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July 18, 2008

Party night tip: Be sentencing safe when you surf and post

Facebook_pic This new CBS/AP story, headlined "Drinking, Driving And Facebook Don't Mix: Web Networking Photos Come Back To Bite Defendants," provides another twist on our modern brave new world of sentencing technologies.  Here are snippets from a story that provides a pre-party-night cautionary tale:

Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner.  Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled "Jail Bird." In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook.

And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton's drunken-driving case.  Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison....

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants.  Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment....

Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name.  But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.

July 18, 2008 at 04:18 PM | Permalink

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Comments

That's a great story. Two years, at least, sounds about right for this scumbag.

Posted by: eat it, jailbird | Jul 18, 2008 4:30:34 PM

Talk about acquitted conduct. He wasn't even charged with wearing a "depraved" Halloween costume!

Posted by: | Jul 18, 2008 7:31:04 PM

What I find interesting about this case is the generation gap. Being middle-aged, I am much more comfortable with the Internet than my parents were. My mother has never even been on-line. But I didn't grow up with the Internet like the generation behind me has. I never have been on Facebook or MySpace; they just seem odd to me. But young people accept technology in an almost unconscious way that I don't really grasp; it's like breathing air to them.

The prosecutor's decision strikes me a little bit like shooting fish in a barrel. There is almost something unfair about it.

Posted by: Daniel | Jul 18, 2008 9:00:19 PM

Great post! I hope that others in a similar situation will learn from this and exercise some common sense.

Posted by: Rickey | Jul 18, 2008 9:41:53 PM

Rickey, we have to learn to love Big Brother.

Posted by: George | Jul 18, 2008 11:36:05 PM

Daniel,

As a millenial, I must say that we do not all unconsciously accept social networking sites. I was very wary of them, and refused for years to join facebook despite insistence from friends. When I quit a college job, I tried to get phone numbers from my coworkers before leaving. They didn't want to waste the time to tell me their phone number and let me enter it into my cell. I ended up joining. It is very useful in terms of organizing events and inviting friends, and it is a nice way to keep a minimal level of contact with people without much effort. However, the prospect of having ridiculous amounts of information about me publicly available makes me pause for caution. I don't like forking over my life history to every website I buy from. I keep my facebook fairly polite and innocent. I carefully manage the privacy settings on it. I'm always surprised when stories like this surface. Why not take the time to protect your online image?

Posted by: D | Jul 18, 2008 11:44:09 PM

Maybe he should of thought about what he was doing before he did it. Doesnt seem right that he should get a DUI , victim is in the hospital and he is partying it up, He deserved the two year sentence, should of had better judgement and he wouldnt of got but a slap on the wrist.

Posted by: alex53102 | Jul 19, 2008 2:21:41 AM

To: Eat it, Jailbird. Like you, I derived joy from watching the lower classes and non-lawyers go to jail. Their misery is my joy. After all, if their hated American less they would be in law school and not doing silly things like drinking and driving or using facebook.

That said, it is unclear as to what the point of a harsher sentence for a Halloween costume is. The costume, it would seem wasn’t mocking the victim (and if it was, so what?) or even the very laws which this non-lawyer POS violated. Strangely, even non-lawyers are entitled to some constitutional protection for their ideas, even if they are virtually incapable of expressing them in ways other than costumes and sit-coms.

So, perhaps you can explain why taxes should be higher. Is it to discourage the use of non-lawyers of the internet? Or do you have some other reason raise my taxes.

Posted by: S.cotus | Jul 19, 2008 9:35:08 AM

After reading this post, I noticed a somewhat similar case out of Waco, TX and posted this item on Grits reacting to both cases, for anyone interested.

In that case, pictures of a smiling 18-year old defendant "mugging for the camera" three months after a deadly accident was portrayed in court as demonstrating remorselessness, along with a smiley icon on her Facebook page and a description of her mood there at one point as "breezy."

The cases make me wonder exactly how long one must wait after a tragic accident before one can safely have a photograph taken depicting a smiling visage? Longer than three months, apparently.

