Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON THE VERDICT IN THE RUTGERS UNIVERSITY “CYBER-BULLYING” HATE CRIMES TRIAL

With all due respect to my fellow professionals, I sometimes think that if you would read the Boston Criminal Lawyer Blog more often and take its message to heart…maybe we would not be looking back and saying “Whoops” so often.

The jury came back last week in the New Jersey case of Dharun Ravi (hereinafter, the “Defendant”). Actually, I suppose it should be known as the “Tyler Clementi trial” because Mr. Clementi and his death over-shadowed the trial…although the Defendant was never charged with his death.

Before we discuss the verdict, I would like to remind you of the first days that this matter came to light. We were still in the anti-bullying haze of the Phoebe Prince case.

The root of all evil was The Bully. While mis-reported “facts” abounded, the crusading local district attorney (now, ex-district attorney) grabbed headlines by indicting the kids involved in alleged bullying incidents. The Massachusetts legislature flew into a rushed frenzy, perhaps to not be undone, and passed an anti-bullying statute that they proclaimed the “toughest” in the country.

Apparently they had very little faith in the rest of the country’s strength because not only did the statute do nothing and have no teeth, it was also a vague omni-directional attempt to aid others in the passing the buck and confuse the situation further. It did give us a new holiday, which is “No Name Calling Day” which is to be celebrated annually.

I missed that particular parade this year. I did, however, find that last piece of nonsense kind of ironic given they were claiming the law prohibited any name-calling whatsoever. But, hey, that’s just me.

So, in the middle of Massachusetts officials’ jumping through semi-creative hoops to put an end to all bullying, New Jersey had its incident at Rutgers University. Again, before people bothered to get their facts straight, various versions of the story filled the airwaves and internet.

The most common version of the story, albeit apparently untrue, was that the Defendant had a roommate who was gay. Learning that his roommate was about to have a rendezvous in their room, the Defendant thought it would be a great idea to set up a webcam and broadcast the two men across campus. As, after the fact, Mr. Clementi (said roommate) found out about the broadcast, he took his own life.

Screams of “Murder!” and “Bully!” filled the air.

And then…the dust settled a bit as it usually does. It turned out that the facts as accepted by the general populace were not completely true. More significantly, even the prosecutors had to admit that this was not a case about murder, nor about bullying. In fact, no such charges were brought, the prosecutors were on record to indicate that they were not holding the Defendant responsible for Mr. Clementi’s death.

Instead of bullying, the theme changed to hate crimes. After all, the deceased, for who’s death the prosecutors said the Defendant was not responsible, was gay.

Besides, prosecuting hate crimes is always good for publicity.

Of course by then the court of public opinion had already reached its verdict. It was hardly possible that the jury would not be aware that Mr. Clementi had taken his own life. Likewise, it was unavoidable that any jury would already know that the Defendant was “responsible” for it.

Mere weeks before trial, both sides examined their respective cases. To demonstrate its faith that they were about to try someone tantamount to the Marque De Sade, the state of NJ offered the plea offer of no jail time whatsoever. Apparently just as confident that he would not be convicted by the jury as charged, the Defendant turned it down.

And so the case went to trial. The primary issue? Whether the Defendant hated gay people.

Now, as we discussed last week, it is legal to hate whomever you want in the United States. You simply cannot act on it. The prosecution, who had charged this matter as a hate crime, had to convince the jury that the Defendant did what he did out of hatred of the gay community. Now, such charges are usually used in crimes of violence…so-called gay bashing. Assault and battery…that type of thing.

There is no question that none of that took place here.

Relying on some witnesses who indicated world-changing testimony that the Defendant had indicated some discomfort with having a gay roommate, the prosecution argued that the case was a hate crime. The defense attorney argued that his client was an idiot kid who simply did something stupid and admittedly invaded his roommate’s privacy.

Now, at the trial, the Defendant did not take the stand. Whether that was smart or not is debatable. The Defendant had already come up with a rationale for the webcam incident. Namely, he was afraid that the roommate’s gentleman caller might steal his Ipad.

Given how small and light and easily carried away the Ipad is, this first attempt at a defense tends to support the defense lawyer’s argument about his client’s judgment.

