Pace Law Review Pace Law Review
Volume 35
Issue 1
Fall 2014
Symposium: Social Media and Social Justice
Article 7
September 2014
#Snitches Get Stitches: Witness Intimidation in the Age of #Snitches Get Stitches: Witness Intimidation in the Age of
Facebook and Twitter Facebook and Twitter
John Browning
Passman & Jones
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John Browning,
#Snitches Get Stitches: Witness Intimidation in the Age of Facebook and
Twitter
, 35 Pace L. Rev. 192 (2014)
DOI: https://doi.org/10.58948/2331-3528.1880
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192
#Snitches Get Stitches:
Witness Intimidation in the Age of
Facebook and Twitter
John Browning
*
I. Introduction
As long as there are trials and witnesses, there will be the
problem of witness intimidation. It is a problem that
undermines the functioning of the justice system by denying
crucial evidence to law enforcement and prosecutors while
simultaneously eroding the public’s confidence in the
government’s ability to protect its citizens. Intimidation can be
case-specific, in which threats or violence are directed to
dissuade a victim or witness from testifying in a particular
case, or community-wide, in which conduct by gangs or
organized crime is intended to foster a general atmosphere of
fear or noncooperation within a given neighborhood or
community. While recent statistics on the subject are
somewhat lacking, back in 1995 the National Institute for
Justice noted estimates by prosecutors that victim and witness
intimidation was suspected in up to 75–100% of the violent
*
John Browning is a Shareholder at Passman & Jones in Dallas, Texas,
where he handles civil litigation in state and federal courts. Mr. Browning
received his Bachelor of Arts with general and departmental honors from
Rutgers University and his Juris Doctor from the University of Texas School
of Law. He is the author of the books The Lawyer’s Guide to Social
Networking, Understanding Social Media’s Impact on the Law, (West 2010),
the Social Media and Litigation Practice Guide (West 2014); and Cases &
Materials on Social Media and the Law (forthcoming, Carolina Academic
Press), as well as numerous articles on social media and the law. He has
been quoted as a leading authority on social media and the law by such
publications as The New York Times, The Wall Street Journal, TIME
magazine, The National Law Journal, Law 360, and Inside Counsel
magazine. Mr. Browning serves as an adjunct law professor at SMU Dedman
School of Law, Texas A&M University School of Law and Texas Tech
University School of Law.
1
2014 #SNITCHES GET STITCHES 193
crimes committed in some gang-dominated neighborhoods.
1
But while witness intimidation itself has remained a
constant, the forms it can assume have changed dramatically
since 1995. With the advent of the Internet and the
pervasiveness of social networking platforms, the criminal
element has found a new tool to use in fueling an “anti-snitch
culture.” Seventy-two percent of adult Americans maintain at
least one social networking profile, and over 1.2 billion people
worldwide are on Facebook. With the Internet fostering a
sense of anonymity that may embolden many harassers, and
social media sites providing opportunities to learn more about
individuals than ever before, social media and online resources
generally have become increasingly important weapons in the
arsenal of harassment and intimidation. How important, one
might ask? One New York district attorney stated that social
media is the “[n]umber one impediment to doing my job as a
prosecutor.”
2
As with so many areas in which law has been impacted by
technology, laws pertaining to witness harassment and
intimidation do not reflect the importance of the Internet or
social media. Take the Federal Victim and Witness Protection
Act, for example.
3
Passed at a time when personal computing
was unheard of, it could not have possibly envisioned a world
in which witnesses could be targeted on Twitter or added to a
Facebook page devoted to “rats” or “snitches.” Many states
with witness intimidation laws have modeled them on the
federal statute. They are, like the federal law, formulated with
four key elements in mind: (1) the target’s status as a victim,
witness, or someone otherwise connected to a case that is (2) in
some stage of a criminal proceeding and (3) who experiences
intimidation, force, or threats of force by (4) someone acting
with the intent or purpose of influencing that person as a
witness. Courts typically look to the context of the statements
1
. Kerry Murphy Healey, Victim and Witness Intimidation: New
Developments and Emerging Responses, NAT’L INST. OF JUSTICE 2 (1995).
2
. James Staas, Man Convicted of Witness Intimidation After Grand
Jury Testimony Is Posted on Facebook, BUFFALO NEWS (Oct. 30, 2013 2:38
PM), http://www.buffalonews.com/city-region/erie-county-court/man-
convicted-of-witness-intimidation-after-grand-jury-testimony-is-posted-on-
facebook-20131030.
