MAKING A TERRORIST THREAT OR STUPID FACEBOOK STATUS?

A Queens man, Remel Newson, was arraigned on Friday, July 19 in Queens County after being arrested for Making a Terrorist Threat in violation of New York State Penal Code 490.20.  Making a Terrorist Threat is a D violent felony offense in New York, which means that if convicted of this charge, Mr. Newson faces a mandatory minimum of 2 years in prison and a maximum of 7 years in prison.

There is little publicly available information about the case just yet, but it is a fascinating scenario, especially in light of the recent media attention given to the Government’s interest in collecting information about American citizens.

Mr. Newson allegedly used the hashtag “killallwhites” in the context of a post to his Facebook status expressing outrage at the verdict in the George Zimmerman trial in Florida.  According to the NPR article cited above, Mr. Newson also allegedly posted the words “let’s kill cops nd neighborhood watcher”.

The lawyer who represented Mr. Newson at the arraignment is quoted in the NPR article in a way that suggests that the lawyer conceded that Mr. Newson himself posted the words on his Facebook page.  Perhaps Mr. Newson had already conceded as much to the police during the arrest to arraignment processing and questioning.  The lawyer did suggest, according to the NPR article, that Mr. Newson simply copied the words from somewhere else and pasted them into his status, adding that he essentially meant no harm.

Inevitably, this set of facts is going to ignite a debate about the level of offensiveness of the words Mr. Newson seems to have posted to his Facebook Status.

But before jumping down that rabbit hole, why not have a look at the statute itself and see if we can identify first whether or not the Government really has a case against Mr. Newson on these facts.

 Frankly, it probably isn’t subject to a lot of debate that calling for the killing of cops or all white people is offensive, especially to cops and white people.  But people are allowed to be as offensive as they like, as a general rule, as long as they aren’t committing crimes.  The Queens District Attorney’s Office has charged Mr. Newson with a very particularly serious crime.

So let’s have a look at it.

In order to be guilty of Making a Terrorist Threat in violation of PL Code 490.20, Mr. Newson must have had ONE of the following three intentions when he posted his status to Facebook:

 He must have intended it intimidate or coerce a civilian population.

OR

He must have intended to influence the policy of a Unit of Government by intimidation or coercion.
OR

He must have intended to affect the conduct of a unit of Government by murder, assassination, or kidnapping

Now it seems to me that the District Attorney’s Office probably ought to have more than simply the fact that Mr. Newson posted those words to his Facebook status in order to establish any one of these three very particular specific intentions.  Who is he broadcasting these words to?  How many Facebook friends does he have?  Was the post public?  Is there any evidence that anyone acted on the words in any way at all?  Did a riot start?  Were torches lit?  Were pitchforks raised into the air?

It seems to me that the words alone probably shouldn’t be enough to support evidence beyond a reasonable doubt that Mr. Newson had any one of the three intentions required by the statute to make his speech a crime.

I would probably expect that the District Attorney’s Office would need additional evidence besides the words alone.  Otherwise, it isn’t hard to understand the words in the context of the far simpler explanation: that he posted an obnoxious statement unwisely on his Facebook account.  I think there are probably few people who actually have Facebook accounts who have not deeply regretted at least one Facebook status update.  Of course not everyone has posted something like this, but the point is we all understand the concept of making stupid statements you don’t believe literally.  A teenager says that if she isn’t allowed to go the big concert on a school night she will “kill herself”.  Do you really drive her to the hospital to be committed for mental observation?  

Once the Government became aware of Mr. Newson’s post (which in itself poses another interesting question as to why they were monitoring his Facebook page in the first place), investigation of course is justified, and apparently just what happened.

What will be interesting to note, however, is exactly what, if anything more than the words, the investigation uncovered.

Of course I can imagine an investigation that might have revealed evidence justifying an arrest for exactly what Mr. Newson is charged with.  Perhaps an investigation might reveal plans, weapons, provocative literature, equipment, and other things that would corroborate the theory that Mr. Newson had one of the three required intentions listed in the statute.  On the other hand, if the investigation revealed nothing but the words and some marijuana, I’m not so sure that the case is more than just a sort of public service message to the citizens of New York to be careful about posting crazy things on Facebook.

The Queens District Attorney’s Office also faces the challenge of the second part of the Terrorist Threat statute, which requires that if Mr. Newson had one of the illegal intentions, that in fact he thereby causes a reasonable expectation of fear of the imminent commission of such offense.

It will be interesting to see how the Government would establish beyond a reasonable doubt that anyone was caused to have a “reasonable expectation” of fear of the “imminent commission” of any offense.  Again, it is certainly possible if the District Attorney’s Office has the evidence.  But it seems to me there will need to be more than simply the words themselves.  As an experienced reader of Facebook and the sadly rather frequent barrage of nonsense posted, simply the words, as obnoxious as they are, don’t in my mind create a reasonable expectation of the fear of imminent commission of anything, with the possible exception of starting a flame war on Facebook.

The case has already taken an unusual procedural turn.  According to court records the case was arraigned on Friday but scheduled for today, July 22.  Under most circumstances, this would mean that the defendant has refused to participate in the Queens District Attorney felony waiver program.  If this is the reason for the extremely short adjourn date, that would mean that Mr. Newson has refused to engage in plea negotiations with the Queens District Attorney’s Office and is insisting that they present the matter to the Grand Jury with the statutory time period (approximately 6 days from arrest).  Mr. Newson is, in this way, putting the Government to the test to bring forward some evidence before the Grand Jury sooner rather than later, and Mr. Newson will be afforded the opportunity to testify himself.

The Grand Jury will have the power to refuse to indict the case, if they believe that the Government doesn’t have sufficient evidence to believe that Mr. Newson might have committed a crime.  If the Grand Jury refuses to indict the case then the case will be dismissed.

If the District Attorney’s Office fails to present the case to the Grand Jury by the end of the statutory time (possibly today or tomorrow), Mr. Newson will be released without bail, but the case will still exist.  The Government has six months to get the indictment.

Typically, the District Attorney’s Office likes to get defendants who are charged with felonies to agree to expand the statutory time to get an indictment.  Statistically, most defendants charged with felonies do agree to this, because failure to agree to it means that the District Attorney’s Office will refuse to engage in plea negotiations.  This can be disastrous in many situations where the District Attorney’s Office’s cooperation is needed in order to negotiate resolutions below severe mandatory minimum prison sentences.  For those who know they want to go to trial from day one, this policy is not particularly important.

If indeed Mr. Newson and his attorney have decided to put the Government to the test in the Grand Jury, it will be interesting to see what the Grand Jury makes of it.

Stay tuned...