Monday, January 16, 2017

The Lawyer, the Disciplinary Proceeding and the Hard Drive

This post examines an opinion from the Supreme Court of South Carolina: In the Matter of Timothy Eugene Moses, 785 S.E.2d 364 (Supreme Court of South Carolina 2016) (per curiam). The court begins by explaining that
[t]his attorney disciplinary matter stems from allegations that Respondent Timothy Eugene Moses stole thousands of dollars from his law firm (the Firm) by improperly billing clients. Respondent, who admitted to the misconduct after the Office of Disciplinary Counsel (ODC) filed formal charges, appeared before a panel of the Commission on Lawyer Conduct (the Panel). The Panel recommended Respondent be suspended from the practice of law for one year.

Both Respondent and ODC raise exceptions to the Panel's recommendation: Respondent argues his conduct justifies only a six-month suspension, while ODC argues Respondent should be disbarred. As discussed below, we agree with ODC that Respondent's conduct merits disbarment.
In the Matter of Timothy Eugene Moses, supra.
The court begins the opinion by explaining how, and why, the proceeding arose:
There is no dispute over the facts in this case.

Respondent worked for the Firm, both as a summer clerk while in law school and as an attorney following his graduation in 1994, until he abruptly resigned in September 2011. The Firm became suspicious of Respondent when a client contacted the Firm and claimed to have received a bill for $500 from Respondent asking the client to pay Respondent directly, which was in contravention of the Firm's policies. Typically, clients paid the Firm, and the Firm then paid its lawyers a fixed salary, a percentage of profits, or a combination of both.

When the chairman of the Firm's executive committee (the Chairman) confronted Respondent on October 5, 2011, about the billing abnormality, Respondent initially feigned ignorance. The next day, Respondent emailed the Chairman and admitted sending the bill, which he termed a `local’ statement, in response to the client's request. Respondent said the fact that he may have accidentally deposited the check into his personal account `embarrassed and horrified’ him, `caused [him] fits,’ and kept him up at night. After `discovering’ that he had in fact deposited the check, Respondent immediately agreed to repay the $500, plus interest. He reiterated that he was `extremely embarrassed and mortified’ and `[could not] believe [he] made such an egregious error and [he was] just sick about it.’

About a week later, Respondent met with the Firm's executive committee to discuss his actions. He claimed the two local statements he mentioned to the Chairman were the only times he had billed clients directly and was adamant that those two occurrences were isolated mistakes. The Firm's executive committee, however, remained suspicious and hired a computer forensics expert to examine Respondent's laptop to ascertain whether there were other instances of improper billing.

The forensic examination uncovered approximately $77,000 in improper invoices, dated from August 2009 through September 2011. The computer expert also testified there had been two attempts to `scrub,’ or completely erase, the computer's hard drive. The expert said those attempts were largely successful, as there was evidence of other invoices that could not be recovered.
In the Matter of Timothy Eugene Moses, supra.
The opinion goes on to explain that
[a]fter discovering the extent of Respondent's actions, the Chairman filed complaints against Respondent in Georgia and South Carolina. After Respondent became aware he was being investigated, in March 2012, he retained counsel, finally admitted to the theft, and offered to repay the money he stole from the Firm. ODC filed formal charges against Respondent on March 13, 2013, alleging violation of the following Rules of Professional Conduct, Rule 407, SCACR: Rule 1.15 (safekeeping property); Rule 4.1 (truthfulness in statements to others); Rule 8.4(b) (criminal act that reflects adversely on lawyer's honesty); Rule 8.4(d) (conduct involving dishonesty); and Rule 8.4(e) (conduct prejudicial to the administration of justice). ODC sought sanctions against Respondent pursuant to the following Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) (violation of the Rules of Professional Conduct); Rule 7(a)(5) (conduct tending to pollute the administration of justice, bring the legal profession into disrepute, or demonstrating an unfitness to practice law); and Rule 7(a) (6) (violation of the oath of office taken to practice law).

Respondent appeared before the Panel at a hearing held on October 24, 2013. The Panel issued its report (the Report) on June 9, 2015.
In the Matter of Timothy Eugene Moses, supra.
The Supreme Court then takes up the legal issues in the case, initially explaining that
[b]ecause Respondent admitted his misconduct, the hearing was mainly for the purpose of considering aggravating and mitigating factors and recommending a sanction.