Posted by: Gritsforbreakfast | Jul 19, 2008 10:46:59 AM

Indeed, it is very important for people that smile to keep it a secret. From now on lawyers should advise their clients to FAKE SADNESS and post it on youtube. This way, people that deserve longer sentences will get shorter or no sentences.

Posted by: S.cotus | Jul 19, 2008 12:54:10 PM

George:

"[W]e have to learn to love Big Brother."

Why is it a case of "Big Brother" when a government employee looks on a website that everybody else in the world can look at?

Why is it nefarious to look at that which is debiberately put on public display?

Posted by: Bill Otis | Jul 19, 2008 1:02:11 PM

Gritsforbreakfast:

Whether the defendant's ever-tearful performance in front of the jury or her what-me-worry smile for her Facebook pals more accuately portrays her real attitude is a question her counsel can argue, and the jury can determine.

Jurors are not monsters. They know that sincere people can have moments of happiness even in the midst of misery. But they are also not dopes, and know that defendants have a strong incentive to fake remorse.

Posted by: Bill Otis | Jul 19, 2008 1:15:48 PM

Bill, You are in the minority. It turns out that jurors *are* dopes. Most prosecutors and defense attorneys agree (except when they vote the way they are supposed to).

Posted by: S.cotus | Jul 19, 2008 2:20:30 PM

S.cotus:

"Bill, You are in the minority. It turns out that jurors 'are' dopes. Most prosecutors and defense attorneys agree (except when they vote the way they are supposed to)."

If I were in the minority, it wouldn't bother me. I've spent time in the minority and in the majority, as have most people.

In fact, I very much doubt I'm in the minority on this. I have read that lawyers regard the jury as the saving grace of the system. I do not remember where I saw this, so I can't give you a citation. Perhaps other commenters know, or have thoughts.

Posted by: Bill Otis | Jul 19, 2008 2:33:27 PM

Oh well, yes, I do agree that juries are the saving grace of the system. Not because they are particularly smart, but simply because they take power away from people like you that think that the executive should be able to take people they don't like them and lock them up forever without having to even explain their reasoning on the record to people that were not smart enough to put “Federalist Society” on their resume so as to get hired via DOJ honors.

But they still are dopes.*

*This does not apply to the juries in the trials in which I was counsel which sided with my client.

Posted by: S.cotus | Jul 19, 2008 2:48:01 PM

Beware of the pool, blue bottomless pool

Posted by: federalist | Jul 19, 2008 4:03:38 PM

Mr. Otis, there is a great difference between looking at a website and the interpretation of that website. You also claim the jury interpreted that picture, not the judge or prosecutor. Did it?

The picture is a snapshot of an instant and cannot conclude what the defendant's overall degree of remorse is. Would you argue that if a murder victim's family ever smiled or went to a Halloween party there was no harm done in the murder?

Speaking of snapshots and Big Brother, let's take look at our own future though China's All-Seeing Eye .

Posted by: George | Jul 19, 2008 4:26:00 PM

I guess the lawyers who see the jury as the saving grace of the system are prosecutors as a jury trial virtually guarantees a guilty verdict. (various statistics - 96% - 98%)

Posted by: beth curtis | Jul 19, 2008 5:39:11 PM

Beth,

I think you are oversimplifying the issue. First of all, the 95% figure does not hold in all jurisdictions. In fact, in the jurisdictions I am familiar with the number is about 80%. In some it is even less. But in those jurisdictions, I attribute this to a failure of the prosecutor to actually think about what she is doing.

But that isn't the issue.

First of all, a prosecutor should NEVER move forward with a case unless they have a good faith belief that they can win before a jury. In fact, I would probably say that most of the time prosecutors work on this assumption. Because jury pools are picked with some degree of randomness, even the most devious of jury-selecting prosecutors must think seriously about whether each possible jury will convict.

Second, the existence of juries changes the nature of events that occur in the shadow of jury trials (namely plea bargains). The parties to a criminal proceeding will negotiate on the basis of the kinds of witnesses that might play well before a jury.

