Oct 23 2014

Beware of Beautiful Hawaiian Beaches -You May Get Sued!

Hawaii has some of the most beautiful beaches in the world. Capturing a breath-taking view of one really requires being in the right place at the right time.  And no one has been in the right place at the right time more than Vincent Tylor (Note: Vincent Khoury Tylor is the father of Vincent Scott Tylor- both are Hawaiian Photographers) (We’ll call them collectively “VT”). VT has made a career of taking and selling his scenic photographs of Hawaiian beaches through his own websites like HawaiianPhotos.net and HawaiianPictures.com. But the Internet has produced a secondary career for VT who  – copyright infringement litigator. The ability to search for and locate digital imagery through the Internet has opened up a cottage industry for VT where he sends out cease and desist letters with large demands against alleged infringers and on occasion he then files suit against them in his home state of Hawaii.  I have recently become involved in two such lawsuits filed in Hawaii against folks who allegedly used VT’s images on their websites. I will not discuss their individual cases here of course, but I will share what I have learned from my involvement in them.

copyright logoWhat VT Does Right 

Let me start by saying what I feel VT does right.

(1) He registers the images with the Copyright Office. He also does so in an organized fashion that makes it relatively easy to find the registration for the particular image. Copyright in an image attaches the minute the photographer snaps the picture and there is no legal requirement that you register the image in order to obtain the copyright in the image. Generally speaking, you took it, you got it. But registering the images allows VT to easily prove that he is the owner of the image and allows him to seek statutory damages and legal fees should he win a lawsuit over the use of the image.

(2) On his sites, he watermarks the images so that it is further easy to prove ownership and if someone removes the watermark (or content management information as it is legally known) that creates a second claim or cause of action against that person.

(3) He hired an experienced well-known lawyer in Hawaii – J. Stephen Street – to process his claims. His lawyer knows his way around a courthouse and knows copyright law. Too often, folks on both sides of an infringement suit don’t hire someone well-versed in copyright law or in litigation. They call the lawyer who set up their company or helped them incorporate or did their business lease. You need a lawyer who knows intellectual property law litigation in general and copyright law specifically. I have spoken and dealt with Street and he is professional and knowledgeable. While I don’t see eye-to-eye with him on a lot of things, our conversations have been courteous and productive. I can’t always say that about the lawyers that handle these digital image copyright infringement matters.

(4) VT takes beautiful and professional pictures of Hawaii.

 

What VT Does Wrong 

(a) Asking too much. VT’s demands both in his letters and through his litigation ask for damage amounts that I believe exceed what he would recover in a court of law. I have discussed this with Mr. Street and we have agreed to disagree on this issue. I recently represented a photographer whose business is similar to VT except his island of choice is Granada.  He found a travel agency that was using his images without license. He hired me to send a cease and desist letter. Luckily, the target company hired qualified IP counsel and we settled the case quickly for a fair amount. We didn’t try to scare anyone into overpaying for the images. Asking for a rational amount based upon the use made of the image and the guilt of the party (was it intentional, where did they get the image from, did they re-sell the image etc) is the best way to a quick resolution

(b) Suing in Hawaii. Without getting into too much legalese, before you can file suit in a certain State, you have to show that the defendant has sufficient “minimum contacts” with the State so as to allow them to be hauled into court in that State. In the two cases I am handling, I feel the connection to Hawaii is thin. Of course, Mr. Street would disagree with me. But to even argue that, they then have to get Hawaiian counsel and fight the case until they can convince a court that they are right. The time zone difference also adds to the difficulty in dealing with the case. This added expense and pressure is unfair if the party really has no ties to Hawaii. We’ll see if the court agrees with me or Street.

 

Added Note of Caution about “Free Wallpaper and Free Images” Sites:

If you do a reverse image search on Google for just about any VT image, you will find it on dozens and dozens of websites propounding to provide “free images” or “free wallpaper shots.” This is where many VT’s targets get their images from. People believe that when a site says something is “Free” its “Free.” But the site does not own the images and has no legal right to sell them. Incidentally, using an image from a free wallpaper site as a banner for your website which advertise  your business is not “wallpaper.” For a time, on ELI and in other places, there was speculation that VT was “seeding” his images onto these sites in order to entrap or ensnare folks into using them and to then make them targets of later suits.  Having been involved in this issue for some years now, I can state that no proof of any such seeding has ever been found. Street also demonstrated to me the many attempts VT has made over the years in trying to get “Free Wallpaper” and “Free Images” sites to take down VT’s work. It’s like playing “Whack-A-Mole” – you knock one down another pops up instantly.

