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Wednesday, September 9, 2015

Cyberbullying by Prosecutors Leads to Mistrial

Today's lesson for anonymous internet posters - it can cause a mistrial. U.S. v. Bowen (5th Cir. August 20, 2015). 

Five New Orleans police officers who were convicted of shooting unarmed civilians have been granted a new trial because of the online conduct of federal prosecutors.  The shootings occurred right after Hurricane Katrina. According to a recent decision by the Fifth Circuit Court of Appeals, federal prosecutors created an "online 21st century carnival atmosphere" by posting anonymous comments to newspaper articles about the case while it was ongoing. The officers were convicted at trial. However, before they were sentenced, it was revealed that a number of attorneys in the prosecutor's office had been leaking information about the trial and evidence, and making "inflammatory, highly opinionated, and pro-prosecution" comments on newspaper sites and a website called nola.com. The defendant officers moved for a new trial, arguing that the press leaks had inflamed public opinion against them and tainted their right to a fair trial.

The district court granted the officers a new trial, and the government appealed to the Fifth Circuit. The Fifth Circuit first noted that the fact that "three supervisory-level prosecutors committed misconduct...is beyond dispute" and their comments "stirred the pot" and "displayed partiality toward the prosecution." The court concluded as follows:
The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.
The court further notes that "[a]nonymity provokes irresponsibility in the speaker" and contributes to the "mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse." The court found that the prosecutor's cyberbullying against the defendants affected the officers' defense of their case, and could have even wider impact on other cases by intimidating witnesses and parties from testifying to avoid being the victim of online cyberbullying.

Post Authored by Julie Tappendorf


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