Third, in jurisdictions where there is a real choice between a judge and jury trial (in the federal system the government must agree to a bench trial), the option of a jury trial again plays into the calculus the the defense and prosecution think about when deciding how to resolve a case. As a practical matter, in some places, some judges are more likely to acquit on some crimes. But, also certain arguments play better before juries. This is what lawyers who practice in this area spend their time getting a “feel” for.

Fourth, the jury trial option brings the public into the criminal justice system. Without a collective American experience of serving on a jury the public would have to take the sayings of Bill Otis on their face. His basic view of life is that there are lots of criminals out there and the police (that is, the executive) can do little wrong unless he fundamentally disagrees with the substantive law based on his partisan political beliefs. The fact that most Americans will, at some time, have some connection to a jury trial means that Americans will be forced to think about the issues that impact criminal justice. They will have to listen to cop-babble. They will have to listen to experts, and everything else in the trial. Then, they will be put into a room where they will be forced to debate the issues – not in a vague TV-show-esque sort of way, but actually analyze specific testimony evidence.

Now, of course, in many jurisdictions there are not that many jury trials. But that doesn't mean that the system is a failure. It just means that it functions as a stop-gap that changes the dynamics of criminal justice in the US.

Posted by: S.cotus | Jul 19, 2008 6:19:50 PM

S.cotus , so you have a guess on the jury conviction rate if every case went to jury trial (no plea bargains)? Would it be about the same? Or would it be a lot less because the prosecution could not drop the charges to an offer the defendant cannot refuse?

Posted by: George | Jul 19, 2008 6:29:56 PM

beth curtis:

"I guess the lawyers who see the jury as the saving grace of the system are prosecutors as a jury trial virtually guarantees a guilty verdict. (various statistics - 96% - 98%)."

On the other hand, a plea bargain CERTAINLY guarantees a guilty verdict.

If we are are not to resolve cases by either plea bargains or trials, I confess I'm at a loss to think of what WILL resolve them.

P.S. The reason the great majority of defendants who go to trial are found guilty is that they ARE guilty, and the evidence shows it.

Posted by: Bill Otis | Jul 19, 2008 6:35:28 PM

George:

"Mr. Otis, there is a great difference between looking at a website and the interpretation of that website."

But in the post of yours to which I was responding, it certainly seemed to be the government's mere LOOKING at the website that prompted your warning of an encroaching Big Brother. Are you now stepping back from that?

"You also claim the jury interpreted that picture, not the judge or prosecutor. Did it?"

The excerpt of the article implies that it did, but I don't know for sure.

"The picture is a snapshot of an instant and cannot conclude what the defendant's overall degree of remorse is."

Exactly that argument is available to the defense lawyer. That a photograph is subject to different interpretations does not differentiate it from almost any other item of evidence.

"Would you argue that if a murder victim's family ever smiled or went to a Halloween party there was no harm done in the murder?"

I wouldn't put the murder victim's family on trial. What are they accused of?

Posted by: Bill Otis | Jul 19, 2008 6:45:08 PM

S.cotus:

"Oh well, yes, I do agree that juries are the saving grace of the system. Not because they are particularly smart, but simply because they take power away from people like you that think that the executive should be able to take people they don't like them and lock them up forever without having to even explain their reasoning on the record..."

Where is the post in which I state or imply that I think the executive "should be able to take people they don't like [away] and lock them up forever without having to even explain their reasoning"?

I'll wait while you either document that claim with a quotation from me, or retract it. I have a strong feeling, however, that you're not honest enough to do either.

You are welcome to prove me wrong.

"...to people that were not smart enough to put 'Federalist Society' on their resume so as to get hired via DOJ honors."

If you can name a single DOJ honors hiree, Federalist Society member or not, who didn't qualify for the job based on merit, I'll be waiting for that, too.

And that person's name is........?

Posted by: Bill Otis | Jul 19, 2008 6:58:03 PM

The story seems to indicate that this photo was not shown to a jury. It probably would be irrelevant to any determination of guilt, anyway.