 

What’s All This Mean? 

It means that if you intend to use an image of a Hawaiian beach, chances are its VTs unless you go old school. It means that you cannot assume that just because an image is labeled as “free” that you can use it without a problem.  It means that chances are if you want to use a picture of a Hawaiian beach you will have to pay for it now or later. Or else you could find yourself saying “Aloha” to a judge in the Federal Court for the District of Hawaii.

 

 

Oct 13 2014

UK Revenge Porn Law Could be Model for US Law

The United Kingdom could soon pass the world’s first national Revenge Porn bill. The legislation, which is currently going through Parliament, will cover any private sexual image of someone that is circulated, both on and offline, without their consent and designed to cause distress. The bill defines Revenge Porn as “Photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public”  If convicted, the person could face as much as two years in jail.

New technology always breeds new crimes and society must then work to find a balance between the legal and the illegal use of the technology. While several US states have passed criminal Revenge Porn statutes, most do not have any law on the books. Use of the phone and/or the Internet provides a basis for Federal jurisdiction in most RP cases here in the States. Passage of the UK bill should energize the conversation about a similar national law here in America. The main argument against RP laws is not that they are not needed or that the behavior isn’t wrong or should not be punsihed, it is that the law if not properly drafted could ensnare folks engaging in otherwise legal behavior – usually Constitutionally-protected activity.

Blind and occasionally fickle

To be sure, the US has stronger speech rights than Europe – witness how easy it is to be sued for libel and defamation across the pond for example. So like many statutes a disclaimer could be added that nothing in the bill shall be used to prosecute Constiutionally-protected speech. That would free newspapers and reporters from liability for sharing an RP image as part of a news story on RP.  The law could also be narrowed by focusing on the person’s intent – the dissemination of the image must be intentional and the images must be the kind of image that a reasonable person would expect to be private. I recently argued a case before the Georgia Supreme Court where an anti-stalking law was used to obtain a permanent order of protection against a web site owner who merely wrote about and criticized his target using some harsh language. The website owner also threatened to expose already-public information about the target and her family. At oral argument, the justices seemed to understand that speech must cross over to “true threats of physical harm”  before speech can be prohibited. The anti-stalking law need not be struck down but its application can easily be tailored to protect Free Speech.  We’ll see how the decision comes out in about 6 months but  I bring this up to point out that as is often the case, new laws do sometimes take a few cases to shake out the boundaries and find the appropriate and Constitutional way to  apply them.  As I have written before, the same thing happened when states began passing Rape Shield Laws, prohibiting newspapers and others from publishing the names of sexual assault victims and preventing those victms from being cross-examined about their prior sexual behavior.  Now all courts have set guidelines on what is restricted and what is allowable in that arena and a balance between the vicitm’s rights and the First Amendment has been found – the issue is rarely litigated anymore.

The same should happen in the RP arena.  With the news of a new leak of thousands of private images – this time from Snapchat third-party apps- and with cases of RP growing everyday, a national model is a good way to send the message that this behavior will not be tolerated; that the victim’s right to privacy does not end merely because they chose to share a private image with a person of their choosing; and that the law will rise to address society’s needs.

Sep 20 2014

Lawyer Photoshops Herself Into Celeb Photos For Her Website -Bye Bye License!

The latest celebrity photo scandal does not involve nudity just stupidity. Svitlana Sangary is a Los Angeles-based attorney whose solo practice focuses on business litigation according to her website. A client who had a dispute with her reproted her to the California State Bar for  allegedly photoshopping herself into over 50 pictures with A-list celebrities (like George Clooney, Kim Kardashian and Barbra Streisand), and high-ranking officials, (like Presidents Obama and Clinton). In several of the photos, Ms. Sangary used the exact same picture of herself.        I guess she was practicing that old adage “Fake it till you make it.”

