Adam Mueller, co-founder of CopBlock.org, was found guilty of three counts of wiretapping in New Hampshire. Based on the law, there is little question that he was, in fact, guilty, and the jury took a mere 30 minutest to return the verdict.
Still, it’s wrong.
Carlos Miller provides a succinct summary of how and why Mueller, who writes under the name Ademo Freeman,
The case stems from an incident at a New Hampshire high school where a student video recorded a police officer beating up another student.
School officials ordered the student to delete the footage and he acted as if he did, but kept the clip showing the beating and gave it Cop Block, who turned it into a national story.
Mueller than recorded a video of himself calling the Manchester Police Department and the West High School in the same city, seeking comment about the incident from officials.
He didn’t inform them that he was recording, but he did identify himself from Cop Block and it was clear that he was seeking official comment because he didn’t beat around the bush with informalities.
The cop hung up the phone on him in a matter of seconds and it is believed police record all incoming calls into the station.
And the school official answered a few questions in a manner that it was clear she was speaking on the record before hanging up the phone.
New Hampshire is a two-party consent state, except for police. Carlos’ rationale notwithstanding, Ademo did not inform the other person on the phone that he was recording. Whether it was clear that the call sought “official” comment or not, it’s against the law. And so he was convicted.
Yet, the feeling of constitutional dissatisfaction with such a simplistic analysis is overwhelming. Ademo, it should be noted, represented himself. Had he prevailed with his argument, it would have been glorious, a David against Goliath fight where every libertarian’s dream was fulfilled. But he didn’t win.
The argument that needs making is whether the New Hampshire law passes muster under the First Amendment freedom of the press when the recording is made of a public official relating to the performance of his duty.
Mueller, who is representing himself, plans to use the Glik vs Boston landmark decision as one of his arguments, even though that stemmed from a case in which a man was openly video recording cops in a public park.
But if you read through the decision, you can see where it can apply in his case.
Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966).
Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.It was obvious from Mueller’s questions that he was seeking information to disseminate to the public.
Collecting honest and accurate information from public officials in the performance of their duty, where concerns of impropriety are the subject of serious investigation, is a core virtue of a free press. To require the investigator to alert his target that he’s recording the communication is to neuter the efficacy of the First Amendment. Would undercover agents alert their targets that they’re trying to make a drug bust?
Persuading a court that a state law is unconstitutional as applied is not an easy task. This argument has many moving parts, even though it may seem obvious to those inclined to understand why a prohibition on recording government employees in the performance of their duty, regardless of anything else. Much as it may draw the ire of those who believe that any citizen should have the ability to prevail in court, it’s not a game for amateurs. It’s an extremely difficult thing to accomplish.
Yet, this is a case where the law is unconstitutional as applied. The First Amendment is fundamentally offended by a law that impairs the ability of the press to record public officials in the performance of their duty, and the rationale behind such a law, the protection of privacy, does not bear up to strict scrutiny. The law falls woefully short under the circumstances of this case.
Ademo was sentenced to 12 months in jail, nine months suspended, which means he will spend two months (with good time) in jail and five years on probation, according to Cop Block co-founder Pete Eyre. Less than a lifetime but incarceration nonetheless.
Notably, Ademo was allowed to argue jury nullification, to argue to the jury to reject the law as written and acquit him nonetheless. Many want to believe that the conscience of good people is all that’s needed to save us from bad law, as if nullification is the magic bullet that will save us from an overreaching government.
Ademo’s closing took only a few minutes but it was strong and straight-forward. He acknowledged that he hadn’t informed those that he called that he was recording but he hammered-home the fact that they were public officials, that they knew he was affiliated with CopBlock.org and was seeking comment, and advocated for jury nullification.
It didn’t save Ademo.
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Blame the idiot jury.
You can blame anybody you want, but it doesn’t change anything. Constitutionality is determined by the judge, not the jury.
I don’t see how this can pass constitutional muster. Telling a reporter that he can’t record the interview without first getting permission seems to clearly abridge the freedom of the press.
I guess all he can do now is turn it into a Constitutional matter on appeal, which would probably take years and lots of money.
I’ve been following this story on copblock for awhile.
I think the problem with case is that Ademo didn’t just want to fight the unconstitutional application of the law. He also want to fight the process. I don’t think he submitted any jury instructions to counter the Prosecutions instructions which blatantly ignored the constitutional implications. In the video of the pretrial hearing he was somewhat flippant about the Prosecutions motion in limine to disclose his prior conviction. I think his attitude toward the proceedings and his desire to handle the trial his own way are what really led to this conviction.
I hope that he preserved the appropriate 1st amendment issues for appeal. If not then hopefully they can be preserved with the right post trial motions. I hope Ademo realizes he probably shouldn’t have gone pro se. Unfortunately, he’ll be finished with his sentence when/if this case is overturned.
I don’t either, provided it’s properly framed, argued and supported. It seems like a great case to me.