As aggravating factors, the Panel considered (1) Respondent's dishonest and selfish motive and (2) the fact he committed multiple offenses and engaged in a pattern of misconduct over two years. As mitigating factors, the Panel considered (1) Respondent's lack of a prior disciplinary record; (2) Respondent's admission of guilt and cooperation; (3) Respondent's remorse for his conduct, which the Panel found to be genuine; and (4) Respondent's good character and reputation. The Panel considered Respondent's repayment of the stolen money as neither aggravating nor mitigating as it was not timely, being made only at the advice of counsel after disciplinary proceedings had begun.

The Panel appeared to give great weight to the testimony of Respondent's character witnesses: John Bell, an attorney licensed in Georgia and South Carolina; Bob Young, former mayor of Augusta and Assistant Deputy Secretary of the Department of Housing and Urban Development; and Dan Sisson, former chairman of Leadership Georgia and Leadership South Carolina. The witnesses testified to Respondent's competency as a lawyer, his participation in numerous civic and charitable organizations, and his outstanding reputation in the community, both personally and professionally. They testified Respondent's deceptive conduct was out of character and Respondent was extremely remorseful for engaging in it. The witnesses indicated they did not expect Respondent to engage in similar misconduct in the future and they still had the utmost trust in him.

The Panel concluded that the mitigating factors in this case were `significant' and therefore disbarment was inappropriate. The Panel recommended Respondent be suspended from the practice of law for one year, ordered to pay the costs of the disciplinary proceedings, and required to complete the Legal Ethics and Practice Program Ethics School and `a personal financial management program.'

Both Respondent and ODC raise exceptions to the Report and take issue with the Report's recommendation that Respondent be suspended from the practice of law for one year. Respondent argues a shorter suspension is appropriate, while ODC argues Respondent should be disbarred.
In the Matter of Timothy Eugene Moses, supra.
The Supreme Court then began its analysis of the issues, and the arguments, involved in the proceeding:
`”The authority to discipline attorneys and the manner in which the discipline is given rests entirely with this Court.”’ In re White, 391 S.C. 581, 587, 707 S.E.2d 411, 414 (2011) (quoting In re Tullis, 375 S.C. 190, 191, 652 S.E.2d 395, 395 (2007)). This Court `may accept, reject, or modify in whole or in part the findings, conclusions[,] and recommendations of the Commission [on Lawyer Conduct].’ Rule 27(e)(2), RLDE, Rule 413, SCACR. `The “central purpose of the disciplinary process is to protect the public from unscrupulous and indifferent lawyers.”’ In re Brown, 361 S.C. 347, 355, 605 S.E.2d 509, 513 (2004) (quoting In re Hall, 333 S.C. 247, 251, 509 S.E.2d 266, 268 (1998)). `The primary purpose of disbarment or suspension is the removal of an unfit person from the profession for the protection of the courts and the public, not punishment of the offending attorney.’ In re Brooks, 324 S.C. 105, 108, 477 S.E.2d 98, 99 (1996) (citing In re Fullwood, 322 S.C. 1, 6, 471 S.E.2d 151, 154 (1996); In re Kennedy, 254 S.C. 463, 465, 176 S.E.2d 125, 126 (1970)). In determining a sanction, this Court considers the punishments elicited by similar misconduct in the past. See, e.g., In re Jenkins, 346 S.C. 617, 620–21, 552 S.E.2d 734, 736–37 (2001) (citations omitted) (reviewing sanctions previously imposed by the Court `for somewhat similar misconduct’).
In the Matter of Timothy Eugene Moses, supra.
Having outlined the standards and principles it was required to apply to this case, the court began its analysis of the law and the facts in this case, explaining, initially, that
Respondent relies heavily on the absence of client harm from his misconduct in arguing for a shorter suspension, noting he stole money from the Firm, not clients. Citing In re Boyd, 388 S.C. 516, 697 S.E.2d 603 (2010), In re Sturkey, 376 S.C. 286, 657 S.E.2d 465 (2008), and In re McFarland, 360 S.C. 101, 600 S.E.2d 537 (2004), Respondent argues the Panel should have considered the lack of client harm in its analysis. See Boyd, 388 S.C. at 517–18, 697 S.E.2d at 604 (`While recognizing the seriousness of this misconduct, the Court is aware that respondent did not place any client funds at risk. . . .’); Sturkey, 376 S.C. at 293, 657 S.E.2d at 468 (`Lack of harm . . . may be considered as mitigating evidence in a disciplinary action’ (citation omitted); McFarland, 360 S.C. at 105, 600 S.E.2d at 539 (`We hold that the lack of prejudice to Client's case mitigates, but does not excuse, Respondent's misconduct’).

