesn't know how to to that.

  • BakedPenguin||

    He can always claim inadequate counsel. He'd probably be right.

  • RBS||

    That'd be fun. You get appointed counsel to prove how much you fucked up your own defense.

  • Mr Whipple||

    Maybe he wanted to be found guilty and go to prison. I have a friend whose sister was an extreme Pro Lifer. He was telling me that they want to get arrested and be locked up to help bring awareness to their cause, or some stupid shit like that.

  • Raston Bot||

    did he at least shave and put on a suit?

  • Enjoy Every Sandwich||

    Maybe. On the other hand he may simply have saved himself a shitload of money because I think he would have been fucked either way.

  • Raston Bot||

    So the prosecution convinced the jury that a public official had their communications intercepted by the journalist they were speaking with on their phone?

    That sounds outside the spirit of the law.

  • Whahappan?||

    "So the prosecution convinced the jury that a public official had their communications intercepted by the journalist they were speaking with on their phone?

    That sounds outside the spirit of the law."

    Yes, but the prosecutor will knowingly misrepresent the law, and the judge will back him up and mislead the jury with his instructions. SOP in our legal system.

  • Brett L||

    OT: Shooting in College Station, TX.

    What we know so far is that the incident started shortly after noon, local time, "when a man barricaded in a house, armed with an automatic weapon, opened fire on officers,"

  • Almanian's Evil Twin||

    So which Tea Party does he belong to?

  • Brett L||

    I can't wait to see the further revisions to this story (They already confused UT with TAMU). I mean, its all racist teabagger flyover country, right?

    Note: An earlier version of this story identified Texas AM as the scene of the 1966 tower shooting, but that was incorrect. The tower shooting took place at the University of Texas, in Austin.

  • Jerry on the road||

    http://calendar.tamu.edu/acade....._id=11476
    Today was grade day, coincidence?

  • nipplemancer||

    interesting tidbit - the judge actually allowed Ademo to bring up jury nullification in his arguments. Too bad the jury didn't pay attention.

  • The Late P Brooks||

    Too bad the jury didn't pay attention.

    Unfortunately, "can" not same as "will".

    Maybe they think the Overlord Class deserves deference and unquestioning obedience from the proles.

  • Almanian's Evil Twin||

    Because "RESPECT MY AUTHORITAH!", thay's why.

    Thought we needed something besides "FUCK YOU!" For variety. You're welcome.

  • sloopyinca||

    He should have used a mens rea defense and pleaded ignorant of the law's requirement and then gone after the constitutionality of the law at a later date in a different venue. It sounds like that would have been the truth, after all.

    Jesus Christ. Does one have to be a public "servant" to use the "I didn't know the law" defense? It sure seems to work for cops that illegally arrest and detain (i.e.: false imprisonment) people who legally record their activities.

    This is a fucking absurdity, pure and simple. Had this man been wearing a badge and accidentally broken the law, he would not only be getting off, the case never would have been brought to trial. And in New fucking Hampshire of all places! Did the fucking FSP sit this one out? Why weren't people outside raising hell as the potential jurors went into the building this morning?

  • sarcasmic||

    Does one have to be a public "servant" to use the "I didn't know the law" defense?

    I'm pretty sure the answer is yes.

    In some cases mens rea requirement is explicitly removed in the statute, but in practice I'm pretty sure that it doesn't really matter.

    Unless you're a public servant.

  • nipplemancer||

    Did the fucking FSP sit this one out? Why weren't people outside raising hell as the potential jurors went into the building this morning?


    They were out in force. Sometimes you just lose.

  • Adam330||

    I bet the chances are high that all calls to the police department get recorded. I also bet that none of the officers have been prosecuted for it.

  • ||

    Probably because they say "this call is being recorded" which satisfies notification

  • Adam330||

    If so, then the officer knew the call was being recorded too.

  • ||

    Yes, in those cases. Apparently not in this one

    The prosecution is suss as fuck, but this guy was a moron for not simply advising " I am recording you"

    The NH legislature passed this stupid law . Why?