She had no license to use the images and now she will likely have no license to practice law (at least for a little while). Her response to the complaint was a rambling 16-page stream of consciousness which did not help her cause. It also did not help her that at her disciplinary trial she refused to answer questions by asserting her “First Amendment rights”

Here is an excerpt from the “soliloquy.” (as California State Judge Donald Miles called it):

There is a popular expression, ‘sweet sixteen’. The foregoing 16
pages can be characterized as bitter-sweet sixteen, in SANGARY’s
view. It goes without saying as to why they are bitter. Can one
envision the acts in the civil arena, more unseemly than the ones
described above? But what SANGARY views as sweet is that this
country, the United States of America, is truly the land of
opportunity, where anything and everything is possible.
SVITLANA SANGARY came to this country in her twenties, with
nothing, and married another immigrant, who also had nothing.
SANGARY passed LSAT [sic] without taking the preparation
course, graduated cum laude from the Pepperdine University
School of Law, and passed the bar without even taking the Barbri
course. SANGARY’s American dream has come true, as she has
been able to achieve a point wherein now, in her thirties,

SANGARY is a prominent donor and philanthropist, supporting
important social causes, who had recently received the email from
President Obama, with the subject line ‘I need your help today’,
asking SVITLANA SANGARY for an additional donation

Judge Miles said Sangaray also attached 30 more exhibits, including an e-mail purporting to support her philanthropy and close connection with President Obama but which was merely  a campaign email asking that she chip in “$3 or more” to help the Democratic Party.

Sanagry unwisely kept the images on her website for more than two years while she fought the charges and even more unwisely dodged and missed court conferences. The page of photos has since been removed from her site, but the images were still visible in time for The Recorder magazine to snag a screenshot :

photoshopped celeb lawyer

The court recommended that Sangary be suspended for 6 months placed on probation for three years. That decision is awaiting approval from the state Supreme Court but it sems likely to be affirmed. Six months seems like a pretty mild suspension in light of the utter lack of judgment revealed in posting the pictures, keeping them up once the charges were made, fighting the court for two years, missing court conferences and not putting up any valid defense. I guess in LA this type of behavior is a little more common and understandable as half the people walking around LA are lying about their celebrity connections anyway.

 

 

Sep 16 2014

First Amendment Case is Crash Course in Rap for SCOTUS

Anthony Elonis is a Pennsylvania man convicted of issuing threats to his ex-wife, who had an order of protection against him.  All of the relevant threats were posted on Elonis’ Facebook page and most of them took the form of rap lyrics. He did not tag or link his ex-wife to the posts and he usually included funny emoticons or other indicators that he was not being serious. While the First Amendment to the Constitution broadly protects speech, it does not protect “true threats.”

So before addressing the case, it’s worth looking at the posts that got Mr. Elonis in Federal hot water.

He did a near word-for-word parody of the comedy troupe Whitest Kids In America’s skit where a member discussed  that while it was illegal to kill the President, it was not illegal to discuss that it was illegal to kill the President.           So Elonis posted:

Um, what’s interesting is that it’s very illegal to
say I really, really think someone out there should
kill my wife.
That’s illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
It’s an incomplete sentence but it may have nothing
to do with the sentence before that. So that’s
perfectly fine.
Perfectly legal.
I also found out that it’s incredibly illegal, extremely
illegal, to go on Facebook and say something
like the best place to fire a mortar launcher
at her house would be from the cornfield behind it
because of easy access to a getaway road and you’d
have a clear line of sight through the sun room.
Insanely illegal.

Even though this language tracks the language in the skit and the post included a link to the video of the original skit, the jury in Pennsylvania found that it constituted transmission of a threat to injure or kill someone, in violation of Federal law. It also found that this original rap lyric was another threat:

Fold up your PFA [ order of protection] and put in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
And prison time will add zeros to my
settlement
Which you won’t see a lick
Because you suck dog dick in front of children
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s
department

One other rap lyric that led to a Federal indictment and  conviction went as follows:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

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
The only question is . . . which one?