3
. 18 U.S.C. § 1512(b) (2012).
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194 PACE LAW REVIEW Vol. 35:1
or conduct in determining whether the intimidation element
has been satisfied.
4
In addition, “intimidate” is not usually
construed as requiring physical violence or the threat of a
specific injury.
5
In order to better understand witness intimidation in the
age of social media, one must examine both the forms it has
taken as well as the response by law enforcement and the
criminal justice system. As this article points out, the digital
age has brought with it a host of new ways in which witnesses
may be subjected to online harassment and intimidation across
multiple platforms, and those means have been used to target
not only victims and fact witnesses but even prosecutors and
expert witnesses as well. The article will also examine
potential responses to the problem of witness intimidation via
social media, including proposed legislation. And while the
focus of this article is on this problem as it currently stands in
the United States, it should be remembered that just as social
networking is a worldwide phenomenon, the use of such
platforms for witness intimidation is an international problem.
For example, Arab women living in the United States who have
filed domestic abuse charges against their husbands have
reported members of their families overseas being intimidated
and harassed through social media postings as a form of
pressure on the complaining victim.
6
And in Mexico, drug
cartels use social media to harass and target those who report
their actions.
7
II. Philadelphia—Ground Zero For Witness Intimidation
Using Social Media?
In 2013, the Philadelphia District Attorney’s office
described the problem of witness intimidation as being at a
4
. See, e.g., Commonwealth v. Perez, 954 N.E.2d 1, 19 (Mass. 2011).
5
. Commonwealth v. Brachbill, 555 A.2d 82, 85–86 (Pa. 1989).
6
. Kevin Davis, Intimidated: Witness Harassment Has Gone Digital, and
the Justice System is Playing Catch-Up, 99 A.B.A. J. 54, 56 (2013).
7
. John Burnett, Mexican Drug Cartels Now Menace Social Media, NPR
(Sept. 23, 2011 4:04 PM), http://www.npr.org/2011/09/23/140745739/mexican-
drug-cartels-now-menace-social-media.
3
2014 #SNITCHES GET STITCHES 195
“near epidemic” level.
8
In an increasing number of cases, that
intimidation takes the form of social media postings calling the
witness a “rat,” a “snitch,” and worse. In December 2013, 17-
year-old Nasheen Anderson pled guilty to charges of witness
intimidation and making terroristic threats.
9
He used his
Twitter account to post secret grand jury documents and
photos outing witnesses to a 2007 homicide and two 2012
shootings. The caption for one of the documents he posted read
“Expose all rats.”
10
Despite the guilty plea, it remains unclear
how Anderson received the documents from the grand jury
proceedings.
Anderson’s activities are a drop in the bucket compared to
the impact of an Instagram account called “Rats215.” Before it
was ultimately shut down, the account grew to 7,900 followers
and was being updated almost daily.
11
Between February and
November 2013, the account outed more than thirty witnesses
to violent crimes, in many instances posting photos of the
witnesses, their statements, and testimony.
12
In one example,
the account posted a photo apparently taken while the witness
was testifying in court. In another, photos and evidence from a
shooting case heard by a secret grand jury were posted. Posts
would draw dozens of approving comments and “likes” from
readers, many of whom would call for “hits” to be put out on the
witnesses being identified.
13
The account holder routinely
asked followers to pass along documentation on suspected
“rats.” A police detective stumbled onto the account in early
November 2013 when he was monitoring social media for
8
. Kevin McCorry, Witness Intimidation at “Near Epidemic” Level,
NEWSWORKS.ORG (Apr. 11, 2013),
http://www.nbcphiladelphia.com/news/politics/Witness-Intimidation-Near-
Epidemic-Level-202572451.html.
9
. Alex Wigglesworth, DA: Philly Teen Admits to Using Twitter for
Witness Intimidation, PHILLY.COM (Dec. 4, 2013 5:31 PM),
http://www.philly.com/philly/news/breaking/DA_Philly_teen_admits_to_using
_Twitter_for_witness_intimidation.html.
10
. Id.
11
. #rats215, INSTAGRAM, http://web.stagram.com/tag/rats215/.
12
. Mike Newall & Aubrey Whelan , Police Probe Website Targeting
Crime Witnesses, PHILA. INQUIRER (Nov. 9, 2013),
http://articles.philly.com/2013-11-09/news/43827173_1_witness-north-
philadelphia-instagram.