    Probably because they were afriaid of being recorded doing something unethical or illegal IMO

  • Adam330||

    The likely didn't know the law. And even if he did, he probably assumed that speaking with a police officer about official matters on an official phone is not private. Given that there are thousands upon thousand of laws and they're incredibly complex, he should be excused for that. Police officers are routinely excused for not knowing the details of the law, particularly where the law is unsettled (see e.g. qualified immunity), and it's their job to enforce it. Not sure why the rest of us shouldn't get the same respect.

  • sarcasmic||

    Not sure why the rest of us shouldn't get the same respect.

    Because "fuck you", that's why.

    You should know that by now.

  • Lost_In_Translation||

    The prosecution is suss as fuck, but this guy was a moron for not simply advising " I am recording you"

    yep, as most amateurs are. but this has more to do with him not respectin authoritah than the actual law he broke. If he had recorded a salesman lying about his product, there is no way the state prosecutor would have brought him to trial.

  • The Late P Brooks||

    Does one have to be a public "servant" to use the "I didn't know the law" defense?

    "Ignorance is no exc... Oh, it's you again. DISSS MISSED."

  • The Late P Brooks||

    Maybe he decided to represent himself because he was tired of hearing, "Just take the deal, and STFU!"

  • Raston Bot||

    Any word on sentencing?

  • ||

    In WA I am required by law to disclose I am recording a phone conversation or face a gross misdemeanor. I'd like to see the jury nullify because the prosecution is suss as hell

  • ||

    WA statute

    http://apps.leg.wa.gov/rcw/def.....e=9.73.030

    No exception for law enforcement officers, but exception for emergency calls

    Note our statute references "private conversation" and case law says cops and noncops on a call are not engaging in private conversation, so "citizens" can record us and vice versa legally

    As it should be

  • R C Dean||

    What an idiot. If you're looking at 21 years, YOU DON'T FUCKING REPRESENT YOURSELF!

    His defense probably was "Yeah, I did it. What are you gonna do about it? Because, nullification."

  • Joe R.||

    No kidding. If it was a $1000 fine I could understand since he'd pay more than that in legal fees anyway. But potentially 21 years? That's crazy.

  • John||

    This should die on appeal. Every government phone comes with a warning that says you can be recorded. You have no expectation of privacy on a government phone. If they were prosecuting this clown, no way would the cops claim he had an expectation of privacy on his government phone and bother with a warrant before tapping it. They would have just tapped it because it is a government phone.

  • ||

    People are confusing two issues.

    Saying one does not have an expectation of privacy in a conversation doesn't mean it's legal to record it.

    E article makes that error as do you.

    Fwiw, I have used phone tips on several investigations (tipping the phone so others can hear and witness the co versatile) because I knew I WOULD be prosecuted if I recorded it. I had to do that on a dv order violation case because, without a warrant it would have been illegal to record it

    The NH law is poorly written. They could have included an exception for recording such conversations but didnt

  • Lost_In_Translation||

    Saying one does not have an expectation of privacy in a conversation doesn't mean it's legal to record it.

    The only difference in the lack of privacy is that it can be used in court. Otherwise, you can go out and tell people all you want what the fucker said. He can lie and deny it if you don't have the recording.

    Which is why the law is dumb

  • ||

    I totally agree. I've criticized these laws for years. Like I said, I can put a conversation on speaker phone during an investigation so I can have multiple witnesses to what was said, I just can't record it!

    That's retarded, it works to protect the criminal and the corrupt and works against justice

  • GW||

    Isn't that just hearsay?

  • Adam330||

    "Saying one does not have an expectation of privacy in a conversation doesn't mean it's legal to record it."

    It does in NH when it comes to "oral communications." The law says:
    "A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
    (a) Wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication;"

    Oral communication is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."

    So the legality turns on whether the person being recorded has a reasonable expectation that the conversation won't be recorded, i.e. that it will remain private.