He was also convicted for another rap lyric which he included in a Facebook note and detailed a visit at his home by a female FBI agent in which he intimated that he had a bomb strapped to him at the time of the interview:

You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch
ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner
[laughter]
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all
Goin’
[BOOM]

In the Third Circuit (the Federal Appeals Court that covers Pennsylvania) courts have held that what the “threatener” intended by the communications or writings does not matter; what matters is whether a reasonable person would view them as a “true threat.” Other Federal Circuits have held that there must be some evidence that the “threatener” intended to issue a “true threat.” Due to this division in Federal Circuits, the Supreme Court of the United States must decide. The question presented is:

Whether a conviction of threatening another person requires proof of the defendant’s subjective intent to threaten; or whether  it is enough to show that a “reasonable person” would regard the statement as threatening.

Seems straightforward enough, but the answer will have far-reaching consequences for the way we communicate today.  One of the things that Elonis’ legal teams’ excellent brief does is take the time ( and precious pages) to explain to SCOTUS that throughout modern musical history, starting with the blues, “first-person revenge fantasies are such a prevalent theme . . .as to be cliche.” Elonis brief at page 53 [The Brief is available for viewing at the ABA's site www.supremecourtpreview.org]. It goes on to quote from various blues songs and then rock and even country songs whose theme is killing a current or former spouse. But perhaps its greatest understatement is “But arguably, they have reached their apotheosis in rap music, which has pushed the boundaries of hyperbole.” The brief then cites significant parts of some of Eminem’s songs about his mother and his wife Kim, who have both been the subjects of violent revenge songs. The brief argues that allowing these types of lyrics to constitute “true threats” merely because  the subject of the song reasonably believes them to be true threats would stifle artistic expression and creativity and be an insupportable prior restraint on speech. Rather, the lawyers argue, SCOTUS should align itself with the Circuits that have held that the prosecution must offer some proof that the defendant actually wanted to threaten the alleged target.

bill-of-rights.jpgEducating SCOTUS on rap – while presenting a funny picture-  is vitally important to the success of the brief. I am not going out on  limb to state that chances are the vast majority of the Supremes could not recite the lyrics of The Supremes much less Eminem or Public Enemy or Nicki MInaj; as a rule I see that they tend to go for opera (which is actually pretty violent in its own way).  They need to understand the current culture and climate to become aware that followers of rap know that these songs are just bragging and entertainment. It’s part of the overall genre of rap and hip-hop. That is why an amicus curiae (“friend of the court” brief)  filed by the University of Florida’s Marion Brechner First Amendment  Project is extremely important. The brief (also available at www.supremecourtpreview.org) takes the Court through a history of rap. (Editor’s Note: I was grateful to see that it correctly traced its origins to the South Bronx). The writers eloquently explain that part of the genre’s popularity

resides squarely within a long tradition of African American storytelling and verbal
competition, one that privileges exaggeration,metaphor, and, above all, wordplay. Underlying this
tradition is the practice of signifying, or the obscuring of apparent meaning; in the process of signifying,
ambiguity is prized, meaning is destabilized, and gaps between the literal and the figurative are intentionally
exploited. This practice, along with rap’s dense slang and penchant for imbuing words with new meaning(s),
makes it especially susceptible to misreading and misinterpretation

Elonis Amicus Brief -Brechner at page 11. [Editor's note: that passage is itself poetry]. The brief’s authors also take great pains to point out that rap artists and even rap aficionados are viewed with distrust and contempt by “police, politicians, religious leaders, and civic groups who maintain [rap] is particularly threatening to American society.” They continue by alerting the Court that much of this ill-will is merely the latest version and manifestation of prejudice and dislike of minorities in general  and of young people of color in particular.  So they stress that there must be subjective proof of the writer’s intent or else “such biases and prejudices may subtly cause jurors and jurists to erroneously find true threats where none exist.” That is a great and compelling argument for ruling that courts cannot merely rely on the reasonable person standard – because the reasonable person is likely to not understand rap and may very well be biased against rap and against those who like it or produce it.