Respondent also relies heavily on the Panel's finding of significant mitigating factors.
Respondent argues that cases dealing with misconduct similar to his with far fewer mitigating factors resulted in suspensions of between six and nine months. Respondent cites Boyd, 388 S.C. 516, 697 S.E.2d 603 (suspending for six months a lawyer who collected $2,000 from clients he billed directly, instead of through his firm), In re Gray, 381 S.C. 406, 673 S.E.2d 442 (2009) (suspending for nine months a lawyer who, during a one-year period, overcharged clients more than $14,000 by submitting fraudulent time entries and travel reimbursement requests), and In re Lee, 370 S.C. 501, 636 S.E.2d 624 (2006) (suspending for 180 days a lawyer who overbilled a client approximately $10,000 over a nine-month period) for support. Respondent argues that, for the sake of consistency, he should receive a six-month suspension.
In the Matter of Timothy Eugene Moses, supra.
The Supreme Court then outlined the position of the ODC (Office of Disciplinary Counsel), explaining that the agency
argues that because Respondent engaged in a pattern of theft and deceptive conduct over an extended period of time, disbarment is appropriate. For support, ODC cites In re Baldwin, 411 S.C. 75, 767 S.E.2d 192 (2014) (disbarring a lawyer who, in addition to pleading guilty to breach of trust with fraudulent intent for failing to forward approximately $4,000 in client fee payments earned over a two-year period to his law firm, converted to his personal use approximately $670 in costs and fees owed to a client) and In re Curlin, 349 S.C. 287, 562 S.E.2d 652 (2002) (disbarring a lawyer who, in addition to stealing over $70,000 in law firm and client money from a real estate trust account over a three-year period, routinely forged signatures and prepared fraudulent documents, including a quitclaim deed).

ODC also argues the Panel gave too much weight to mitigating factors. ODC argues Respondent's remorse should be given little weight because he only expressed it after ODC initiated disciplinary proceedings against him, instead of when he was initially confronted by the Firm. In fact, referencing Respondent's initial responses to the Chairman in which Respondent claimed he was emotionally distressed by the mere thought of having wrongly deposited a $500 check, ODC argues Respondent's contrition at the hearing was disingenuous, which suggests the Panel should not have considered it at all. Finally, ODC argues that the testimony of Respondent's character witnesses does not mitigate Respondent's conduct because all the while Respondent was busy earning his sterling reputation, he was also busy stealing from the Firm.
In the Matter of Timothy Eugene Moses, supra.
The Supreme Court then began the process of articulating its analysis of the issues and the resolution it decided upon:
We agree with ODC that the Panel gave too much weight to Respondent's mitigating character evidence. We also find Respondent's situation to be distinguishable from the cases he cites for support.

In two of the cases Respondent cites, the attorney and ODC had entered into an agreement for discipline, and this Court merely imposed a sanction within the agreed-upon range. See Boyd, 388 S.C. at 516, 697 S.E.2d at 603 (imposing a six-month suspension when the parties agreed to `the imposition of an admonition, public reprimand, or a definite suspension not to exceed six [ ] months’); Lee, 370 S.C. at 502, 636 S.E.2d at 624 (imposing a 180–day suspension when the parties agreed to `a public reprimand or definite suspension not to exceed two [ ] years’). In another of the cases Respondent cites, we noted that `[n]either ODC nor [the attorney] complain[ed] about the recommended sanction.’ Sturkey, 376 S.C. at 291, 657 S.E.2d at 468.

In deciding a sanction in this case we find Baldwin most instructive. Between 2012 and 2013, Baldwin converted $4,000 in client fees to his personal use by (1) collecting fees from new clients of which his law firm was unaware because he did not create new case files and (2) forwarding to his law firm only a portion of the fees collected from existing clients and altering documents to make it appear as if the clients' fees were less than they actually were. Baldwin, 411 S.C. at 77, 767 S.E.2d at 193. We found Baldwin's conduct egregious enough to merit disbarment. Id. at 76, 767 S.E.2d at 193.

Like Baldwin, Respondent converted client fees that were owed to his law firm to his personal use and took great measures to conceal his theft. When confronted and given the opportunity to come clean, Respondent repeatedly and emphatically denied any wrongdoing. Respondent thereby engaged in a serious pattern of theft and dishonesty over an extended period of time. When compared to Baldwin's, Respondent's conduct is certainly egregious enough to merit disbarment. Indeed, Baldwin only stole $4,000 from his firm, while Respondent stole well over $70,000.