13
. Id.
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196 PACE LAW REVIEW Vol. 35:1
another case.
14
And while the account was ultimately disabled
after police obtained search warrants for the account, its very
existence underscores the new dimension that witness
intimidation has taken on in the age of Facebook, Instagram,
and Twitter. Angela Downes, co-chair of the Victims
Committee of the ABA’s Criminal Justice Section, describes it
as “a new frontier,” “being done in a way we never could have
imagined before. We see a lot more people being intimidated
through Facebook and even on Twitter.”
15
Unlike a threatening letter that can be destroyed, witness
intimidation via social media is memorialized online. It’s done
in a very public way, seen by many others who often throw
virtual gasoline onto the fire with their comments, “likes,” calls
for “hits,” or sharing of further information. With an account
like “Rats215,” a kind of online mob hysteria quickly takes
shape, feeding the “snitches get stitches, or wind up in ditches”
mentality.
In another Philadelphia-area case, Alisha Harmon of
Pottstown, Pennsylvania was convicted in September 2012 of
using Facebook to intimidate a witness to an attempted murder
committed by her boyfriend.
16
Following her boyfriend’s arrest
for the September 26, 2010 shooting of a rival gang member,
Harmon made a series of Facebook posts, including a copy of
the statement given by an eyewitness. That post included the
witness’ name, address, age, and phone number, as well as a
note from Harmon reading “[Racial epithet] Need 2 Exercise
Their Right 2 Remain Silent!!!! Rat [expletive].”
17
In recorded
jailhouse phone conversations between Harmon and her
boyfriend, police heard Harmon admit “We put that paperwork
on Facebook” so “everybody can see it.”
18
When Pottstown
detectives searched Harmon’s residence, they also found a copy
of the eyewitness statement in her bedroom. Harmon was
14
. Id.
15
. Davis, supra note 6.
16
. Carl Hessler, Jr., Pottstown Woman Gets Jail for Facebook
Intimidation, MERCURY NEWS (Sept. 21, 2012, 4:28 PM),
http://www.pottsmerc.com/article/MP/20120921/NEWS01/120929829.
17
. Id.
18
. Id.
5
2014 #SNITCHES GET STITCHES 197
sentenced to two to five years in state prison.
19
III. A National Problem
The problem of witness intimidation via social media is not
limited to Philadelphia, but is as pervasive as social media
itself. Every conceivable communications platform in the
digital age has been misused for the purpose of witness
harassment and intimidation—even gaming systems. One
witness in a criminal trial even received comments posted on
his Xbox Live profile from the defendant warning “I wouldn’t
laugh 2 much U a dead man walking” and “Rats die slow.”
20
To
illustrate the national scope of this problem, consider the
following examples:
In Santa Fe, New Mexico, a 19-year-old man was
charged with using comments on his Facebook page
to intimidate a witness in a counterfeiting case
pending against his father, a former police officer;
21
In Brooklyn, New York, four supporters of an
Orthodox Jewish counselor charged with child
molestation took a photo of his accuser while she
was on the witness stand and posted it on Twitter.
They were ordered to leave the courtroom and were
later charged with witness intimidation;
22
In Napa County, California, 19-year-old Manuel
Ramirez was arrested in September 2012 on
charges of witness intimidation. Ramirez, a known
gang member, posted information on a social media
site about the alleged victim in an alleged gang-
related fight after the victim testified in a court
hearing;
23
19
. Id.
20
. Man Gets Caught Threatening Witness on Xbox Live, TECHEYE.NET
(April 14, 2014, 3:58 PM), http://news.techeye.net/internet/man-gets-caught-
threatening-witness-on-xbox-live.
21
. Davis, supra note 6.
22
. Id.
23
. Man Arrested on Suspicion of Witness Intimidation, AM. CANYON
EAGLE (Sept. 1, 2012, 6:00 PM),
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198 PACE LAW REVIEW Vol. 35:1
In Baton Rouge, Louisiana, Anthony Williams and
Bobby Riley were indicted in July 2013 on federal
witness intimidation charges after they posted
threats on Instagram to harm a witness.
24
The
witness had testified during the April 2013 trial of
Angela Myers, who was convicted of filing false
claims for tax refunds using the names and Social
Security number of identity theft victims;
25
In Michigan, 20-year-old Jarrell Broadnax was
charged with witness intimidation after he posted
pictures online of two witnesses (Nicolas Gibby and
Demarco Taylor) in the case of the murder of
Eastern Michigan University football player
Demarius Reed, and referred to them as snitches.