I am following this case closely not just because of its implications to rap artists but because of its implications to free speech everywhere.  The case’s potential for far reach is best exemplified by another amicus brief field jointly by PETA and Pro-Life Groups (and they say politics makes strange bedfellows). This brief is focused on the implications of using the reasonable person standard against loud and occasionally obnoxious protesters. Those who don’t like the messages are more likely to find that the shoutings and rantings are “true threats.”   I am also following the case because in early October I will be going to the Georgia Supreme Court to argue that the First Amendment prohibits the issuing of a protective order against a blogger who merely posted on the Internet about his alleged “target.” The trial court in Georgia ordered the blogger to remove not only the allegedly offending posts but all posts he had written about his subject. So part of our brief -and the excellent amicus curiae brief filed by Constitutional scholar Eugene Volokh of UCLA on behalf of the Electronic Frontier Foundation and others – takes time and precious pages to make the court aware of the raucous and rowdy language of the Internet and in particular Internet discussion groups.

Modern communication is constantly evolving and courts must keep evolving with it. Any lawyer worth his salt knows that you must give the person deciding your client’s fate – be it judge, jury or appellate court – the proper context and history to understand the situation. Without requiring that there must be some evidence of an actual intent to threaten, opens up society to a flood of claims and cases being brought by folks that just have not adapted to the 21st Century. It would provide a serious prior restraint on artistic expression and personal freedom. Hopefully SCOTUS will take its hip-hop lesson to heart and reverse Mr. Elonis’ convictions.

 

 

 

 

Sep 07 2014

Cannibal Cop Juror Speaks Out About Overturned Conviction

I was contacted by a juror from the notorious Cannibal Cop case who wanted to break the jury’s silence following the stunning reversal of their guilty verdict by the judge presiding on the case. Since the person wants continue to remain anonymous for as long as possible, I’ll call them Juror X (“JX”).  What JX revealed about the experience of sitting on the Cannibal Cop case has great value for trial lawyers and sets an interesting example of the often conflicting roles of fact, law, judge and jury.

First a quick recap of the case: Gilberto Valle was a newlywed with a young daughter and six years serving in the NYPD when his wife, Kathleen Mangan, found disturbing photos on their shared computer and shocking chats from the website DarkFetishNet.com. The photos and chats related to ways to stalk, kill and then eat women. Hence the term “Cannibal Cop.” The wife had found similar images and posts before but this time she also saw her own name on  a list of “potential vicitms.” That led her to call police and led to Valle’s arrest. The arrest of course caused a sensational splash in the media. It allowed various tabloids and news outlets to explore the “Dark Web” or “Deep Web” that lies beneath the surface of the world wide web we all surf on a daily basis. Sites there cannot be indexed by standard search engines.  So the case was looked at from all angles by a variety of folks.  There was just one problem – what evidence was there that Valle actually planned to act on the posts he made about these women? How could law enforcement and eventually a jury in a court of law distinguish between mere fantasy and actual criminality?

The trial: The FBI were pressed by the NYPD to close the case quickly and arrest Valle, and so they did. They “made a federal case” out of it because Valle allegedly took his wife and child across State lines to Maryland to visit an old college friend. That college friend was also on Valle’s “Wish List.” The Feds charged Valle with misuse of the federal National Crime Information Center (NCIC) database which he accessed to get personal info about women on his list and with Conspiracy to Commit Kidnapping.

After  a day of jury selection, JX was chosen. Federal jury selection is very different from State jury selection in that the judge does all the questioning and the lawyers do not get to interact with the prospective jury panel. JX felt that the judge did a fair and thorough job of going through their particulars and eliminating folks who might have bias – but then again JX had never served on jury before so JX had no idea what State jury selection entailed or how lawyers approach jury selection as an opportunity to plant seeds in the minds of jurors and test who may have “ready ears” for their theory of the case. The jury selected was nearly equally split between men and women; was racially and economically diverse; and included a corporate lawyer on the panel.           