Given the severity of Respondent's misconduct, we conclude disbarment is the appropriate sanction. Respondent is hereby disbarred, effective retroactively to the date of filing of formal charges by ODC, March 13, 2013. Respondent is ordered to pay the costs of these proceedings within thirty (30) days of the date of this opinion. Within fifteen (15) days of the date of this opinion, Respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule 413, SCACR, and shall also surrender his Certificate of Admission to the Practice of Law to the Clerk of Court.
In the Matter of Timothy Eugene Moses, supra.
If you would like to read more about how lawyer discipline proceedings, which are the responsibility of state supreme courts and other agencies. You can find a state by state list of the latter here.

Friday, January 13, 2017

Murder, Burglary and the “Extraneous Theft”

This post examines a recent opinion from the Court of Appeals of Texas - 14th District 2017: Kahlid Yusuf Worrell v. State, 2017 WL 124351 (2017). The opinion addresses what is, at least to me, a novel scenario.  As the court explains,
[t]his is an appeal from two separate judgments. The first is a judgment adjudicating guilt, which arises out of an offense committed in 2011. The second is a judgment of conviction by jury, which arises out of an offense committed in 2015, when appellant was on community supervision. Several issues are raised between the two cause numbers, but we only address the merits of one issue in which appellant challenges the admission of extraneous-offense evidence
Kahlid Yusuf Worrell v. State, supra. You can read about the prior judgments in the news stories you can find here, here, here and here
The opinion goes on to outline the charges in and the outcome of each of the prior prosecutions, beginning with the burglary case:
NO. 14-15-00966-CR

Appellant pleaded guilty in 2011 to a charge of burglary of a habitation. The trial court deferred an adjudication of guilt and placed appellant on community supervision for a period of six years. In 2015, the State moved to adjudicate guilt, alleging that appellant had violated the terms of his community supervision by committing the murder that is the subject of the other cause number in this appeal. The trial court carried the motion with the murder trial and ruled on it after the jury returned a verdict in that other case.

Appellant's trial counsel filed notices of appeal in both the burglary case and the murder case. Appellant was appointed different counsel on appeal, and counsel here has filed a single brief addressing both cases together. In the combined brief, counsel concludes that the appeal of the burglary case (and only that case) is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel's brief was delivered to appellant, and he was advised of the right to examine the appellate record and file a pro se response. Appellant requested and was provided a copy of the record. Appellant also filed a pro se response to counsel’s Anders brief.

We have carefully reviewed the record, counsel's brief, and appellant's pro se response and agree that the appeal in the burglary case is wholly frivolous and without merit. Further, we find no reversible error in the record. We need not address the merits of each claim raised in an Anders brief or a pro se response when we have determined that there are no arguable grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).
Accordingly, we affirm the trial court's judgment in the burglary case.
Kahlid Yusuf Worrell v. State, supra. 
The court then outlines the facts and led to the charges in the appeal before it:
NO. 14-15-00967-CR
In the murder case, appellant's appointed counsel asserts three separate points of error, but they all complain of the same issue, which is the admission of extraneous-offense evidence. The State did not file a brief responding to the merits of this complaint.

Background. The complainant, a twelve-year-old boy, was fatally shot three times in his home. The exact reason for the shooting was never fully explained at trial. The evidence suggested that the complainant was merely in the wrong place, at the wrong time, caught in a terrible moment between his adult brother, Dashawn, and appellant, who was Dashawn's former friend.

Dashawn testified that he had known appellant for about a year. On the day of the shooting, Dashawn invited appellant over to his house to smoke marijuana. Dashawn also hoped that appellant would drive him to a barbershop to get his hair cut. Appellant arrived in the afternoon. He came into the living room and engaged in small talk with Dashawn. The complainant was also in the living room, watching cartoons. After a few minutes, Dashawn left for the bathroom to brush his teeth. He left the door to the bathroom open and carried on his conversation with appellant. Dashawn did not detect any sense of animosity or disagreement coming from appellant.

Without warning, appellant walked over to the area just outside the bathroom and shot Dashawn in the face. Dashawn managed to close and lock the bathroom door. Appellant then fired into the bathroom through the door. Dashawn was struck five more times. He escaped through the bathroom window and ran to a neighbor's house, where he sought help. Because he could not speak (a bullet had lodged in his throat), Dashawn used a neighbor's phone to write a message saying that he had just been shot by appellant. Dashawn also wrote that his siblings were still inside the home.

When the police arrived, appellant had already fled the scene. The complainant was pronounced dead on arrival. He had been shot in the head, in the living room where he had been watching television. Another sibling had been shot in the neck, but the bullet just grazed the skin.

