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Sunday, October 31, 2010

21st Century Bullying

I wrote recently on the issue of cyber bulling and how the law will respond to it. As a criminal defense attorney practicing in Mecklenburg Courts, I have definitely seen a dramatic increase in assault, battery, domestic violence, and communicating threats cases that originated with an internet post, Facebook post or text message. I have represented both plaintiffs and defendants in 50b protective order/restraining order hearings in Mecklenburg District Court. A recent incident with a family member of a friend in another state gave me further thought on this issue.

'John' is a 13 year old freshman in high school. As with many of his peers, he has an active Facebook account and can be found communicating through friends 30 feet away via text message. John was over at a friend's house one afternoon with his laptop. His Facebook page was open. He left the room for a short period of time. Nothing seemed out of the ordinary when he left that day. John returned home to find family members calling and posts to his Facebook account multiplying. One of John's 'friends' posted the following to John's Facebook page-
I can't take it anymore. I am GAY  and I don't care what any of you think...
The post was removed. However, a high school freshman boy was left to explain this post to his friends and family. John handled this very well but it gave me cause to think about whether the law should criminally punish the act of hurt feelings or embarrassment. Should we only reserve damage to reputation to the civil law arena? Criminal law was designed to punish an injury. Most of the time it's designed to punish a physical injury or the threat of a physical injury, as done in a communicating threats case. However, technology has forced society to reconsider using criminal law to punish public embarrassment to an individual.

Hypothetically, if John decided to retaliate and post a false statement about the Facebook hacker, do we punish John the same as the hacker? Wouldn't a criminal defense lawyer argue John's culpability is less than the hacker? This is a very difficult area of the law. I'm not sure how the legislature will respond to it. It just seems to be a very different world than when I was in high school and the common prank was taping 8.5 x 11 pictures to school lockers on a friend's birthday.

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Sunday, October 10, 2010

Judge Overturns Mecklenburg Jury Verdict

A Mecklenburg County Superior Court judge overturned a jury verdict this past week in a case where the defendant was accused of residential burglary. After the jury came back with a finding of guilty, Judge Eric Levinson overruled the jury's decision citing lack of sufficient evidence. This is rarely done. A criminal defense attorney will make the motion after the jury has returned the verdict of guilty, but the judge will often say something like "The jury has spoken. I see no reason to undermine the jury's decision".

I did not hear any evidence in the case and don't know anything about the case except for what I have heard and read in the news. I have to applaud the judge for this reason- regardless of your profession or your current situation- it is never easy to make an unpopular decision. The accused has a criminal record. The judge had to know that in light of the accused's past criminal record,  this was going to be an unpopular decision in the eyes of many people. The media would report the story. But the judge made the decision, a difficult one that is rarely made in criminal trials. As a criminal defense lawyer practicing in Mecklenburg County, that is a decision that deserves respect.

Watch the video: Judge overturns jury's guilty verdict

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Cyberbullying- How Should the Law Respond?

Cyberspace has been dominating the news since my last post. I previously blogged how the internet has changed the way people deal with each other. In the past few weeks, we have seen a young man commit suicide after finding out a roommate posted video of him having sexual relations with another man. Duke University has been in the news this week after an email from a former student has gone 'viral', including a power point presentation written by her titled "An education beyond the classroom: excelling in the realm of horizontal academics."  Recently a Mecklenburg County District Court Judge spoke about how the internet is playing an increasingly larger role in cases involving violence.

The law will be forced to respond to incidents like this. How should the law hold responsible the person who posts a confidential encounter between two people? Do we hold the person responsible for invasion of privacy or murder? Simple Justice addressed this issue in the post Define Cyberbullying- where is the line drawn for acceptable communications online? How do you account for a person who is more sensitive than another:
I have no definition to offer that satisfies all the concerns, but there is no doubt in my mind that we need one desperately. In its absence, expect to hear screams of cyberbullying everywhere, and laws that prohibit any communication that hurts someone else's feelings. Where should the law be drawn? 
This week I asked a high school sophomore how many text messages he sent in one day- more than 250. That did not include what he received. I also remember walking on UNC Chapel Hill's campus last year while I was attending a seminar- I noticed how students no longer really spoke. Everyone had a IPod in their ear and a cell phone in hand. The day of face to face communication seems to be lost.

How the law will respond to this will be the next question. Laws will be implemented and penalties will be imposed. Teaching the younger generation that the Internet is not private is a difficult task. Convincing a 16 year old that texting can result in a misdemeanor Communicating Threats case is difficult until the moment they arrive with their parents in the criminal defense attorney's office. Having a privacy setting on your Facebook page does not mean that it is private.  Sending an email with an attachment to your closest friends that you thought would be private can go 'viral' on the internet. Internet privacy is a misnomer. The criminal case that follows is not.

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