Judge Paul Gardephe Image Courteys of St.Francis College

Judge Paul Gardephe
Image Courtesy of St.Francis College www.sfc.edu

The government’s case consisted of  Valle’s wife (who JX reported the jury felt was overly-rehearsed and not  genuine despite repeatedly breaking down on the stand); a few of Valle’s “Wish List” women including the college friend  he went to see with his family; and then a string of FBI agents and techs who painstakingly went through Valle’s posts and chats with other members of DarkFetishNet.com from London, New Jersey, and India. JX told me that even though many of the posts were graphic and involved details of violence and sexual abuse, the AUSA’s soft spoken style and the repetitive nature of the testimony made this the sleepiest part of the trial.  Note to trial lawyers: Find a way to make repetitive testimony interesting  to jurors – use slides, posters, or other jury devices; change your tone, your inflection; find a way to summarize or condense it;  and occasionally check on the jury to see if they are losing interest or dozing off. JX noted that until summation none of the lawyers made any eye contact with jurors as they were presenting or challenging the evidence. The defense case consisted of the owner of DarkFetishNet.com (a Lithuanian native) trying to explain his site and how it is a “fantasy fetish” site. Part of the reason this witness failed to pack any punch was that by the end of the trial, the jury had gotten to not really like the older male defense lawyer who apparently was handling this witness; they viewed his style as belligerent  and annoying. JX said Julia Gatto – Valle’s lead attorney- was “competent and organized” but lacked any real emotion or connection with the jury. JX stated that it took a great deal of effort not to impugn the negative aspects of the defense lawyering on the defendant. JX always “thought trial lawyers were supposed to try and connect with the jury.” I replied that indeed that should be a main goal of any trial lawyer. JX said that none of the four main lawyers in the case made any such connection with the panel.

One of the most surprising things that JX told me was that it was not until the lead AUSA summed up for the government that JX (or any other juror as JX learned during deliberations)  had any idea where the various pieces of evidence fit into the case. JX said the opening statement did not provide a road map or even a discussion of the various elements that were to be proven. Several times during summation JX thought “Aha – so that’s why that was put into evidence.”  Seems like a rookie mistake from the gov’t side not  to take the opportunity in opening to explain the theory of the case and what evidence would be presented to establish that theory.

The charge: The court thankfully gave a written copy of the charge to the jury because it was long and convoluted according to JX.  Nevertheless they asked to have portions of it read back  a few times before they settled into true deliberations. More and more judges are giving jurors copies of the written instructions to take into the courtroom with them. JX was surprised to learn that it was not done in every case and said it was hard to imagine the jury wrestling with all that legal language without a written copy before them. JX said that the jury relied heavily on the lawyer-juror’s interpretation and helpful  explanations of the terms. While the lawyer had no criminal or trial experience, the jury still did turn to him to break down the elements of the charge into regular language. Something to think about for trial lawyers considering leaving a lawyer on their jury. While JX emphatically stated that the lawyer did not put in his own thoughts about what the law should be or even was, its not hard to imagine a lawyer-juror who might not be as proper and who might try and spin the charge a certain way to get a certain result

The deliberations and verdict: Once they felt comfortable with the charge and elements, the jury got down to the hard work of determining the defendant’s guilt. JX said the jury was a cohesive, tight knit bunch. They spent alot of time together during the 8-9 days of trial because of the “numerous and annoying” sidebars that repeatedly interrupted the trial. During those breaks, which sometimes lasted hours, some jurors read, others chatted, but JX and many others soon formed a Texas Hold’Em poker game, with chips and everything! While real money did not change hands, the game was serious and provided a huge distraction from the mundane task of sitting and waiting. The lawyer in those sessions also helped to remind the jury not to discuss the case. JX also mentioned that  the lawyer helped them stay  true to their oath when they were tempted to speculate on what evidence was kept out and why or what a sidebar was  about. The lawyer kept reminding the panel to just focus on the eivdence as promised.

The jury put up easels with large white sheets of paper on one side of the room on which were written the various elements of each charge. On the other side they put up easels with the facts of the case that applied to the elements. The jury quickly agreed upon a conviction for the misused database count of the indictment as there really was not dispute that Valle used the NCIC to further either his fantsy or his conspiracy. – either were improper uses. JX said that the defense did not help themselves by trying to explain this away; it would have likely been better for the defense to concede that count and focus on the conspiracy count.

