Wednesday, September 29, 2010

MD Wiretap Violation Not a Slam Dunk Against O'Keefe

Earlier today I alleged that James O'Keefe deserves to be thrown in a Maryland State penitentiary for planning to illegally record a conversation with a correspondent from CNN. I may be wrong. I based this opinion on my reading of MD v. Graber, a case decided two days ago which brought the Maryland wiretap law to my notice. Though James O'Keefe may still have violated the law, the Maryland case law is not as clear on whether he is likely to be convicted if indicted as I had initially anticipated.

Upon review of the relevant case law, specifically a civil suit Hawes v. Carberry, 103 Md. App. 214 (1995), I discovered that it may be more difficult to prosecute O'Keefe than I had originally envisioned. In Hawes, the judge reversed a lower court decision which awarded damages to Mr. Carberry on the basis that Mr. Hawes illegally recorded a private conversation on Mr. Carberry's doorstep. While the Hawes decision reinforces my analysis of what constitutes an illegal taping as far as the requirements of surreptitiousness, one-party consent, and the expectation of privacy, the judge reverses the decision because Mr. Hawes's action was not sufficiently "willfull." Let's throw the old relevant sections up on the big board again:
§ 10-402 (a) Except as otherwise specifically provided in this subtitle, it is unlawful for any person to: (1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communicaton;

(2) Willfully disclose, or endeavor to disclose, to any other person the contens of wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle, or

(3) Willfully use, or endeavor to use, the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.

(b) Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000 or both.
Whereas I was using the plain meaning of "willfully", which I would say is equivalent to "intentionally", the judge in Hawes claims that what the legislature really means here is "knowingly". Not only must a person intend to carry out a recording scheme, but they must also know that the scheme is illegal. Hawes makes a hash out of the principle that 'ignorance of the law is not a valid defense.'

This requirement is not dispositive of the allegation that Mr. O'Keefe, in attempting to lure an unsuspecting person into a recorded and embarrassing conversation, violated the State of Maryland's wiretap law. So far, there are 5 reasons I believe he is still exposed.

The first is that there is a difference in how statutes are read in criminal and civil cases. While the Hawes case centered around whether a Virginia lawyer knowingly violated the rights of a Maryland man granted by the statute by recording what was essentially a neutral conversation, we have a very different pattern of behavior emerging from Mr. O'Keefe. Regardless of whether he was aware of a specific right under section MD CJ 10-402, his intention was certainly to violate the confidence and privacy of Ms. Boudreau. The reasoning in Hawes simply doesn't provide for the wanton and intentional conduct exemplified by O'Keefe's stunt. Indeed, this seems to be what the justices are getting at in Diebler v. Maryland 365 Md. 185 (2000). The Diebler opinion casts considerable doubt on the high "willfully" bar set in Carberry and notes the word has been construed in Maryland statutes to mean many things on a spectrum between"'only intentionally or purposely as distinguished from accidentally or negligently and does not require any actual impropriety,' but that it has also been held to require 'a bad purpose or evil intent.'" Diebler at 192.

Secondly, Hawes may simply be a bad precedent. Mr. Graber did not rely on Hawes in seeking to dismiss the wiretap charges against him, though they were hardly necessary. The judge in Graber did not bring them up on his own. LexisNexis lists Hawes as a questionable decision, and it has only been cited 6 times in 15 years.

The third reason I believe Mr. O'Keefe is still exposed is that he is on probation for wiretapping the Senate offices of Mary Landrieu in Louisiana. I imagine that if I were on probation for violating a specific law and residing in a state, I would research the comparable law of the land. This type of requirement may even be in Mr. O'Keefe's probation agreement, and if it isn't, it clearly should be.

Fourth: It is clear from the statements of the activist and co-conspirator who surrendered planning documents to CNN that there was some amount of organizational support for this plot. It is highly likely that any group granting money for such a political operation may have actually researched the legality of its plans. Project Veritas surely provided some sort of guidance in setting up this network of conservative activists, and might have had a supervisory role. It likely was aware of the law and made Mr. O'Keefe aware of it. Even if Hawes is considered to exist, this would place O'Keefe in jail.

And lastly, the Hawes decision is a terrible interpretation of "willfully", one which flies in the face of the plain meaning of "intentionally". There is an obvious criminal plot at play in this instance which would maliciously advance the interests of Mr. O'Keefe at the expense of Ms. Boudreau and her employer. Because the wiretap statute provides for "endeavoring" to have equal weight as actual capture of a conversation, it is the surest way to prosecute Mr. O'Keefe. This does not preclude the possibility that Mr. O'Keefe may have been engaged in a variety of ancillary criminal actions.

Even if the states' attorney does not file an indictment, or a judge dismisses teh count, or overturns a conviction, it is obvious that Mr. O'Keefe has broken this law . Can a public declare what is obvious even if a court refuses to do so? It is our duty to label lawlessness as such even if the institutions which are designed to perform this function fail us. The State of Maryland enacted the law- it is our turn to remind them to enforce it.

Please contact:
Elected by Voters to 4-year term:
Richard D. Fritz, Esq. (R), State's Attorney, 2010
P. O. Box 1755
Court Square Building, 22660 Washington St., Leonardtown, MD 20650 - 1755
(301) 475-4590, ext. 3

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