26
The judge later dismissed the charges, ruling that
Broadnax was merely voicing an opinion;
27
In Virginia, U.S. Attorney Timothy Heaphy
successfully prosecuted John Conner and Whitney
Roberts on witness intimidation charges after they
set up and used a Facebook account to expose and
intimidate witnesses preparing to testify against
Conner on charges that he burned two houses to
punish a girlfriend and collect the insurance.
Among the offending posts was one that read, “How
the hell can u b a gangsta when u snitchin and
lien”;
28
http://napavalleyregister.com/eagle/news/local/man-arrested-on-suspicion-of-
witness-intimidation/article_f9562cbc-f494-11e1-8b9f-0019bb2963f4.html.
24
. 2 La. Men Charged With Threatening Trial Witness, ASSOCIATED
PRESS (July 27, 2013, 4:16 AM),
http://www.goerie.com/apps/pbcs.dll/article?AID=/20130727/APN/130727058.
25
. Id.
26
. Elisha Anderson, Witness Intimidation Charges Dropped in Case
Tied to Death of EMU Football Player, DETROIT FREE PRESS (May 21, 2014,
7:53 PM),
http://www.freep.com/article/20140521/NEWS05/305210192/witness-
intimidation-EMU-Reed.
27
. Id.
28
. Inmates Use Facebook to Harass Their Victims, Intimidate Witnesses
From Behind Bars, ASSOCIATED PRESS (Nov. 21, 2011, 9:30 AM),
http://www.nydailynews.com/news/national/inmates-facebook-harass-victims-
intimidate-witnesses-behind-bars-article-1.980641.
7
2014 #SNITCHES GET STITCHES 199
Upstate New York has witnessed more than its
share of witness intimidation through social media.
In October 2013, drug defendant David McKithen
was convicted in Buffalo of intimidating a witness
and witness tampering. McKithen received grand
jury testimony and witness statements from his
defense attorney, but then sent the material to his
then-girlfriend (and later wife) Deyanna Daniels to
post on Facebook on the eve of trial. After the
grand jury testimony and statements were posted to
Facebook, two witnesses received threats to
themselves and members of their families.
29
It was
unclear how long the material had been on
Facebook, but it was removed soon after one of the
witnesses’ mothers discovered it. In addition,
McKithen’s intentions appeared clear in a phone
call recorded in jail while he was awaiting trial, in
which he said “Nobody talks, everybody walks.”
30
Erie County District Attorney Frank A. Sedita III
noted that criminals’ use of social media for
intimidation was “very troubling,” saying that,
“[t]hey’re using technology to intimidate people.
They used to show up at your door or leave a
threatening note. Technology makes it easier to
intimidate witnesses. All you have to do is have a
keyboard.”
31
Sedita also called such witness
intimidation “the No. 1 impediment to me doing my
job as a prosecutor”;
32
Meanwhile, in Albany, New York, in April 2014,
Rahkiem Johnson pled guilty to felony charges of
intimidating a witness. The 19-year-old Johnson
had posted on his Facebook page the photo and
name of another young man who was a witness in a
botched robbery/shooting case pending against
another teen, El-Khaliem Myrick. Johnson also
included the words, “WANTED,” “Reward $1,000,”
29
. Staas, supra note 2.
30
. Id.
31
. Id.
32
. Id.
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200 PACE LAW REVIEW Vol. 35:1
“He’s a [expletive] RAT!” and “I Got a Bounty on
His Lil [expletive] Head”;
33
In Grafton, Massachusetts, seven teenagers were
arrested in January 2014 on felony witness
intimidation charges for allegedly cyberbullying the
15-year-old victim of a violent crime. The teenagers
were friends of the person charged with committing
the crime, and they allegedly harassed the victim
on Facebook and Twitter over a period of several
months, making threats and demeaning
comments;
34
In Steubenville, Ohio, the case of an alleged rape of
a 16-year-old girl by two star Steubenville High
School football players gained national exposure, in
part because social media permeated the case.
Evidence of the assault was posted to social media
sites like Twitter and YouTube, and it was a
backlash on social media to law enforcement’s
initial hesitation to bring charges that put the case
in the national spotlight. Prior to the conviction of
the two defendants, two teenaged girls were
charged with felony witness intimidation for tweets
in which they harassed and threatened to kill the
rape victim.