The police quickly identified appellant as a likely suspect. Appellant had dialed Dashawn's house phone shortly before the shooting, and his number appeared on the caller ID. The complainant's twin had also identified appellant in a photo array. The twin was in another room when the shooting occurred, meaning that he did not witness the shooting, but the twin said that he had seen appellant in the home in the moments immediately preceding the shooting. The twin was also able to give a description of what appellant had been wearing.

Within a week of the shooting, the police found appellant driving around in the neighborhood. They initiated a traffic stop and searched his vehicle. In the trunk, they found the murder weapon, a box of ammunition, and a laptop. The laptop is the focus of appellant's extraneous-offense complaint.
Kahlid Yusuf Worrell v. State, supra.  If you are interested, you can read more about the facts in the second case in the news stories you can find here, here and here.
The opinion goes on to explain that,
In a hearing outside the presence of the jury, the State indicated that it was planning to introduce evidence that appellant had stolen the laptop. The State explained that this extraneous theft was relevant, in part, because the laptop led to the discovery of other important evidence. In its proffer, the State said that the laptop was registered to a Vietnamese man, who reported that the laptop was taken from the trunk of his car when he was shopping at Walmart. The theft occurred on the same day as the shooting, and the Walmart was less than two miles away from Dashawn's house. Based on that information, investigators sought the surveillance footage from inside the Walmart. From that footage and additional investigations, the State learned that appellant had paid cash for a box of ammunition, that the ammunition matched the kind that was both used in the shooting and found in appellant's car, and that the purchase occurred less than one hour before the shooting. The surveillance footage also corroborated the twin's description of appellant's clothing.

The State argued that the extraneous theft was admissible because of the role it played in the investigation. The State also argued that the extraneous theft was probative of appellant's motive and identity. Defense counsel objected. He argued that the evidence of appellant's purchase at Walmart could be introduced without mentioning the extraneous theft. The trial court overruled the objection.
Kahlid Yusuf Worrell v. State, supra. 
The Court of Appeals then explained that
[w]e need not determine whether the trial court abused its discretion by admitting the evidence of the extraneous offense because any error in the admission of that evidence would be subject to a harm analysis for nonconstitutional error, and under that standard, the error would be harmless.

Nonconstitutional error must be disregarded unless it affects a defendant's substantial rights. See Tex. R. App. P. 44.2(b). An error affects a defendant's substantial rights when the error has a substantial and injurious effect or influence on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight influence on the verdict, the error is harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

When assessing harm, we consider `everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.’ See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We also consider the jury instructions given by the trial court, the State's theory and any defensive theories, closing arguments, and even voir dire, if material to the defendant's claim.
Kahlid Yusuf Worrell v. State, supra. 
The court goes on to point out that the
State produced overwhelming evidence of appellant's guilt. When the complainant was killed, the only other people in his home were his siblings and appellant. Dashawn testified that appellant was the only shooter, and the physical evidence supported that finding.

A total of eleven cartridge casings were recovered from the home. Ten of the casings were aluminum, and the eleventh was brass. A firearms expert testified that all eleven casings were fired from the same weapon—the gun found in appellant's vehicle. The aluminum casings matched the brand of ammunition that appellant purchased from Walmart. Moreover, the box of ammunition found in appellant's vehicle was missing exactly ten bullets. The State suggested that the bullet with the brass casing may have already been in the chamber when appellant loaded the magazine with the bullets with the aluminum casings.

The jury also heard testimony from one of appellant's coworkers that appellant had confessed to the murder. The coworker testified that appellant called him after the shooting, during a time when there was widespread media coverage of the killing. Appellant wanted the coworker to pick up appellant's paycheck, but the coworker declined. According to the coworker, appellant mentioned during their conversation that he was trying to hurt Dashawn and that the killing of the complainant was accidental.

The evidence of guilt in this case was strong and compelling. Appellant's role in an extraneous theft was not likely to move the jury from a state of non-persuasion to a state of persuasion.
Kahlid Yusuf Worrell v. State, supra. 
The Court of Appeals went on to explain that the
appellant was charged with murder, not theft, and because two offenses are dissimilar, there is a reduced chance that the jury would have convicted appellant based on a pattern of past conduct. We also note that the jury received a limiting instruction in the charge, which further reduced the chance that the conviction was based on an impermissible inference of character conformity. See Jones v. State, 944 S.W.2d 642, 654 (Tex. Crim. App. 1996).
Kahlid Yusuf Worrell v. State, supra. 
The court then took up the remaining issues in the case:
The State did not mention the extraneous theft during its closing argument. Neither did defense counsel, which means the jury probably gave little weight to it. See Lester v. State, 889 S.W.2d 592, 594 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) (`Because the prosecutor did not mention the extraneous offense in her closing argument, the jurors probably gave little weight to it’).

