There is no one outside of the Wyoming County, Pennsylvania, District Attorney’s office who thought that it was a good idea to threaten to prosecute a young woman for “sexting”.  But seeking, and obtaining, injunctive relief to prohibit District Attorney George Skumanick was a stroke of genius.  And it worked!

Granted, it was plain old idiotic to promote the idea that a teenager could be a sex offender against herself, but idiotic things seem to happen all the time in courtrooms across the country, so that alone didn’t distinguish the case.  And Skumanick had a superficial argument, that a deterrence was needed to stop young women from sending nude photos of themselves to others, for their own good.  No doubt, few parents would take issue with the idea that they would deeply prefer that their daughters not do so, though the survey says that only half were prepared to put their kids into prison or on the Sex Offender Registry to accomplish such a lofty goal. 

Now that the ruling is out, Doug Berman at Sentencing Law & Policy has made a provocative suggestion:

Based on the theories sustained in Miller v. Skumanick, a state murder defendant being threatened by a local prosecutor with a capital indictment as part of plea negotiations might now consider running to federal court to assert various constitutional claims in order to try to preclude the local prosecutor from pursuing a state capital prosecution. 

Similarly, perhaps Second Amendment advocates can and should be able to use the ruling in Miller v. Skumanick to try to thwart any efforts by aggressive state prosecutors to pursue any kind of constitutionally questionable gun prosecution.  In fact, with Plaxico Burress having a hard time getting a favorable plea deal (basics here), his lawyers perhaps out to seriously consider heading over to the federal courts in Foley Square to assert Second Amendment claims in an effort to force New York state prosecutors to back off.

Crazy?  Maybe a little, but not crazy enough not to give it some serious thought.  Why not take the aggressive position and go after the prosecutor rather than sit back and wait for the smack you know is coming.  As a defendant, we’re invariably fighting our way up the hill.  But as a plaintiff, we can seize the initiative and go after the prosecution on our own terms.  If the prosecution has a constitutional component that appears about to be violated, do we not have a duty to uphold the Constitution?  We swear to it when we’re given out ticket, so why not do something about it?

There is, of course, a strong possibility that federal judges will not be thrilled at the prospect of even more cases clogging their docket, or the hallways filling up with the types of people who are usually found hanging around the 11th Floor of 100 Centre Street.  After all, they have such nice new wood-paneled courtrooms in Foley Square, and they really aren’t set up for a mass of state court defendants putting their feet up on the mahogany tables.  But that’s not our problem, right?

And since I have no doubt that Ben Bronfman is getting a very healthy, though certainly not unconscionable, legal fee from Plaxico, and since he’s a leader of the criminal defense bar, he does indeed seem like the perfect lawyer to lead the way.  Go for it Ben!  We’re right behind you.