Dallas Observer has a detailed and infuriating update on a case I've blogged about for Reason back in June and July of last year, of a teen charged and held for months basically for mouthing off on Facebook.
Carter's comments were part of a duel between dorks, and may have had something to do with a game with strong dork appeal called League of Legends. But the actual details and context of the online exchange are, in the eyes of Texas authorities, unimportant. Prosecutors say they don't have the entire thread — instead, they have three comments on a cell-phone screenshot.
Prosecutors have failed to produce the entire thread containing Carter’s alleged threat, according to his attorney, Don Flanary.
One of the comments appears to be a response to an earlier comment in which someone called Carter crazy. Carter's retort was: "I'm fucked in the head alright, I think I'ma SHOOT UP A KINDERGARTEN [sic]."
Carter followed with "AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN."
He was mouthing off like a jokey jackass on Facebook with pals and/or unfriendly cronies. Someone in Canada reading it got scared and called the cops. Who arrested Carter. And held him in jail for months on $500,000 bail, where he was sexually assaulted and beaten.
And now? He's still facing charges, though out on bail thanks to a generous anonymous donor. And the charges, says Carter's lawyer Don Flanary, are b.s.
Flanary believes it's paramount that if someone is criminally charged on the basis of his words, a jury needs to see all the words. In this case, that includes whatever comment precipitated Carter's hyperbolic rant.
"If you understand the English language, when someone says, 'I'm fucked in the head alrightcomma,' that is a preparatory phrase ... in response to a previous phrase. Presumably, someone [said] to him, 'You are fucked in the head,' or words similar to that."
But Flanary says that Bates presented a truncated version of the comments to grand jurors. They did not see "I'm fucked in the head alright, I think I'ma" before "shoot up a kindergarten." If this sounds like the nitpicking of a defense attorney, that's precisely the point.
"When you're dealing with speech," Flanary says, "... it is absolutely, 100 percent important that the words that you are charging people with are actually the words that they said and not some misrepresentation. And that's what ... this prosecutor did, is misrepresent to the grand jury what he said."
Still, there's an even bigger problem, according to Flanary: His client's comments are not a "terroristic threat" as defined by the Texas Penal Code.
According to the indictment, Carter's statement met two of the necessities required by state law: His words were uttered "with the intent to place the public or a substantial group of the public in fear of serious bodily injury," or uttered "with the intent to cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service."
But Flanary likens the Facebook thread at issue to a fight on the playground. Just a couple of people spouting off. Citing two key federal court rulings, Flanary says, "There must be a clear and present danger, and there must be a true threat. And if you don't have a true threat, then the First Amendment protects your speech. Plain and simple."....
In a CNN interview, Carter's father, Jack, said that his son was under suicide watch.
"He's very depressed," Jack Carter said. "He's very scared and he's very concerned that he's not going to get out. He's pretty much lost all hope."
Carter's mother, Jennifer, told the World Socialist website in June 2013 that when she first found out her son had been arrested, "I thought as soon as the police talk to him, they will see it was a joke and let him go. If anything, it would be a misdemeanor. I thought if they talked to him, they would realize it was just his sarcastic sense of humor."
Nope, the system refuses to budge. Well, they were willing to budge a little, if Carter was as well:
Comal County prosecutors, who wanted Carter off the streets for eight years, offered 10 years' probation, with Carter pleading guilty to the felony charge. Flanary says he was insulted.
"The fact is, the case should be dismissed," he says. "He didn't do anything wrong. ... That's what dictatorships all around the world used to do. They'd say, 'If you confess to your crimes against the state, we will let you go.' I mean, fuck you. I didn't do anything wrong. ... 'Just admit you're a witch or we'll burn you. Why won't you just admit you're a witch?'"
Flanary is adamant that the case has been handled in just that way.
"The way that the criminal justice system is supposed to work and was envisioned by our founding fathers is: First you prove the crime, then you get the punishment," he says. "That's clearly how it's supposed to work. But now, in Justin's case, [it's] 'Let's do the punishment first and then we'll see if we can prove the crime later.' The damage has been done. And I suspect they know the damage has been done. I suspect that maybe one of the reasons they're holding on so hard is because they fear a lawsuit."