Tuesday, December 2, 2014

The Eminem Show at SCOTUS

UPDATE (06/25/2015): Elonis was decided on June 1, 2015, and reversed for a new trial. The case was decided on federal statutory grounds, and not constitutional grounds. Chief Justice Roberts wrote the majority opinion essentially holding the jury instructions used at trial would allow non-statutory authorized conviction potentially based on a negligent mental state. This probably buys the  defendant some more time, but at the end of the day it will be hard to argue (though I am sure he will) that his Facebook rant was done negligently and not with intent to threaten his now ex-wife.

 Eminem lyrics were quoted by Chief Justice Roberts during oral arguments at the Supreme Court of the United States on Monday, December 1, 2014. It must have been a sight watching the Chief Justice quote the real Slim Shady. The case has drawn much media attention, but the case is really another example of how SCOTUS fiddles while criminal jurisprudence burns.

  The facts of  Elonis v. United States are not defendant friendly, but then criminal First Amendment cases before SCOTUS rarely are. The defendant, Elonis, essentially used social media as a platform to threaten his ex-wife with, among other things, violent rap lyrics. SCOTUS blog has an excellent summary of both the evidence and the constitutional  issue.

   Elonis' First Amendment claim boils down to his contention he never meant to actually threaten his ex-wife. He maintains he was "venting". The trial court obliged the framing of the legal issue on appeal by agreeing with the government at trial by instructing the jury, basically, that whether a threat was intended should be viewed objectively. Elonis said this was wrong, and the first amendment requires a subjective view: Whether he intended to threaten his wife when posting online. 

   Yeah, I know, one person's trash is another's treasure. Nevertheless, what Elonis was probably doing was simultaneously threaten while trying to be slick about it. Only in Misogynist Wonderland would someone look at Elonis actions and believe he was venting rather than sending a not so subtle online threat to his ex-wife for all the world to see. 

   Interestingly, Texas criminal law was mentioned during oral arguments. The transcript is of oral arguments is  here. Elonis' lawyer points out (at page 10) that Texas law requires the person communicating the words subjectively intend the result - the same standard he advocates is required under by the statute at issue and the First Amendment. In answering a question from Justice Kagan the lawyer makes the observation,
[ELONIS LAWYER] Happily, Texas is one of the many states with a subjective standard so there is a good chance he will be acquitted.
   Wow. How many Texas cases this guy has tried to a jury? Justice Sonia Sotomayor, a veteran of actual criminal trial work, focused on intent with her questions to this lawyer (pages 6-7). The distinction the lawyer tries to make is one appellate specialists and law school professors love but leave many trial lawyers scratching their heads.
JUSTICE SOTOMAYOR:  You can infer what a person's state of mind is from the circumstances of how and what was said in words, correct?
[ELONIS LAWYER]: That is correct.
JUSTICE SOTOMAYOR: So if that's the case, isn't the jury acting like a reasonable person in looking at the words and the circumstances and saying, did he intend this or didn't he? I mean, I don't know what the difference between the standard given and the one the instruction you want.
  I know they had their reasons, but I cannot help but wonder why federal prosecutors did not just give Elonis the instruction he wanted. Instead, the trial judge sided with the government and gave Elonis' appellate lawyers fodder for razor thin constitutional arguments on intent. So much time and resources could have been saved.

So, while these esoteric arguments are made, Texas is prepared to execute a severely mentally ill man. Another example of SCOTUS resources used on law school distinctions and lyrics better left to Eminem.

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