35
In addition, a number of other
Twitter users posted messages condemning the
victim’s character. Ohio Attorney General Mike
DeWine stated, “People who want to continue to
victimize this victim, to threaten her, we’re going to
33
. Bryan Fitzgerald, Witnesses Exposed on the Web, TIMESUNION.COM
(May 4, 2014), http://www.timesunion.com/local/article/Witnesses-exposed-on-
the-Web-5452747.php.
34
. Alyssa Creamer, Seven Grafton Teens Arrested on Felony Witness
Intimidation Charges for Allegedly Cyberbullying the Victim of a Violent
Crime, BOSTON GLOBE (Jan. 25, 2014, 7:24 PM),
http://www.boston.com/news/local/massachusetts/2014/01/25/seven-grafton-
teens-arrested-felony-witness-intimidation-charges-for-allegedly-cyber-
bullying-the-victim-violent-crime/V7sn8b4axyorUa535jA0XK/story.html.
35
. Brittany Brady, Chelsea J. Carter & Michael Pearson, Two Teens
Charged Over Threats Via Social Media Against Steubenville Rape Victim,
CNN.COM (Mar. 19, 2013, 6:03 PM),
http://www.cnn.com/2013/03/19/justice/ohio-steubenville-case/.
9
2014 #SNITCHES GET STITCHES 201
deal with them and we’re going after them.”
36
The national trend of witness and victim intimidation via
social media also includes juror intimidation. In Cleveland,
Ohio in 2010, Cuyahoga County Judge Nancy Russo was
presiding over the murder trial of Dwayne Davenport, accused
in the fatal 2009 shooting of Michael Grissett.
37
On the second
day of trial, jurors noticed two men—Andre Block, a friend of
the defendant, and Dwight Davenport, the defendant’s cousin—
pointing a flip camera and a cellphone at the jury.
38
The jurors
brought it to the attention of Judge Russo, who promptly
declared a mistrial and had the two men arrested on contempt
of court charges.
39
She found both guilty and sentenced
Davenport to 30 days in jail and Block to 60 days in jail.
40
Just the mere act of pointing a cellphone at a witness in a
courtroom has been held to satisfy the elements of witness
intimidation. In one Massachusetts case, the defendant in a
drug-related case pointed a cellphone at an undercover police
officer in a courtroom hallway while the officer was waiting to
testify against the defendant.
41
Witness intimidation charges
were brought, and the officer testified about his fear of being
recognized if his photo were posted online, as well as his fear of
retaliation against his family.
42
There was no evidence of any
photos actually being taken or residing on the defendant’s
computer, much less being shared or distributed online.
Nevertheless, the appellate court upheld the witness
intimidation conviction. As the court noted, “It is irrelevant
whether any photographs were taken, as the police officer was
made to believe that the defendant was taking pictures of him
and could disseminate his likeness, an act intended to
36
. Id.
37
. Eric Robinson, Trial Judge Imposes Penalties for Social Media in the
Courtroom, DIGITAL MEDIA L. PROJECT (Mar. 3, 2010),
http://www.dmlp.org/blog/2010/trial-judges-impose-penalties-social-media-
courtroom.
38
. Id.
39
. Id.
40
. Id.
41
. See Commonwealth v. Casiano, 876 N.E.2d 475 (Mass. App. Ct.
2007).
42
. Id.
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202 PACE LAW REVIEW Vol. 35:1
intimidate.”
43
IV. Harassing the Prosecutor?: State v. Moller
The digital age has done more than usher in new ways to
threaten and intimidate witnesses. It has also added a chilling
new dimension to one of the accompanying risks of being an
officer of the court—threats and harassment from those
unhappy with the prosecutor’s performance of his or her duties.
With the U.S. Supreme Court’s granting of certiorari in United
States v. Elonis for its Fall 2014 term, the debate over where
the boundary lines are drawn between true threats that are
unprotected by the First Amendment and legitimate criticism
of public officials that does enjoy such protection is slowly
becoming more focused.
44
In the context of using social
networking platforms and other online avenues to harass or
intimidate, it is hardly surprising that prosecutors may find
themselves the subject of unwanted attention by those
associated with the subjects of their prosecutions. One recent
Wisconsin case, State v. Moller, illustrates how incidents of
online intimidation of prosecutors can raise troubling questions
for both supporters of greater prosecutorial protection and free
speech advocates.