    Unfortunately for this guy, "telecommunication" is also defined, and has no expectation component

  • R C Dean||

    Saying one does not have an expectation of privacy in a conversation doesn't mean it's legal to record it.

    It does when the statute states that you cannot prosecute someone for recording a conversation unless (a) the circumstances justify an expectation that the conversation won't be recorded and (b) the other person exhibits an expectation that it won't be recorded.

  • ||

    Btw, your statement is false. None of the phones in my PD have such a warning. And they are all government phones.

    You are probably thinking of calls from some correction facilities which DO have such a warning, although exceptions are made for attorney calls

  • Lost_In_Translation||

    Yeah,

    I imagine most regular office phones (not official department phones) probably don't have warnings, especially in small towns.

    That said, there is implied consent that you are being recorded every time you pick up the phone and talk to someone (but not by 3rd parties). That should be the law of the land.

  • ||

    I totally agree. If a person can TESTIFY to what wa s said, he should be able to record it

  • Lost_In_Translation||

    And the only time you ever see these cases prosecuted is when it is a government official that was recorded. Private individuals record stuff all the time against other private individuals and the state rarely decides to prosecute. At worst it ends up as a civil suit.

  • John||

    No Dunphy, I am think of the phone sitting on my desk. And somehow I am not surprised some podunk PD has shitty lawyers who don't put the proper warnings and banners on their IT equipment.

  • Lost_In_Translation||

    I really don't think we should encourage the government to get automatic recordings for every level of communication. We're broke as is. Just revise these laws to specify that only 3rd party recording (not consented to by either party) is disallowed and 99% of the cases disappear.

  • ||

    Btw, it's clear prosecutors are correct. On the law. The llaw is stupid, but it's the law passed duly in nh.

    Apparently the NH law doesn't limit the recording requirement to PRIVATE conversations, like my state, which offers people an "out" for recording conversations with on duty Leo's

    The FSP should have been working to repeal this law long before the trial, ... It's an unjust, stupid law, that works against justice. Why wait until some poor sap is prosecuted for it?

  • Lost_In_Translation||

    I agree the law is crap and should be rescinded. I also believe the prosecutor is crap and should have opted to not prosecute based on the fuzzy legal area this case was in. Furthermore, this man's punishment should be he has to pay the court $100 and go home and think about what he's done and start a petition to remove the stupid law.

  • RBS||

    You probably won't be surprised to find out that sometimes low level prosecutors don't want to prosecute shitty cases like this. Then the cops bitch to the boss non stop until something is done.

  • Lost_In_Translation||

    mmm, i love official corruption in the morning.

  • RBS||

    Cops are incredibly sensitive little snowflakes. Everything is personal and must be prosecuted to the fullest.

  • Zeb||

    Especially when it is something that makes them look bad.

  • R C Dean||

    Btw, it's clear prosecutors are correct. On the law.

    I don't think they are.

    I see no reason why the circumstances justified an expectation that there would be no recording, and I certainly don't see anyone "exhibiting" an expectation of no recording.

  • Adam330||

    Check out the definition of oral communication v telecommunication. Only oral communication has the expectation prong. This guy recorded a phone call.

  • RBS||

    How is a phone call not "oral"?

  • Adam330||

    It probably is. But it's illegal to record either an "oral communication" or a "telecommunication." So even if he's saved by the expectation portion in the definition of "oral communication," he's still violated the telecommunication portion of the statute.

  • R C Dean||

    True, Adam330.

    It comes down to saying that he could not be prosecuted for recording the conversation as an "oral communication", but could be prosecuted for recording the exact same conversation as a "telecommunication."

  • R C Dean||

    I wonder if there isn't an argument that the oral communication doesn't have to be face-to-face, that it can be over the phone, for the expectation-and-exhibition requirement to apply.

  • ||

    Why wait until some poor sap is prosecuted for it?

    Few courts will grant you standing proactively.

  • RBS||

    To be fair, he's talking about legislative action.