However, defense counsel emphasized a different extraneous offense: the aggravated assault against Dashawn. Even though appellant did not testify, counsel accepted as true that appellant went to Walmart, that he purchased a box of ammunition, and that he then went into Dashawn's house with a loaded gun. Counsel said that all of those facts were `uncontroverted.’ What happened inside the house is where counsel's story differed from the State's. Counsel said that there was a two-person gunfight between Dashawn and appellant. Counsel's strongest piece of evidence in favor of this theory was the brass casing, which was found inside the bathroom. Counsel suggested that Dashawn must have fired the bullet from this casing (allocating all of the aluminum casings to appellant), meaning that Dashawn could have been responsible for the death of the complainant.

Counsel then argued that the State had overreached when it filed its criminal charges against appellant:

`Is he guilty of something? Damn straight. Yes, he is. Should he pay for what he did? Yes. But he should . . . pay for what he did, not for what the State has the power to charge him with. Because you know that there'[re] other offenses he can be charged with. Aggravated assault.

But appellant was not charged with the aggravated assault of Dashawn; he was charged instead with the murder of the complainant. By emphasizing this extraneous assault, counsel drew attention away from the extraneous theft and any unfair prejudice it might have created.
Based on the entire record, we cannot say that the evidence of the extraneous theft had a substantial and injurious effect on the jury's verdict. At most, the evidence only slightly influenced the jury. We conclude that any error in the admission of this evidence was harmless. See Johnson, 967 S.W.2d at 417.
Kahlid Yusuf Worrell v. State, supra. 

The Court of Appeals therefore held that the “trial court’s judgments are affirmed.” Kahlid Yusuf Worrell v. State, supra. 

Wednesday, January 11, 2017

Delinquency, the Tweets and the First Amendment

This post examines a recent opinion from the Colorado Court of Appeals:  People of Colorado In the Interest of R.D., Juvenile-Appellant, 2016 WL 7473807 (2016). This Wikipedia entry explains what juvenile courts are and how they differ from regular adult criminal courts.
The Court of Appeals begins its opinion by explaining that “R.D., a juvenile appeals the district court’s adjudication of delinquency.” In the Interest of R.D., supra. If you are interested, the site you can find here provides a clear, comprehensive overview of Colorado’s “criminal juvenile law.”  Among other things, the site cited in the previous sentence explains that Colorado law defines a “delinquent act” as a
`violation of the law over which juvenile court has jurisdiction is a delinquent act. This includes violations of state and federal statutes and court orders. There are certain violations of state law over which juvenile court does not have jurisdiction. These include non-felony state traffic laws, parks and recreation and game and fish laws or regulations; and offenses concerning tobacco products by an underage person. A juvenile who is charged with committing one of these offenses has his or her case heard in county court.’
The Court of Appeals’ opinion goes on to explain that
[t]his case arises out of an argument between students from Littleton High School and Thomas Jefferson High School on the social networking website Twitter. The argument began after a student from Thomas Jefferson High School posted a Tweet expressing support for Arapahoe High School after a shooting had occurred there. A student from Littleton High School Tweeted that students from Thomas Jefferson High School did not care about the shooting, leading to an argument between students from both schools.

As the argument progressed, R.D., a student at Littleton High School, joined the conversation. R.D. directed multiple Tweets at A.C., a student from Thomas Jefferson High School. These Tweets included:

• `[i]f I see your bitch ass outside of school you catching a bullet bitch’;
• `you a bitch, ill come to Tgay and kill you nigga’;
• `all you fuck niggas will get your ass beat real shit’; and
• `you think this shit a game, I'm not playing.’

R.D. also Tweeted a picture of a gun with the message `this all I'm saying. We don't want another incident like Arapahoe. My 9 never on vacation.’

