Understanding Barrett Brown's Case



Understanding Barrett Brown’s Case
by Sue Basko

see also: Barrett Brown indictment as jpgs.
see also: Doxing and the Barrett Brown Indictment

UPDATE OCTOBER 17, 2012.  On October 15, 2012, Barrett Brown waived arraignment and pleaded not guilty.  Court files also show the Competency hearing scheduled for October 18 has been terminated.   As of November 7, 2012, Barrett is still in medical care at the prison and his case has been delayed because of this.   see BARRETT BROWN NOT GUILTY PLEA 

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October 6, 2012.  On October 3, 2012, a Federal indictment was issued against Barrett Brown, the writer who often talks about Anonymous.  Anonymous is a rubric under which many internet users classify themselves or their politically motivated activities, but there is no set organization or rules.  Barrett Brown is not the leader of Anonymous, nor its spokesperson.  He is a person who has voluntarily spoken to the media about Anonymous.  Barrett Brown is an extraordinarily talented journalistic writer with an acerbic wit.  

The indictment is based on Barrett Brown’s tweets of September 4 -12, as well as 3 youtube videos he made on September 11 – 12.  Over the course of those days, Barrett was very active on the internet. The indictment picks a few tweets here and there, which fail to give the whole picture or even to put the individual tweets in context. 

The indictment charges Barrett with three counts:

Count 1)  Knowingly and willfully making internet threats against FBI Agent Robert Smith in violation of 18 U.S.C. Section 875( c).  Specifically the indictment says Barrett Brown made threats to shoot and injure FBI agents, particularly Agent Robert Smith.  This is about a hodgepodge of tweets and ramblings on the videos, none of which appears to me to be an actual threat.  Quite the opposite: Barrett states several times, even in the cherry-picked tweets included in the indictment, that he does not mean he would kill or shoot.  Nevertheless, voicing any such words against anyone is cause for alarm.   

Count 2)  Conspiracy to make publicly available restricted personal information of an employee of the United States, under 18 U.S.C. Sections 371 and 119.  What does this mean?  It means that allegedly, Barrett tweeted out asking people to look up and send him personal information on FBI Agent Robert Smith and his family.  According to the indictment, someone complied. 

See: Barrett Brown and the Doxing Charge for a more detailed explanation of the law under which Barrett was charged.   

This is what is known as “doxing.”  Doxing is always illegal, whether it is done against a federal employee, a state employee, or a regular person.  There are federal and state laws that specifically address doxing government employees.  With regular citizens, doxing falls under various state criminal laws, such as stalking, cyberstalking, harassment, threats, and other such laws, depending on the state.  Since these doxing threats and activities are made on the internet, the law of any state may be invoked, though most often an investigator  will look to the state in which the person making the threat is located, if this is known, or the state in which the victim is situated.  A state prosecutor can only prosecute violations of the laws of his or her own state, and of acts that extend into their state.  When acts are on the internet, they extend into all the states.

 Misinformation was spread that doxing is legal.  I am not sure how or why anyone fell for that misinformation.  Surely, people must understand instinctively, even if they were misled about the law, that if they are threatening someone or putting them at risk, or tormenting or harassing the other on the internet, that this must be illegal.  Common sense would tell you that bullying or jeopardizing another would be illegal in some way.  So yes, doxing is illegal, no matter who the target.
See Barrett Brown and the Doxing Charge.   

Count 3) Knowingly and willfully retaliated against an FBI agent, under 18 U.S.C. Sections 115 (a)(1)(B) and (b)(4).  The FBI raided Barrett’s home last March. The indictment charges that the threats and doxing in Counts 1 and 2 were in retaliation for the March raid.

WHY IT TOOK SO LONG FOR BARRETT TO BE CHARGED:  In Federal criminal law, all indictments must come from a Grand Jury.  Barrett was arrested suddenly in response to youtube videos.  It takes some time for a Grand Jury to be convened.  A Grand Jury is a secret session.  The people who are grand jurors are forbidden from speaking about it, or even telling that the session was called.  At a Grand Jury, the jurors look at evidence presented by federal prosecutors.  The defendant does not usually make a presentation.  At the end, the jurors decide if an indictment will be issued and if so, what the charges will be.  In doing so, the Grand Jury is stating there is enough evidence to bring the case forward. (A regular jury in a court case is called a petit jury, or jury.  Grand and petit are French terms meaning large and small.  A grand jury has many more people on it than does a regular jury, which usually has 12 or 6.)  