  • Rich||

    "It was clear from the conversation that Mueller was seeking on-the-record comments and it was clear from the responses of both police and the school official that they were well aware of that."

    And "it is clear", how? Because statements were captured on the *illegal* recording?!

    BWAHAHAHAA!!

  • ||

    In wa, even if the call is recorded by a private citizen, not only can he be prosecuted, but in a rare example of the exclusionary rule being applied to NON LAW ENFORCEMENT, it cannot be used at a trial as evidence against another. Iirc, it might be available as rebuttal, but not as direct

    Where was FSP when this fucked up law was passed?

  • Zeb||

    I think it didn't exist yet. Most wiretapping laws are pretty old, I think. And although it is a terrible law, it is not exactly at the top of the list of injustices in most people's minds.

  • R C Dean||

    On examination of the aggrieved public servant, ask him "What did you say that exhibited your expectation that would be no recording?"

    If he says "Nothing", it should be case closed, defendant walks.

    If he says, well, much of anything, then the recording becomes admissible.

  • ||

    What dear J.D. fails to point out is that these are the Motorhome Diaries boys. They are hot and they like freedom. I'm a fan.

  • ||

    Caselaw establishes that individuals can tape record conversations with law enforcement in public places. For example, in State v. Flora, 68 Wn. App. 802, 845 P.2d 1355 (1992), the defendant attempted surreptitiously to tape record his contact with police officers arresting him on a public street outside his home. Flora, 68 Wn. App. at 804-05. The State charged Flora with violating RCW 9.73.030. Flora, 68 Wn. App. at 805. On appeal, Flora argued that the conversation was not a private one subject to RCW 9.73.030; Division One of our court agreed. Flora, 68 Wn. App. at 805.
    Addressing whether police officers performing their public duties had a privacy interest, Flora, 68 Wn. App. at 807, and

  • ||

    recognizing that RCW 9.73.030 did not define “private,” the court stated:
    . . . Washington courts have on several occasions construed the term [“private”] to mean:
    secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly; not open or in public.
    Flora, 68 Wn. App. at 806 (quoting State v. Slemmer, 48 Wn. App. 48, 52, 738 P.2d 281 (1987) (quoting State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978) (quoting Webster’s Third New International Dictionary (1969)), review denied, 82 Wn.2d 1006 (1979)), overruled on other grounds by State v. Frohs, 83 Wn. App. 803, 811 n. 2 (1996)). The court further held that
    this definition was consistent with the legislature’s purpose in enacting the statute. Flora, 68 Wn. App. at 807. And it rejected the State’s argument that “police officers possess a personal privacy interest in statements they make as public officers effectuating an arrest,” stating, “We decline the State’s invitation to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity.” Flora, 68 Wn. App. at 807-08.6

  • Lost_In_Translation||

    frankly, i think any conversation in which one side consented to the recording should be legal, be it private or non-private. Otherwise, all you're doing is encouraging lying.

    3rd party recording is all that should be illegal and I doubt anyone will argue against that.

    These laws were written poorly by honest people at best and by liars to protect themselves at worst.

  • Zeb||

    I think that makes sense. If you are participating in the conversation and not deceiving anyone about your identity or intentions, you should be allowed to record it.

  • Raston Bot||

    3 months is less than I expected. That's a smart judge.

  • R C Dean||

    Too bad he wasn't a good judge.

  • Lost_In_Translation||

    how many days until he is eligble for probation?

  • Mr Whipple||

    Usually, when you plead not guilty and lose, judges tend to hand out stiffer sentences. I wonder if they offered him a pretrial deal?

  • Coeus||

    I linked to the Policeone article the first time this came up. There was universal glee at the abuse of the wiretapping laws in the comments. I'll link the triumphant followup article when it's posted.

  • ||

    The prosecutor should be ashamed.

  • Whahappan?||

    You're assuming the prosecutor has a sense of shame. Most prosecutor's and police (sorry Dunphy) willingly sold their souls and any sense of human decency for power without a second thought.

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