A.C. directed multiple Tweets at R.D. in response. These Tweets included:
• `I'll see u tomorrow fuck boy];
• `you are all talk so go the fuck to bed come up to TJ and get slept’;
• `shoot then pussy’; and
• `you ain't never shot no one so sit down and get off google images bruh.’
In the Interest of R.D., supra.
The opinion then explains that, as noted above, the
People filed a petition in delinquency charging R.D. with conduct that if committed by an adult would constitute harassment by communication under section 18-9-111(1)(e), C.R.S. 2013. At a bench trial, A.C. and another student testified that they believed R.D.'s statements were threats. The district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.
In the Interest of R.D., supra.
The court goes on to explain that
R.D. argues that the application of section 18-9-111(1)(e) to his conduct violated his First Amendment right to free speech. The People respond that R.D.'s statements were not protected by the First Amendment because they were true threats and fighting words. We conclude that because R.D.'s statements were neither true threats nor fighting words, the statute as applied violated his right to free speech.
In the Interest of R.D., supra.
Before it began its analysis of R.D.’s First Amendment argument, the court noted that
[w]e review the constitutionality of a statute as applied de novoHinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007); People v. Stanley, 170 P.3d 782, 787 (Colo. App. 2007). A statute is presumed to be constitutional, and the party challenging the statute has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Janousek, 871 P.2d 1189, 1195 (Colo. 1994). Where a statute is not facially unconstitutional, a challenger must show that the statute is unconstitutional as applied to his or her conduct. People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999).
In the Interest of R.D., supra.
The court then took up the First Amendment issue, explaining that the
First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.’ Colorado's counterpart to the First Amendment, article II, section 10 of the Colorado Constitution, provides that `[n]o law shall be passed impairing the freedom of speech.’

While the First Amendment protects the right to free speech, its protection is not absolute. Stanley, 170 P.3d at 786 (citing Virginia v. Black, 538 U.S. 343, 358 (2003)). Some categories of speech, such as true threats and fighting words, are unprotected by the First Amendment and, thus, may be regulated by the government. Id. (citing Black, 538 U.S. at 359); see also People in the Interest of K.W., 2012 COA 151, ¶ 30 (citing Cohen v. California, 403 U.S. 15, 20 (1971)). Because R.D. does not assert that he is entitled to greater protection under the Colorado Constitution, we address only the First Amendment.
In the Interest of R.D., supra.
The court went on to address the related issue of “true threats,” explaining that a
threat is a statement of purpose or intent to cause injury or harm to the person, property, or rights of another, by committing an unlawful act. People v. McIntier, 134 P.3d 467, 472 (Colo. App. 2005) (citing People v. Hickman, 988 P.2d 628, 637 (Colo. 1999)). But the critical inquiry is `whether the statements, viewed in the context in which they were spoken or written, constitute a true threat.’ Id. (quoting Janousek, 871 P.2d at 1198 (Mullarkey, J., specially concurring)). A true threat is not merely talk or jest, and it is evaluated `by whether those who hear or read the threat reasonably consider that an actual threat has been made.’ Id. (quoting Janousek, 871 P.2d at 1198 (Mullarkey, J., specially concurring)).’

While whether a statement is a true threat is a question of fact to be determined by the fact finder, where First Amendment concerns are implicated, the court has an obligation to make an independent review of the record to assure that the judgment does not impermissibly intrude on the field of free expression.
People v. Chase, 2013 COA 27, ¶ 70 (Colorado Court of Appeals 2013) (citations omitted).
In determining this, we first consider the plain import of the words used. Stanley, 170 P.3d at 790 (citing Janousek, 871 P.2d at 1195). Then we look to the context in which the statements were made. Id. (citing McIntier, 134 P.3d at 472). Among other contextual factors, we may consider (1) to whom the statement is communicated; (2) the manner in which the statement is communicated; and (3) the subjective reaction of the person whom the statement concerns. Id. (citing Watts v. United States, 394 U.S. 705, 708 (1969)).

After independently reviewing the record, we conclude that R.D.'s Tweets did not constitute true threats because they were not `a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ People v. Stanley, supra (quoting Virginia v. Black, supra). While the language of R.D.'s Tweets was violent and explicit, the context in which the statements were made mitigated their tone in three ways. Id. (citing People v. McIntier, supra).
In the Interest of R.D., supra.
The Court of Appeals went on to explain how the context in which the statements were made “mitigated their tone”, as noted above. In the Interest of R.D., supra. It noted that the
first contextual factor we consider is to whom the statements were communicated. R.D. Tweeted `you don't even know me. Mf I don't even know were tf your lame bitch ass school is.’ This Tweet showed that he did not know A.C. personally and did not know where Thomas Jefferson High School was located. 

See Chase, ¶ 73 (stating that defendant personally knowing the victims and knowing where they lived supported the conclusion that his e-mails were true threats). And, R.D. never referred to A.C. by name. He addressed him only by his Twitter username of `iTweetYouShutUp.’ See id. (finding that defendant expressly referred to the named victims in his e-mails supported the conclusion that the e-mails were true threats).
In the Interest of R.D., supra (emphasis in the original).
The Court of Appeals then explained that,
[n]ext we consider the manner in which the statements were communicated. R.D. posted his messages to Twitter, a public forum. While he did use `@’ to direct his messages toward A.C., the messages could be viewed on R.D.'s Twitter homepage and were not sent to A.C. in a private message. 