WHO IS BARRETT BROWN’S LAWYER? Barrett Brown’s lawyer is Doug Morris, one of 10 lawyers who work at the office of the Federal Public Defender, Northern District of Texas.  Such jobs are highly coveted and competitive.  A federal public defender has the great advantage of working on a regular basis in the same set of courtrooms with the same sets of rules and the same judges.  They become expert at knowing their territory.  Federal defenders have many eyes watching their work: their clients, the Courts, their bosses at the Public Defenders office, and the media and public.  Doug Morris recently gave a presentation to other lawyers on preparing a defense for child pornography.  That says he is skilled at making defenses for criminal charges based on the internet. 

My opinion is that Doug Morris appears to be doing an excellent and appropriate job of defending Barrett Brown.  What has he done that I know about?  Barrett has been moved to an excellent minimum security facility.  He is getting needed medical care.  A competency hearing is scheduled.  These are all excellent, appropriate actions in Barrett’s best interest.

WHAT’S NEXT?  COMPETENCY HEARING. There is a competency hearing scheduled for mid-October.  This is conducted according to the rules set forth in 18 U.S.C. Section 4241.  The hearing comes about as a motion from the defense, prosecutor, or the Court.  The Court may order such a hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”  

Before the competency hearing takes place, the defendant is seen by a psychiatrist or psychologist, who prepares a report for the court.  The Attorney General sends the psychologist or psychiatrist a letter giving details of the alleged crime, together with background information on the defendant, including any history of criminal convictions and any prior history of mental illness.   If the defendant is found not competent, he is placed into the custody of the Attorney General, who places him in a hospital, either until he reaches competency or until the case is disposed of, whichever comes first.  Whether a defendant is found competent or incompetent, he may still raise an insanity defense at trial.

In making a competency determination, the standard is  "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960). 

Based on factors that are publicly known, Barrett Brown might be found incompetent to assist in his own defense.  He is known to be an on and off heroin addict, and has mentioned use of “Special K,” or ketamine, a highly potent hallucinogen.  He stated online that he was taking suboxone to try to get off heroin.  He was also said to be taking paxil and then abruptly stopped.  He was also apparently drinking strong alcohol.  In addition, there is the possibility of an underlying mental condition.  Such a condition will often cause a person to self-medicate, that is, use drugs or alcohol to try to treat the illness.  This often happens due to a lack of access to proper medical care or improper diagnoses, often occurring over years or decades. 

The doctor making the determination will meet with Barrett. Perhaps Barrett will be seen by whatever doctor is already treating him in the prison setting.  For those who have seen the youtube videos that are the subject of the indictment, it is reasonable to assume that trying to carry on a rational conversation with Barrett, as he is seen in the video, would be nearly impossible.  He seems manic, jumps from topic to topic, and seems to have very little grip on reality.  The videos display such a mental meltdown that they are hard to watch.  

It is a violation of Due Process to hold a trial for someone who does not have a rational and factual understanding of the proceedings.  If a defendant is found incompetent, the court then gets them medical help to try to make them competent.

It is my understanding that Barrett Brown is, at this time, in a prison medical treatment where he is undergoing detox and medical treatment.  It can take months for a patient to stabilize and become clear-thinking   Therefore, I think it is likely that, at the competency hearing, he will be found incompetent and placed into a hospital.  If that happens, the initial hospital term is up to 4 months, at which time it may be extended.  If, however,  the Court finds him competent at this time, the court case will proceed along.                                                

9 comments:

  1. Thank you so much. This is so useful. We've been left in the dark and it is good to have this explained.

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  2. Government is behavior manifestation against Unrest. (Same for 5,000 years. Is foundation of human civilization. Just as corporations behavior manifestation for profit.)

    (This was in my e-mail to Barrett on 9-4.)

    Taken to logical conclusion, Barrett wants Unrest, based on his behavior on and after 9-4.

    Interestingly enough, Barrett’s background image was symbol of Chaos. Chaos. Unrest. Just a coincidence, right?

    Greates wish granted. Chaos received.

    Moral of story: What we wish for is usually our greatest fear/nightmare. Psych parallels physics. :)

    Hint: Civilization and it's Discontents by Freud is a great start. A lack of an education (ignorance) is a choice.

    -Starts with an A

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  3. The DOJ uses its "hospitals" for torture, interrogation, murder. Lawyers should not put blind faith in DOJ.

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  4. Thanks for doing this.

    Also how is Doxing illegal? If I know someone's name I can usually find their address and phone number using google. Is compiling this publicly available information and re-releasing it illegal? How so?