45
The case involved the appeal by Michel
Moller of his conviction for stalking “K.C.,” an assistant district
attorney in the Dane County District Attorney’s office.
46
Moller
was apparently unhappy over the prosecution by K.C. of his
wife Lynn Moller, a daycare provider who was charged with
child abuse for allegedly abusing children in her care.
47
In
March 2010, K.C. won a conviction of Lynn Moller on multiple
counts of child abuse.
48
In September 2010, Mark Kerman (then employed as a
victim-witness specialist with the Dane County D.A.’s office)
43
. Id. at 479.
44
. United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), cert. granted,
No. 13-983, 82 U.S.L.W. 3538 (June 16, 2014).
45
. State v. Moller, No. 2013AP2147-CR, 2014 Wisc. App. LEXIS 512, at
*1 (Wisc. Ct. App. June 26, 2014).
46
. Id.
47
. Id.
48
. Id.
11
2014 #SNITCHES GET STITCHES 203
discovered images relating to K.C. appearing on multiple
websites, sometimes accompanied by blog entries.
49
Kerman
informed K.C., who went to the websites herself, and saw
images that included the following:
a. a photograph of K.C.’s home, with her name and
address written on it, posted on September 22,
2010;
50
b. an image of a Barbie doll in a courtroom wearing a
low-cut shirt and a barrette in her hair, with the
name of K.C.’s husband written on the barrette and
the name of K.C.’s son tattooed above the doll’s left
breast (this image was posted on August 27,
2010);
51
c. a “booking photo” of a Barbie doll with a black eye
and holding a sign bearing K.C.’s name, birth date,
and the words “solicitation” and “Dane County Jail”
(this image was posted on August 28, 2010);
52
d. an image of a Barbie doll posed with her hands
down the pants of a shirtless male doll, with text
reading “Dane County, Wisconsin – Assistant D.A.
[KC.] working her, quote, Job?, end quote” (this
image was posted on September 22, 2010);
53
e. a still shot of K.C. from a television interview that
she gave, with a white mask featuring a five-
pointed star in the background;
54
f. a photograph of K.C.’s daughter, modified to make
her eyes reddened similar to the ruptured blood
vessels in a victim of shaken baby syndrome,
bearing the file name “theyshakeme.jpg”;
55
g. the same photograph of K.C.’s daughter, posted
directly above an article about a shaken baby
49
. Id.
50
. Id. at *4.
51
. Id.
52
. Id.
53
. Id.
54
. Id. at *5.
55
. Id.
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204 PACE LAW REVIEW Vol. 35:1
victim;
56
and
h. the identical photograph of K.C.’s daughter without
the digital manipulation but bearing the file name
“Abusedchild.jpg.”
57
The assistant D.A., K.C., testified that two of the original
photographs (in their pre-altered form) of her daughter and her
with her family were identical to ones on her Facebook profile,
a page that she had restricted to private (access to friends
only).
58
As at least one court noted in discussing Facebook’s
privacy settings, “Access can be limited to the user’s Facebook
friends, to particular groups or individuals, or to just the
user.”
59
K.C. learned that the contents of her social media
profile could have been shared with Moller when she checked
the Facebook page of her cousins, Emily and Wesley, and saw
that Moller appeared in their list of Facebook friends.
60
As for
the photograph of her house, K.C. testified that it did not come
from her Facebook page, nor could it have come from a real
estate listing since the house had never been listed.
61
Moreover, she testified, based on the growth of the bushes and
shrubs depicted in the photograph of her property, that the
photo must have been taken in July or August 2010.
62
Moller was charged with stalking under Wisconsin Statute
§ 940.32(2). During the investigation, it was revealed that
Moller admitted to posting and “doctoring” the photos, that he
had physically observed K.C. at a hearing in another child
abuse case, and that GPS surveillance of his car showed that
Moller had been by K.C.’s house.
63
Moller acknowledged that
he felt K.C. had “unfairly targeted” his wife, and that she
“needed to be watched.”
64
The jury found him guilty of
56
. Id.
57
. Id.
58
. Id. at *15.
59
. Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659,
662 (D.N.J. 2013).
60
. Moller, 2014 Wisc. App. LEXIS 512, at *1.
61
. Id. at *12.
62
. Id.
63
. Id. at *16.
64
. Id. at *14.
13
2014 #SNITCHES GET STITCHES 205
stalking.
