Prosecution Of Justin Carter For Facebook Post is a Texas-Sized Legal Blunder

Right now, district attorneys in Comal County, Texas are in the midst of prosecuting a case so weak, so wasteful, and so unconstitutional, that all those associated with its execution should hide their heads in abject shame. In February, 18 year-old Justin Carter of Texas became embroiled in a heated Facebook exchange with a fellow online video game player. According to his father Jack, one user called Justin crazy, to which the teenager reportedly replied:

I think Ima shoot up a kindergarten / And watch the blood of the innocent rain down / And eat the beating heart of one of them.

His father says that post was followed by an “lol” and a “jk,” just in case anyone took the internet banter seriously.

Call it sarcasm in the first degree.

Unfortunately, that did not prevent a Canadian woman who observed the online exchange from notifying authorities, who arrested Justin. He was charged under Texas law with making a “terroristic threat” and held on $500,000 bail, which was set by a judge with a history of abusing his power. Not surprisingly, Carter’s family was unable to post bond.

But last week an anonymous benefactor posted his bail, rendering moot a bond reduction hearing that had been set for July 16. There is a pretrial hearing on August 12.

“We’ll be filing a motion to dismiss,” said Carter’s attorney Donald Flanary, who told PolicyMic he’s “quite optimistic.”

Flanary said that Carter’s comments were not criminal in nature because they did not constitute “a clear and present danger.”

While acknowledging the post may have offended some, Flanary maintains, “It was clear from the context it was meant to be satirical in nature.”

Carter had been in jail since April until his release last week. His father previously told the media his son had been beaten up and placed into protective custody.  

Carter was indicted under Section 22.07 (a)(4-6) of the Texas Penal Code, which deals with “terroristic threats.” That law states:

(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

[…]

(4)  cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;

(5)  place the public or a substantial group of the public in fear of serious bodily injury;  or

(6)  influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

It’s a straightforward statute, and it doesn’t take a lawyer to see that the state of Texas has an incredibly weak case.

For one thing, intent will be incredibly difficult prove for the prosecution, as they’ll have to show that Carter’s aim was to induce the sort of activity described in subsections 4, 5, and 6. The facts of the case simply don’t support that.

Flanary points out that Carter’s comments were made in a private conversation, and not directed toward the general public, which is one reason he believes the prosecution doesn’t have much of a case.

As the Supreme Court affirmed in Virginia v. Black, the onus is on the state to demonstrate intent when it comes to allegations of such intimidation. In that case, the court struck down a Virginia cross-burning law that stated in part, “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”

The court ruled the law possessed “indiscriminate coverage,” and was therefore unconstitutional. In Carter’s case, not only was there a lack of intent to intimidate, but there appears to be an utter lack of intimidation. No one in a position to feel threatened saw Carter’s comment, which was part of a private conversation.

Asked how he felt the prosecution would attempt to demonstrate intent to disrupt, threaten, or intimidate the public in accordance with the law, Flanary seemed genuinely perplexed at District Attorney Jennifer Tharp’s approach.  

“The case is so outrageous,” he says. “It’s pretty clear there’s no way they can meet the elements of the case. I have no idea why she wants to continue.”

If convicted, Carter could face 10 years in prison.

The Comal County District Attorney’s office declined to comment for this story.