Bill, There is no possible way that you could ever know whether someone is objectively guilty or not, beyond a reference to a legal standard and a legal process. To claim that the “evidence” shows that people found guilt “are” guilty is a truism. Not that there is anything wrong with it.

Trials are not about “truth” or any silly thing like that. They a process that ensures that the government must convince certain people of the likelihood of certain things. If they do that, then someone is “guilty.” It may well be that all the witnesses lied (as cops tend to do) or that the jury really hates the defendant, but even even so someone that is convicted is “guilty.” By the same token if the prosecutor does a bad job, then someone is “not” guilty. This doesn't mean that they “didn't do it.” It just means that there was a failure of proof. I really can't believe that a lawyer would fall for such an oversimplification. But, if it will make you feel any better, I will declare that “100% of all people found guilty are guilty.” Likewise, one dollar is one dollar. Water is wet. Every point on earth is south of the north pole.

As to people that are pardoned the issue a is bit more difficult. But, I doubt you want to go into that level of depth.

George, I don't know. However, I think that as a constitutional matter prosecutors should never be forced to take a position that they do not agree with. (Pleas don't necessarily guarantee guilty verdicts – they must be approved by the judge. In some cases they are not.)

Posted by: S.cotus | Jul 19, 2008 6:59:41 PM

Mr. Otis, Perhaps I am mistaken. Was the administration's position that they could detain Jose Padilla as an enemy combatant without judicial review was incorrect as a matter of law? Was the administration's former position that people detained outside the country were entitled to no review (outside of the executive branch) incorrect as a matter of law? If the answer to both these questions is yes (i.e. the administration was wrong), then I take it back. Otherwise, you are just someone that thinks that the government can detain people for any reason for any length of time without being subject to scrutiny from jurors.

“Merit” is a fairly subjective term in the legal sense. While you constantly brag about your experience representing the government before the Fourth Circuit, someone could claim that this is hardly much of an accomplishment, since the Fourth Circuit is rather biased in favor of the government and rarely exercises its independent judgment in controversial issues and the government's has the ability to cherry-pick its cases on appeal. (Not that there is anything wrong with this.) But, I am sure that many people think that you are the cat's meow, and you have many plaques stating that you are a great lawyer.

In the private sector, people don't become partners based on their ability to reason or bluebook. They do it by virtue of the business that they bring in. Again, not that there is anything wrong with this. Clients have all sorts of reasons for retaining one firm. Is it about “merit” -- I don't know. Most clients just want their legal problems to go away with a minimum of hardship. Is this “merit” -- I don't know.

But, to get to your specific questions, DOJ Honors has gone though changes (good and bad) in the past few years. Obviously I can't name specific people who were dinged because of their credentials (well, actually I can name four, but I won't). Whatever the case, the IJ found that DOJ was “deselecting” people on the basis of membership in ACS. http://online.wsj.com/public/resources/documents/dojsummerlaw20080624.pdf . If you want to disagree with the DOJ's inspector general, go ahead.


Posted by: S.cotus | Jul 19, 2008 7:10:57 PM

S.cotus:

1. Since you didn't answer, I'll ask again: Where is the post in which I state or imply that I think the executive "should be able to take people they don't like [away] and lock them up forever without having to even explain their reasoning"?

You explicitly attributed this position to me -- not the administration, not George Bush, not Don Rumsfeld -- me. So I want you to produce the post where I took it.

Let's see it.

2. Since you didn't answer, I'll ask again: Can you name a single DOJ Honors hiree, Federalist Society member or not, who didn't qualify for the job based on merit?

Note that I did not ask, and am not asking now, for the name of anyone who got "dinged." I'm asking you to name just one Honors hiree who got the job allegedly because of politics but was unqualified for it based on merit.

Who would that be?

And if you can't name one, which you can't and won't, why disparage hirees who were qualified on merit?

