Anyone wanting to follow all the ins and outs of the Zimmerman case really should be reading Legal Insurrection. I will not follow every twist and turn, but I found this bit amusing.
Today they offered George
Zimmerman’s college transcripts and his educational experience, all in an
effort to suggest that because Zimmerman knew the law, he knew how to lie and
get away with murder... or something. It
is often said that ignorance of the law is no excuse for breaking it, but
apparently Florida prosecutors actually prefer you to be ignorant of the
law. Or something.
I am prepared to be wrong, but I wrote
this over a year ago, and nothing I have seen or heard has changed my view:
I have looked at the news reports and at this point in time, if you
cut through all the clutter one simple truth emerges: at the crucial moment
where the law decides whether George Zimmerman committed unlawful murder or
justifiable homicide under the principle of self-defense, there is only one
living witness: George Zimmerman.
Even if you prove George
Zimmerman is a dirty liar, that isn’t enough.
The state still has to prove beyond a reasonable doubt that he did not
act in self-defense. The state has to prove what actually did happen at that moment. And unless the state has some surprising evidence I had heard nothing about, I don’t
see how they possibly could get to conviction.
While a former
college professor of George Zimmerman's was testifying via Skype in his
televised second-degree murder trial, dozens of users tried to interrupt the
questioning by incessantly calling the witness.
As the calls
persisted in court Wednesday and it became obvious that they were not
accidents, defense attorney Mark O'Mara told professor Scott Pleasants:
"There's now a really good chance that we're being toyed with, just so you
know."
The trolling was
successful — the frustrated judge demanded that attorneys call a different
number and ditch the Skype session. Local news station WESH has video of the
fiasco.
4chan might have
been the source of the disruption. The Daily Dot reports that users of the /b/
imageboard tracked down the witness' Skype number online, although some
speculate that Reddit could have also driven Skype users to call.
You can watch a great deal of the
fiasco, here:
Okay, I admit when I heard of
this, I did a little of this...
...and a little laughing,
too. But something else occurred to me:
this might also be illegal, too.
I checked the Florida Statutes
first for obstruction of justice and there didn’t see an obviously applicable
statute. And then I check their computer
crimes statute, Fla. Stat. §815.06, which says:
815.06 Offenses
against computer users.—
(1) Whoever willfully, knowingly, and
without authorization:
(a) Accesses or causes to be accessed any
computer, computer system, or computer network;
(b) Disrupts or denies or causes the denial
of computer system services to an authorized user of such computer system
services, which, in whole or part, is owned by, under contract to, or operated
for, on behalf of, or in conjunction with another;
(c) Destroys, takes, injures, or damages
equipment or supplies used or intended to be used in a computer, computer
system, or computer network;
(d) Destroys, injures, or damages any
computer, computer system, or computer network; or
(e) Introduces any computer contaminant into
any computer, computer system, or computer network,
commits
an offense against computer users.
(2) (a) Except
as provided in paragraphs (b) and (c), whoever violates subsection (1) commits
a felony of the third degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
(b) Whoever violates subsection (1) and:
1. Damages a computer, computer equipment,
computer supplies, a computer system, or a computer network, and the monetary
damage or loss incurred as a result of the violation is $5,000 or greater;
2. Commits the offense for the purpose of
devising or executing any scheme or artifice to defraud or obtain property; or
3. Interrupts or impairs a governmental
operation or public communication, transportation, or supply of water, gas, or
other public service,
commits a felony of
the second degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
(c) Whoever
violates subsection (1) and the violation endangers human life commits a felony
of the first degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
(3) Whoever willfully, knowingly, and
without authorization modifies equipment or supplies used or intended to be
used in a computer, computer system, or computer network commits a misdemeanor
of the first degree, punishable as provided in s. 775.082 or s. 775.083.
Without a deep investigation into
the law, it appears that this the spammers were “willfully, knowingly, and
without authorization... [d]isrupt[ing]... computer system services to an
authorized user of such computer system services, which, in whole or part, is
owned by, under contract to, or operated for, on behalf of, or in conjunction
with another” and further such action had the result of “[i]nterrupt[ing] or
impair[ing] a governmental operation or public communication.”
First, it is without
authorization. The terms of service for
Skype prohibits users from “send[ing] unsolicited communications (also referred
to as “SPAM”, “SPIM” or “SPIT”).” Second
it was plainly disrupting, if not denying entirely, the ability of this witness
to use Skype that day. Third, it plainly
interrupted or impairs a governmental operation. So, on its face it seems to fit.
I suspect that the prosecutors in
this case will simply let it slide, but it is an illustration of one of the
most basic pieces of advice I give. It is very rare for something to be wrong,
but legal. If it is wrong, it is usually
safe to assume it is illegal, somehow, too.
Perhaps this is the product of the over-criminalization
of conduct that Glenn Reynolds rightfully complains about, but trying to do
wrong and hoping it is technically legal is never a wise course of action.
(And please note that I am not
saying that only things that are wrong are illegal. There are many things that are illegal that
are only morally wrong because they are illegal. For instance, it might not be immoral not to
stop at a particular stop sign, but it will be illegal.)
And yes what was done here was
immoral. The state and the defendant
equally have a right to a fair trial, and this disruption impaired that. That is immoral. And, sadly, predictable, which is why I laughed.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all, leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.
And let me say something
else. In my heart of hearts, I don’t
believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.
You're mistaken about the burden of proof being on the state in regard's to Zimmerman's claim of self-defense.
ReplyDeleteSelf-defense is an affirmative defense, which shifts the burden of proof onto the defendant.
On the charge of 2nd degree murder, however, this is basically moot; realistically Zimmerman cannot have both a depraved mind/ill will required for that charge and be acting in self defense. Effectively, a jury can find against the charge of 2nd even without coming to a conclusion on self defense or even concluding against Zimmerman's self defense.
However, on the lesser included charge of manslaughter, self-defense is Zimmerman's only defense, since he obviously has admitted to inflicting great bodily injury resulting in death. So if Zimmerman escapes the 2nd degree murder charge, he still has the burden to prove he acted in self-defense. The jury MUST believe him, since he is the only witness, which is contra what you argued.
Very interesting analysis. I have not been following this trial that closely so your post really adds some perspective and insight. Thanks for your post.
ReplyDeleteThe Skype TOS doesn't seem to define what it means by SPAM, SPIT, etc, as used in 6.3(c). The general meaning of the terms are the bulk sending of unsolicited, generally commercial, messages to a large number of recipients. That does not apply in this case.
ReplyDelete6.3(e), however, bars using it "to cause or intend to cause embarrassment..., or to harass..., any third party". That might stick.
As for the Florida computer crimes statute, I'm not sure §815.06(1)(b) applies either. Sure, the continual incoming calls and messages were annoying, but it was the result of how the O'Mara had configured Skype.
He had the option to turn notifications off, to only accept calls and messages from known users, etc. By failing to do so, O'Mara authorized anyone to IM or call him.
You might be able to get them under §815.06(1)(a), assuming that a terms of service violation automatically turns you into an unauthorized user. But I honestly don't hope you think that.
As Kozinski said in US v. Nosal; "...Consider the numerous dating websites whose terms of use prohibit inaccurate or misleading information... describing yourself as “tall, dark and handsome,” when you’re actually short and homely, will earn you a handsome orange jumpsuit."