Although off topic, I should point out that this is yet another reason why it is usually best not to make a statement and try to outsmart the police before you get a lawyer in the room.

At any rate, last week, the jury came back and found the 20-year-old Defendant guilty of all 15 counts.

The Defendant now faces the potential of more than 75 years in custody. Given the nature of the convictions, whatever is left of him after prison would likely be deported from the United States.

In the courtroom, everybody seemed stunned by the verdict. Even Mr. Clementi’s family seemed surprised.

During his jury charge, the judge apparently kept pointing out that the criminal statute involved is ambiguous and poorly written. Still, he did his best to explain it and give it to the jury.

It was, in fact, the first time that the state’s bias intimidation law has been linked to invasion-of-privacy charges. As mentioned earlier, it was usually linked to crimes of violence.

The author of the statute, Senator Joseph Vitale, says he now plans to modify the law in light of this case. He said that the law was properly applied by the jury, even if the Defendant’s circumstances might illuminate certain ambiguities in the statute. He added, “I think it’s always appropriate to look back at laws we write to see if they work and if they were properly applied…In this case, if the judge thinks it’s muddled … it’s worth it at the very least to look at the facts of the case, read the transcripts and see whether it was appropriately applied.”

And so goes experimentation in the law. All that is at stake, of course, is the lives of criminal defendants.

By the way, it may interest you to know that invading someone’s privacy is a civil action, not a criminal one, in Massachusetts. Motive is not an element.

Meanwhile, folks seem to be surprised by the verdicts and the realization of what amounts to invading someone’s privacy may mean to the 20-year-old Defendant. The reason? On the scantest of evidence, a jury had found that the Defendant did not like gay people. Was that worth the rest of his life?

And so, while the political cloud of bullying was unable to hold the Defendant, the cloud of hate crimes, equally political, did.

People, even the author of the law, are now wondering if this result was reallywhat they were after.

It is reminiscent of after crusading District Attorney Schabel indicted the kids in South Hadley. She finally left office and it was left to her replacement to get rid of these absurd cases with as little damage as possible. It even reminds me of the Massachusetts legislators passing the toughest anti-bullying bill which had no penalties for noncompliance.

Non-compliance, by the way, by anyone…school administration or student! Anyone in the “know” will tell you that there has been non-compliance a-plenty.

Wouldn’t it be easier if when confronting these very real, and long-standing albeit unfortunate, aspects of the underbelly of human nature, we put some thought in before we took action? It certainly would put fewer people in jeopardy. It might even improve the underlying problems.

The general citizenry turns toward the courts, police officers and legislatures to put thought into the cause of Justice and seek the truth. What we uncover time and again in this blog is that those offices then turn to see what will more likely play well in the media and go with that..

What can you expect when most of those decision makers are elected officials and the people are satisfied with quick feel-good answers that, down the road, are discovered not to have been very well thought out before being put into place?

People, it seems, have short collective memories.

Political expediency bastardizes the realities of the criminal justice system. It is as simple as that. If the people knew what they were getting, instead of what they are told they are getting, they would be horrified. I learned that by the time I reached the Homicide Bureau as a prosecutor in Brooklyn.

You may notice that instances of bullying have not gone down. At least, not as reported to my office! Hate crimes also continue to occur. Do you really think that teenagers, which the Defendant was at the time of the Rutgers event, are going to understand the nuances of the invasion of privacy and the importance of what they are thinking at the time?

One day we will have to face the truth and act on it or things will get even more out of control. In the meantime, we attack such problems in knee-jerk fashion, making things that should be nowhere near the criminal justice system punishable by the loss of liberty.

And now, we are holding our kids out to sacrifice to the gods of temporary answers and feel-good politicians.

We are now at the point where unpopular thoughts and words are illegal.

Wasn’t that kind of what this country was founded to allow? And do we really think our kids are going to realize the difference?

As we continue down this path, I wonder how many of us will be left on the outside of the jail cells looking in.

Because, to borrow the idea from the late Dean Martin song…everybody hates somebody sometime.

For the original story upon which today’s blog is based, please go to http://bostonherald.com/news/national/northeast/view.bg?&articleid=1061118331&format=&page=1&listingType=natne#articleFull

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