UPDATE: The jury found him guilty.
In the age of citizen journalism where any citizen can pick up a camera and hold officials accountable, there are not many who have pushed the envelope are far as Adam “Ademo Freeman” Mueller.
The co-founder of Cop Block has found himself incarcerated numerous times over the years for his insistence on recording public officials in their public capacities.
He is incarcerated right now, serving 60 days on a resisting arrest charge, which actually is a result of a clerical screw-up.
But none of those stints in jail come close to his latest legal case in which he is facing up to 21 years in prison for felony wiretapping.
His trial, which begins today in Manchester, New Hampshire, has the potential to establish case law for years to come.
An acquittal will send the message that public officials do not have an expectation of privacy when they are speaking as public officials to a citizen on a telephone call.
A guilty verdict will send the message that police can record us without our consent but we can’t record them.
That, after all, is what law enforcement officials from all levels have been vying for all along.
We’ve seen so many wiretapping cases over the years, only for them to get thrown out of court because they usually consist of a citizen recording a cop in public where police have no expectation of privacy.
In fact, Mueller was acquitted on wiretapping charges last year in an incident where he was video recording cops in public in Massachusetts.
But this case is a little different in that he recorded a public official over the phone without specifically informing them that he was recording.
It wasn’t as if he recorded anything confidential, embarrassing or even that revealing. They basically gave him little or no comment and hung up the phone.
But in this age of citizen journalism, public officials will do all they can to keep citizens in check if it helps them from being kept in check.
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.
The New Hampshire wiretapping law, which specifically states that police can record citizens without their consent, states the following:
A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
(a) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication;
To fully interpret the law, we must read the legal definitions of the terms used.
I. “Telecommunication” means the transfer of any form of information in whole or in part through the facilities of a communications common carrier. “Telecommunication” does not include any communication made through a tone-only paging system or from a tracking device.
II. “Oral communication” means any oral communication uttered by a person exhibiting in expectation that such communication is not subject to interception under circumstances justifying such expectation.
III. “Intercept” means the aural or other acquisition of, or the recording of, the contents of any telecommunication or oral communication through the use of any electronic, mechanical, or other device.
In layman’s terms, a person is guilty of wiretapping if he records a conversation with a person who is under the impression that the call is not being recorded.
It was clear from the conversation that Mueller was seeking on-the-record comments and it was clear from the responses of both police and the school official that they were well aware of that.
We’ve seen how cops act when they don’t believe they are being recorded and when they are aware they are being recorded. It’s the difference between night and day.
Furthermore, these are all tax-funded public officials who were called at their tax-funded public institutions while working for their tax-funded salaries.
It may have been a little different if Mueller had called them at home after hours.
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.
And while some may argue that he conducted himself unethically by not informing them he was recording, the fact that he publicized his conversations shows that he was acting as transparent as possible. Nobody can accuse him of twisting their statements to his advantage.
Perhaps prosecutors are aware of this, which is why have already offered him several plea deals, which he has refused.
In fact, prosecutor Michael Valentine visited Mueller in jail and told him that if the jury found him guilty, he would ask the judge for a six-month sentence to be following by a two-year probationary “good behavior” period that could land Mueller in prison for up to two years if violated, the same conditions that he offered in the plea deal which shows Mueller had nothing to lose by rejecting the plea deals.
Don’t be surprised if they offer him even a better deal before the trial even starts.
Another fact that could possibly work in Mueller’s favor is the fact that New Hampshire passed a jury nullification law in June, which would allow defense attorneys to inform juries that they have the right to acquit citizens who violate laws that they find objectionable.
This would be a perfect case for jury nullification, especially in a libertarian-minded state like New Hampshire.
The only problem is that the law doesn’t go into effect until January 1, 2013.
But that didn’t stop Mueller’s supporters from standing outside the courthouse last week to hand out jury nullification pamphlets to potential jurors.
And court officials didn’t seem to have a problem with that, according to the Union Leader.
The pamphlets provided information about jury nullification, and a hung jury, which is when a jury cannot reach a unanimous verdict and the defendant is either retried, or the case is dropped.
Clerk of Court John Safford said some of the people called for jury duty had been handed the pamphlets, but nothing was made of it by court officials.
The Union Leader, which is Manchester’s main newspaper, also reported on the new law last month, which means there is a decent chance the jurors will already know about their right to acquit a defendant of a law that allows public officials to remain unaccountable.
And that’s what this case is all about. There was no invasion of privacy, which is what the wiretapping laws were created to protect.
This was simply a journalist seeking statements from public officials at a public institution on the public’s dime.
That is not only protected by recent case law. It is protected by the First Amendment.
In full disclosure, I worked with Mueller a couple of times on video projects, including the time down in Miami where he was assaulted by a Metrorail security guard, just two months after I was assaulted by a different guard working for the same company.
And the time I flew up to New Hampshire and attempted to interview the judge who had jailed Mueller for threatening him when Mueller’s video footage shows he was only trying to interview him.