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    1. I plan to write a whole blog post on doxing. There are federal laws against doxing federal employees. This is one of the counts in Barrett Brown's indictment. In addition, many states have such laws against doing this to state employees, officials, and/or law enforcement officers.

      If you are doxing a non-government person, this can be illegal under various laws that have names such as stalking, cyberstalking, cyberbullying, harassment, invasion of privacy, threatening, terroristic threatening, endangering the safety of, intentional infliction of emotional distress (this can be a crime or a tort, depending on state law), threatening a witness (if the person is a witness), intimidation, and other laws that exist in the different states. Depending on the situation, it might also be a hate crime or a violation of civil rights. Some states also have laws that specifically apply to students harassing or being harassed. Some states have laws about posting a person's name or photo on an indecent website without their permission. It really depends on the situation, but there are plenty of laws that can be invoked.

      When you do something on the internet, it reaches into every state and you open yourself up to potentially being prosecuted under the laws of any state.

      In addition, since it is being done in interstate commerce (the internet), you can be accountable under federal law. Also, if you dox someone using an internet website or service such as Facebook or Twitter or most other such services, you are violating the Terms of Service. Violating the terms of service can actually be a federal crime, depending on the situation, and especially so when the terms are violated in order to harm a person. There was a recent court case where a person violated the terms of service and created a fake account to harass another person, which led to the harassed person committing suicide -- and this was treated as a federal crime because of the violation of terms of service.

      If you DO post someone's personal information and if some harm comes to that person, you might also be charged with something related to that, possibly even with the crime itself. For example, if you post someone's address and then someone reads it and goes and kills that person or someone close to them, don't be surprised if you are charged with murder.



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    2. You seem to be conflating two different things. Posting someone's home address, employer, and other information that can enable various forms of harassment or attacks to come their way, certainly is wrong (except maybe where they did it first) and ought to be illegal, though I'm skeptical that it actually is.

      "Doxing", however, is a different thing: it means revealing the real name of someone who posts under a pseudonym. That is often quite rightful and deserved.

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    3. John, Please go over to the Table of Contents on the right hand side and read "DOXING AND THE BARRETT BROWN INDICTMENT." It explains the law under which Barrett Brown has been charged.

      "Doxing" is a term that means revealing "documents" about a person. This can range from revealing the name of a person who uses an alias, as you state, but more commonly refers to revealing whatever the person doing it feels will harm, shame, humiliate, endanger, or put the person at some risk. Doxing is a form of stalking or threatening and is illegal under many different federal and state laws, depending on the exact facts and location. Doxing might also be part of a conspiracy to harm, endanger, or even kill a person.

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  5. You would not be charged for murder, you could only be loosely tied as an accessory. Don't make up your own interpretations.

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    1. No, your statement is incorrect. Please avoid spreading misinformation that can cause others (or yourself) to end out in prison.

      One could very well be charged with murder if doxing led to a person being murdered, using such laws as Conspiracy or Accountability. Please understand that Conspiracy law can easily tie a person to murder if they were engaged in a common scheme or plan to harm a person. Federal Conspiracy laws are very broad and one need not even know of the person with whom they "conspire."

      Also, some states, such as Illinois and Florida, have Accountability laws that can hold a minor actor responsible for the crimes of another, even if that other person is not charged with the crime or is acquitted. For example, there are several people in prison for life sentences in Illinois and Florida for lending their cars to people who then went out and killed someone. In one case in Illinois, the person who supposedly committed the murder was acquitted, while the person who supposedly lent the car is in prison for life.

      "Accessory" laws also exist. However, the laws OFTEN used in charging where a serious crime has taken place are the Conspiracy laws and Accountability, in states where there are Accountability laws. BOTH of these kinds of laws make the person who assists in some way just as responsible for the main crime as if they had committed it themselves.

      EXAMPLE: A FEW YEARS AGO, Matt Hale, an Illinois white separatist, posted the name and home address of a Federal Judge on his website. After that, someone went to the Judge's home and killed her husband and mother. Investigators searched very hard to find a link, a Conspiracy, between Hale and the killer. As it turned out, there was none. The man had not gotten the address from Hale's website and had no connection whatever to Hale. However, the Federal investigators then wiretapped Hale's phone and had a man call him, during which call Hale vaguely agreed that he would not mind seeing the Judge harmed. This was made into a solicitation for murder charge and Hale is in maximum security prison till 2037.

      IF YOU POST a person's address or phone on the internet with the purpose that others can use that to go and harm or kill the person, you are a fool if you think Conspiracy or Accountability laws will not be used to hold you accountable. This is particularly likely if the person does in fact end out being harmed or killed.

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