If he’s properly preserved the issue. If so, it will take years. My guess is he could get pro bono counsel, so it may not cost any money, but if it isn’t preserved properly, it’s gone. He can’t claim ineffective assistance of counsel since he went pro se.
It’s hard to imagine that Ademo couldn’t have gotten pro bono assistance. I suspect going pro se was a very bad choice.
Would it be correct to observe that going pro se automatically implies that one will receive ineffective assistance of counsel? (Not stating that it would be able to be claimed as such, more that one who represents himself has a fool for a client)
The video of the entire trial is now up. It’s 3 hours so I haven’t watched it all but it doesn’t appear the Ademo properly preseveed the issue. Hopefully, this can be cured with a post-trial motion in NH but if so the clock is probably already ticking.
No, it would not be correct. It depends on the complexity of the issues and competency, dedication and skills of the pro se litigant.
He makes a more impactful statement by going to prison and subjecting himself to the diseases spread there.
For example, if / when the Supreme Court gets this issue they are more likely to consider this case (whether they admit it or not) than if the jury just acquitted.
I mean, if the jury acquitted then I probably wouldn’t have heard about it (and I actually knew about the trial before it happened due to my interest).
Sometimes the true objective is a guilty verdict and a harsh prison sentence (the harsher the better).
It just depends upon what his goals are and what his capacity to sacrifice is.
I knew Randall Terry slightly, through my late mother. My take was that prison kind of broke him a bit.
Very gracious of you to offer up someone else’s life to “make a more impactful statement.” If you are interested in impactful statements, however, may I suggest using your own life in the future?
Mind if I ask what needed to be done to preserve the proper issues for appeal?
Don’t mind if you ask. The answer is quite long, involving years of law school followed by years of experience. The tl
R answer is you have to raise the issue, properly argue and support it and lose before it’s preserved for appeal. In other words, to use it on appeal, you would have had to give the trial judge the opportunity to decide first.
Let’s be clear here:
1. I didn’t try to convince him to throw his trial (primarily by not hiring a lawyer).
2. If I were the judge then I would have AT THE LEAST informed the jury that they could infer consent based on the circumstances of the call. And that is assuming I didn’t give a directed verdict based on unConstitutional as applied.
3. If I were on the jury I would have hung it.
I am merely presenting an alternative explanation of Ademo’s course of action that actually makes sense. And, yes, if everybody did what Ademo did then all the crim defense attys would have to switch to document review jobs in West Virginia or, perhaps, Mumbai. Wouldn’t worry about that outcome too much tho. Most folks (myself defo included) aren’t going to willingly suffer prison in the name of a cause.
You didn’t “try to convince him” of anything. You aren’t involved. Your speculation bears no relation to any known facts. You are not a judge.
You would do better to consider Occam’s Razor than cultivating an overly fertile imagination. The latter does not illuminate anything for anyone.
You speculated that Ademo was trying to win.
I wrote a reply speculating that Ademo was trying to lose.
Our respective speculations are equally speculative.
Pot, kettle, etc.
I don’t speculate. I rely on the information provided, in this case from Pete Eyre who was present for the trial and is Ademo’s co-founder of CopBlock. Your inability to grasp the distinction is one of the reasons why your comments are almost invariably worthless. I’ve tried to tell you nicely, but you aren’t getting it.
While your absurd theories may impress the laymen at non-lawyer blogs, though they sadly make them stupider for having read your comments, you’ve become too high maintenance with nothing worthwhile to contribute here. It’s not my job to constantly point out why you are clueless. The time has come for you spend your time elsewhere.
SHG is right, and if you watch the video Ademo did NOT preserve the issue unless he filed a pre-trial motion seeking to dismiss the charge based on the 1st Amendment. He never actually asked the judge to consider the constitutionality of the statute as it was applied to him. Just saying, “the charges should be dropped” or “I just want to speak the truth” or “public officials have no expectation of privacy” is not preserving the issue.
His only hope was nullification and he lost. What I find a bit ironic with that defense is that he clearly presented it and laid it out there, he even told them if they believed he harmed someone to find him guilty. Well, the jury did decide what they wanted to do. They wanted to find him guilty. Now all of his supporters are attacking the jurors (after attacking the police, the principal, the judge, and the prosecutor) instead of just acknowledging that most people want to follow the law and nullification almost never works.
Lesson: if you don’t like the law, go get it changed. Convince a majority of your legislators that it is a bad law.
I’m sure there wasn’t a pre-trial motion because it would have been argued at the pre-trial hearing. The whole issue constitutionality could have and should have been litigated beforehand.
I’ve much of the trial and it’s clear that a number mistakes were made that a competent attorney wouldn’t have made. The most glaring was a stipulation of facts regarding a complaining witness (calling her a victim is an insult to real victims) who wasn’t even present.
I’d have to research the issue but I think the Judge’s failure to appoint standby counsel for an incarcerated pro se defendant could be reversible error. Even a highly competent pro se defendant, especially if they’re incarcerated may need help with legal research or have procedural/legal questions that are just inappropriate for a judge to attempt to answer. Of course my reasoning often differs dramatically from appellate courts.