Posted by: Bill Otis | Jul 19, 2008 8:01:49 PM

Mr. Otis, That is the point: when some people are qualifying (or not qualifying) on the basis of political affiliation, it is impossible to even guess who qualified not on merit, but on political affiliation. The way it stands now at least two classes of DOJ honors were selected not on the basis of who was “best” qualified, but who was NOT of a political ideology (or had such indicia) that Monica Goodling and her ilk disagreed with. But, now that we are on the topic, I guess you could say that ANYONE that went to Regent and was hired under the honors program simply did not qualify on merit.

In fact, this is sad. It has actually degraded DOJ Honors as a resume-builder. At least two classes are tainted with Goodling-gate now. Everyone knows this. Smart and hard-working people have been victimized by this.

Okay, so I guess you are not endorsing the administration's positions, and we agree that jury trials are a not only a fundamental right of all Americans (even bad ones) and required of all people captured (I won't say detained) within the territorial limits of the United States. Further, judicial review is available to all people captured anywhere in the world regardless of location or status of their detention.

Good thing we got that cleared up.

Anyway, on June 5th you said “These 9-11 butchers earned it and now, unless we lose our nerve, they're going to get it. A worthier bunch would be hard to imagine.” This would seem to indicate that we should kill people that the executive decides should be killed, and any decision not to kill them isn't a matter of law or the constitution, but “nerve.”

Posted by: S.cotus | Jul 19, 2008 8:40:43 PM

Mr Otis: "But in the post of yours to which I was responding, it certainly seemed to be the government's mere LOOKING at the website that prompted your warning of an encroaching Big Brother. Are you now stepping back from that?"

You interpreted that like the judge interpreted the picture.

ADA: Your Honer. I viewed the picture on the website.

Court: And?

ADA: And nothing. I viewed it. That's all.

Please.

"I wouldn't put the murder victim's family on trial. What are they accused of?"

It goes to the consistency of your argument but you aren't dumb and know that.

But again we can't see the big picture forest for the snapshot trees: China's All-Seeing Eye. What do you think of that?

Posted by: George | Jul 19, 2008 9:35:23 PM

S.cotus:

1. I asked you to name a single Honors hiree who was not qualified on merit. You haven't and now you admit you can't.

Glad we got that cleared up, to coin a phrase.

2. The June 5 quotation of mine you produce is, as you know, a far cry from the position you attributed to me today.

The quotation does, however state my position on a related matter, which I will reiterate: The enemy in wartime is not a defendant in a domestic criminal case. What you do with wartime enemies is kill them. We have done a considerable amount of this in Afghanistan, thank goodness.

You may think we are not in a war. Our enemies harbor no such fantasy. When we confronted the Axis in WWII, no sane person thought that what you did with enemy soldiers in the middle of the fight was indict them. The fact that the enemy has made our own soil the battlefield, intentionally targets civilians, and fights with stealth and terror makes them worse, not better, and not more legally entitled, that the enemy we faced 65 years ago.

If you want to run interference for this crowd, that's your choice. I will not be joining you.

Posted by: Bill Otis | Jul 19, 2008 10:57:39 PM

Where else can you have a conversation that starts with a douchebag on Facebook and end 25 comments later with a discussion of the war on terror and the DOJ honors program. I LOVE AMERICA!

Posted by: Alan O | Jul 19, 2008 11:56:43 PM

Oh, now I see your position. While you support the right to jury trials and judicial review in theory, you get you back away from that position by saying “we are at war.” Then, having decided that we are at “war” your get to say that the executive can do whatever it wants including detaining anyone it feels like with no judicial review and no jury trials. This way, you can pretend to be an American and support our country’s values, but when it becomes inconvenient (based on your own criteria), you can take an totalitarian position simply by saying that there is a “war.” No need to even change the constitution.

I sort of like this logic. I guess in theory, I believe in paying my legally valid debts. Except, of course when I don’t feel like it. Then, I don’t need to. I am going to tell this to Mastercard next month.

Posted by: S.cotus | Jul 20, 2008 8:14:19 AM

That is great and want to see more,oops
______________________________________________
Allen

Posted by: Allen | Jul 21, 2008 4:29:08 AM

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