Of Zealous Prosecutors and Trial by Internet

n “Syriana,” last year’s hit movie about oil, power, corruption and terrorism, a powerful lawyer (Christopher Plummer) tells a once-idealistic CIA operative (George Clooney), “Here in Washington, you’re innocent until investigated.” Two administrators at a central New Jersey college discovered this truth applies beyond our nation’s capital, when they were indicted this summer for hazing (a felony) in the wake of an alcohol –related death on their campus. Although the charges were dismissed six weeks later on the motion of the county prosecutor, a writer in the Trenton Times aptly observed, “The Internet can keep reputations damaged forever, even when persons are acquitted…. Today, an estimated nearly 30 billion Web pages exist, according to boutell.com (www.boutell.com/newfaq/misc/sizeofweb.html).” On the Internet, you are innocent until blogged.
In some cases, even doing the hard-time and ostensibly paying your debt to society isn’t enough to let you get on with your life. Consider William Barnes, aged 71. Some 40 years ago he shot a Philadelphia police officer. Barnes was convicted of attempted murder for the November 27, 1966 shooting, which occurred when rookie cop Walter T. Barclay interrupted Barnes’s burglary of a beauty shop. Barclay was left a paraplegic. He died on August 19th of an infection at age 64. The Bucks County medical examiner ruled Barclay’s death a homicide, concluding there was a causal connection between the ’66 gunshot wound and ’07 fatal illness. Philadelphia DA Lynn Abraham has charged Barnes, who was paroled from prison in 2005 and now works in a supermarket, with murder.
Whatever the ultimate outcome of this bizarre prosecution, Barnes too is already being tried on the Internet.
For instance, a blogger on WordPress.com, one of the net’s most popular blog sites, asks, “So, what do you think? Should he be prosecuted for a crime he has already spent time in prison for?” One respondent opines, “No he served his time and paid his debt to society. I think the double jeopardy rule should apply hear. The fact that this man passed away 40 yrs later, then it shouldn’t be a murder charge. I think murder is when the person dies at the time of the crime or soon after.”
But another blogger retorts, “No no no…. he did die on that tragic day in 1966…he lost everything, his career, chance to get married and have children, and all the things you and I take for granted including being able to WALK!!!! Double jeopardy does not apply here. William Barnes got to serve a few years for attempted murder and seemed to go on enjoying life with no remorse based on his comments to a newspaper although he was in and out of prison even up to now at age 71!! 71 – an age Mr. Barclay didn’t reach. He lived to be 64 years of age of which 41 years were spent in hell. Barnes needs to face justice in our court system. If he is not tried in court, he will have to face the ultimate Judge – God.”
Clearly the Internet jury is still out on Mr. Barnes. Whatever the final cyberspace consensus, he is now permanently enshrined as one of the latest virtual villains of the world-wide web.
Andy Warhol, the avant-garde artist, predicted “in the future, everyone will be famous for 15 minutes.” The advent of reality TV, MySpace.com, Face Book, video-phones, and blog sites has extrapolated Warhol’s prognostication beyond the sixties icon’s wildest fantasies. Some hapless folks, targeted (rightly or wrongly) by zealous prosecutors, are in the words of the Trenton Times “Indicted forever.”


One Response to “Of Zealous Prosecutors and Trial by Internet”

  1. Lost in the chatter about the Barnes Barclay case is any discussion of relevant law. I think the Supreme Court Case BROWN v. OHIO, 432 U.S. 161 (1977) is dispostive here.

    In this case the Supreme Court concluded that “joyriding” and “stealing” a care constituted the same offense. These are two mutually exclusive offenses in that stealing constitues the intent to permanently take the vehicle. The court wrote:

    (a) “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,” Blockburger v. United States, 284 U.S. 299, 304 . In line with that test, the Double Jeopardy Clause generally forbids successive prosecution and cumulative punishment for a greater and lesser included offense. Pp. 166-169.

    (b) Here, though the Ohio Court of Appeals properly held that under state law joyriding (taking or operating a vehicle without the owner’s consent) and auto theft (joyriding with the intent permanently to deprive the owner of possession) constitute “the same statutory offense” within the meaning of the Double Jeopardy Clause, it erroneously concluded that petitioner could be convicted of both crimes because the charges against him had focused on different parts of the 9-day interval between petitioner’s taking of the car and his apprehension. There was still only one offense under Ohio law, and the specification of different dates in the two charges against petitioner cannot alter the fact that he was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments. Pp. 169-170.

    Here in the Barnes case we have a similar situation. Aggravated assult in Pennsylvania means:

    .–A person is guilty of aggravated assault if he:

    attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
    attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;
    attempts to cause or intentionally or knowingly causes bodily injury to a any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty;
    attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; or
    attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member, or other employee, including a student employee, of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school.
    attempts by physical menace to put any of the officers, agents, employees or other persons enumerated in subsection (c), while in the performance of duty, in fear of imminent serious bodily injury.

    The only difference between murder and aggravated assult in this instance is that the serious bodily injury is sufficent to cause death.

    I think there is a very strong double jeopardy claim.

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