So, Tweets can be differentiated from e-mails and other social media messages, which are sent directly — and usually privately — to a person or specified group of people. See id. at ¶ 74 (e-mails sent to named victims can constitute a true threat).
In the Interest of R.D., supra.
The court then noted that,
[f]inally, we consider the subjective reaction of the person whom the statements concern. When R.D. indicated that he did not know where Thomas Jefferson High School was located, A.C. responded by Tweeting the school's address: `3950 S. Holly street. I'll see u tomorrow fuck boy.’ A.C. subsequently Tweeted `you are all talk so go the fuck to bed come up to TJ and get slept” and “shoot then pussy.’ And, when R.D. Tweeted a picture of a gun, A.C. responded `you ain't never shot no one so sit down and get off google images bruh.’ 
In the Interest of R.D., supra.
The opinion goes on to explain that
A.C.'s Tweets demonstrate that he did not appear threatened by R.D.'s Tweets and that he did not take precautionary measures to protect himself from R.D. See id. at ¶ 73 (stating that victims having taken specific precautionary measures to protect themselves from defendant supported the conclusion that his e-mails were true threats).

While A.C. later testified that he believed R.D.'s Tweets were threats against him, the critical inquiry in true threat analysis is `whether the statements, viewed in the context in which they were spoken or written, constitute a “true threat.’ McIntier, 134 P.3d at 472 (quoting Janousek, 871 P.2d at 1198 (Mullarkey, J., specially concurring)). A.C.'s reaction to R.D.'s Tweets shows that he did not view the statements as true threats when they were received.

In sum, based on the context in which R.D.'s statements were made, we conclude that the Tweets did not constitute true threats.
In the Interest of R.D., supra.
The Court of Appeals then took up the next issue: “fighting words.” In the Interest of R.D., supra. It explained that
[f[ighting words are `personal abusive epithets that when directed to the ordinary citizen are inherently likely to provoke a violent reaction.’ K.W., ¶ 30 (citing Cohen, 403 U.S. at 20). In determining whether a statement constitutes fighting words, again we must consider `[t]he context or circumstances in which the language is used.’ Id. (citing FCC v. Pacifica Found., 438U.S. 726, 745 (1978)).
In the Interest of R.D., supra.
The opinion goes on to articulate the Court of Appeal’s holding on this final issue:
After independently reviewing the record, we conclude that R.D.'s Tweets did not constitute fighting words. Fighting words, by their definition, can occur only when the speaker is in close physical proximity to the recipient. Statements that are made from a distance cannot `incite an immediate breach of the peace’ because a remote recipient would necessarily have a cooling off period before he or she could confront the speaker. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Even a brief cooling off period ensures that statements will not `incite an immediate breach of the peace.’ Id. (emphasis added).

While this issue has not been specifically addressed in Colorado, a number of states have concluded that `[t]he potential to elicit an immediate violent response exists only where the communication occurs face-to-face or in close physical proximity.’ City of Billings v. Nelson, 322 P.3d 1039, 1045 (Mont. 2014); see also Citizen Publ'g Co. v. Miller, 115 P.3d 107, 113 (Ariz. 2005) (`This case does not fall within the fighting words exception to the First Amendment. The statements at issue were made in a letter to the editor, not in a face-to-face confrontation with the target of the remarks’); State v. Drahota, 788 N.W.2d 796, 804 (Neb. 2010) (`[E]ven if a fact finder could conclude that in a face-to-face confrontation, [defendant's] speech would have provoked an immediate retaliation, [the recipient] could not have immediately retaliated. [He] did not know who sent the e-mails, let alone where to find the author’); but see Davidson v. Seneca Crossing Section II Homeowner's Ass'n, 979 A.2d 260, 283 (Md. Ct. Spec. App. 2009) (upholding a permanent injunction prohibiting the sending of e-mails and letters based on the fighting words doctrine, where the enjoined party also engaged in verbal attacks and made vulgar gestures in the presence of the parties requesting the injunction).

We consider these cases well reasoned and follow them here. So, because R.D. was not in close physical proximity to A.C. at the time of the incident, his Tweets could not have constituted fighting words.

Because we have concluded that R.D.'s Tweets were not true threats or fighting words, applying section 18-9-111(1)(e), C.R.S. 2013, to R.D.'s conduct violated his First Amendment rights. For these reasons, we further conclude that the statute is unconstitutional as applied.
In the Interest of R.D., supra.