In deliberating on conspiracy, the jury grappled over one element – “the overt act.” In order for a conspiracy to move from a mere thought to a criminal plan of action, there must be at least one overt act done in furtherance of the conspiracy. Criminal defense practitioners know that the Feds love to charge conspiracy. The planning of  a crime is often easier to prove than the commission of a crime and its an easy way to grab anyone else who helped the target defendant along the way and then turn them into a witness for the prosecution.

Here the jury was trying to determine if the defendant stepped beyond fantasy to a real plan of action he intended to execute.  They spent most of their 4 plus days of deliberations on  this assessment. They taped up a timeline on the wall which included many of the defendant’s conversations from the chat room. Not content to just read them to themselves, they decided to “role play” the conversations by reading aloud the posts and having one juror take one side of the conversation and another juror take the other side. This helped bring the conversations to life and helped them try to figure out the “intent” of each speaker. The “turning point,” as decribed by JX, was when they realized that as soon as Valle got home from his jaunt to Maryland, the first thing he did was go on the web and tell his chat room buddies that he had successfully  cased his first place of attack. That he had staked out his first victim’s home and office and had formulated how he would do the deed was the overt act necessary to meet the definition in the jury’s mind.  If it was just fantasy, the jury believed, he would not have immediately rushed to report the results of his trip. That, coupled with Valle’s use of real names and real pictures of his “wish list” victims, turned this from a “thought crime” to a real crime. The jury came out and reported its vedict -Guilty on both counts.

Aftermath:  The jury did not want to speak with media afterwards, but they kept in touch with each other. They read all the newspaper accounts of the case which were kept from them during their time on the trial. They understood that the case was gray area of law and in fact a dangerous one, as they were also aware that in the US we do not punish mere thought crimes. But they all felt secure that they had given the defendant every benefit of the doubt, hd presumed him innocent but were in the end sufficiently convinced by the evidence that he crossed the line into a true crime and that he would have acted on it but for his arrest.

Judge’s Ruling:  The jurors were all aghast when one year and four months after their verdict, Judge Paul Gardephe ruled that there was insufficient evidence to try Valle on the Conspiracy count.  While he issued a 118 page decision, the only part that really mattered was this statement:

“The evidentiary record is such that it is more likely than not the case that all of Valle’s Internet communications about the kidnapping are fantasy role-play.  No real-world, non-Internet based steps were ever taken to kidnap anyone.” 

The decision shocked the jury panel and JX calls the ruling “abominable.” JX said that the jury believed it was their province to determine if the facts met the law and that they felt very strongly that Valle’s trip  to Maryland to “case the joint” so to speak was an overt real-world step taken to kidnap a real victim. Valle identified her  as a potential target; organized a trip to go check out her place of residence and work; and then immediately reported his results to his cohorts on the cannibalism website. JX still feels that the jury got it right and is 100% confident that the jury followed the rules and made their determination based soley on the evidence.

Conclusion:  While JX said the judge’s ruling left JX with a bitter taste in the mouth, JX relished the jury experience; one JX had long dreaded. JX said that working with a cohesive group on such an important issue – a person’s freedom –  was strenuous, challenging and rewarding. It is unusual for the trial judge to wait this long to reverse a conviction but then again, Valle was still convicted of one count and therefore would likely have served this amount of time anyway. But the court had the power at the end of the government’s case or at the end of all the evidence to dismiss the conspiracy count if he believed that as a matter of law there was insufficient evidence to sustain it. It certainly must be extraordinarily frustrating for the jurors, having sat through a long and difficult trial, to have their verdict overturned.

Trial lawyers can learn alot from the many points JX raised in the conversation with me.  The importance of making a connection with jurors; of having a roadmap to explain your proof; of recognizing that it is hard for jurors not to impugn your personality onto your client, etc etc.The case is up on appeal and the Second Circuit will have to decide if Judge Gardephe did the right thng under the law or overstepped his bounds. In the meanwhile two others who chatted with Valle in DarkFetishNet.com – Michael Van Hise and Christopher Asch – were convicted of Conspiracy  to Commit Kidnapping. Their lawyers are waiting for Judge Gardephe to rule on their dismissal motions as well.

 

 

 

 

 

 

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