65
On appeal, Moller argued that the evidence was
insufficient to show that he had engaged in a “course of
conduct” within the meaning of Wisconsin’s statute, such that
he knew that one or more of the acts would cause K.C. to suffer
serious emotional distress.
66
The appellate court rejected this
argument, finding that there was ample evidence from which a
jury could have found Moller should have known that his act
of—among other things—”friending” K.C.’s cousins and then
disseminating private photographs of K.C. and her family was
likely to cause serious emotional distress.
67
Besides the photos
themselves, the court pointed out, there was compelling
testimony from K.C. She testified that the posts seemed to
have “an ongoing increasing focus on me and my family and my
children.”
68
As K.C. testified, Moller “made it clear” that “he
knew where I lived and he knew my children and he was
finding everything out he could about my family. He contacted
my cousins in Florida. It was disturbing and affected me.”
69
In
fact, the court also upheld the jury’s order for Moller to pay
K.C. restitution in the amount of $1,997.64, to compensate her
for the installation of a home security system.
70
Some scholars may argue that the significant power and
prosecutorial discretion wielded by an assistant D.A. like K.C.
means that their professional decisions should be subjected to
more public criticism and heightened scrutiny. After all, they
might say, Moller has every right to complain that the
prosecution of his wife was overzealous or improper. It is
certainly true that, in the context of privacy, courts have been
leery of efforts to provide a special shield to the personal
information of public officials.
71
And in terms of defamation
claims, the First Amendment provides less protection, not
more, for public officials.
72
65
. Id. at *13
66
. Id. at *24.
67
. Id. at *7.
68
. Id.
69
. Id. at *30.
70
. Id. at *43.
71
. See, e.g., Sheehan v. Gregoire, 272 F. Supp. 2d 1135 (W.D. Wash.
2003).
72
. As the United States Supreme Court articulated, “The public-official
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206 PACE LAW REVIEW Vol. 35:1
But Moller’s conduct has a threatening and violent
overtone that transcends mere criticism of the professional
performance of a public servant. The black eye, the five-
pointed star, the undercurrent of sexual violence in one photo,
and the implicit threats towards K.C.’s family take this from a
professional level to one that is distinctly personal. And while
information such as the photo of K.C.’s house could be gathered
innocuously enough from internet resources like Google Earth,
one must remember that the evidence showed Moller drove by
K.C.’s house and photographed it. As for the source of the
photographs of K.C. and her family, it is true that he did not
contact her directly or “ping” her on social media—instead
choosing the still-creepy tactic of “Facebook stalking” her
cousins to gain access to the photos he used. It is doubtful
whether such an indirect approach would make K.C., or any
prosecutor for that matter, sleep better at night. As this case
demonstrates, in the age of Facebook and Twitter, those with a
real or perceived grievance against an officer of the court have
a potent weapon at their disposal. The wealth of information
online about virtually everyone, and the shadowy reaches of
the internet for cyberstalkers to prowl make prosecutors as
vulnerable to online harassment and intimidation as the
witnesses they strive to protect.
V. The Vulnerable Expert
Fact witnesses are not the only ones who can be caught in
the glare of social media and subjected to ridicule, harassment,
and threats online. Expert witnesses, particularly in cases
garnering considerable media attention, are vulnerable as well.
Consider the example of Alyce LaViolette, a counselor and
psychotherapist for battered women who served as a defense
expert witness in the Jodi Arias murder case in 2013. In the
highly-publicized Arizona trial, Arias admitted to killing her
lover Travis Alexander in 2008, but claimed that she did so in
self-defense after enduring abuse at Alexander’s hands.
LaViolette, who has authored books on domestic violence and
rule protects the paramount public interest in a free flow of information to
the people concerning public officials, their servants.” Garrison v. Louisiana,
379 U.S. 64, 77 (1964).
15
2014 #SNITCHES GET STITCHES 207
founded programs for battered women, testified that, in her
opinion, Arias had been controlled and abused physically,
sexually, and emotionally by Alexander.
73
From the first day she was on the stand, LaViolette faced a
foe every bit as vocal as and arguably more intimidating than
lead prosecutor Juan Martinez: the cybermob. Tweets and
other social media posts began almost immediately, urging
people to “show your disgust with LaViolette” and sharing the
expert’s office telephone number and website.
74
Other tweets
urged members of the public to write negative reviews of
LaViolette’s book on Amazon.com; soon more than 500 reviews
appeared, panning the book and referring to the expert witness
as a “fraud” and “a disgrace.”
75
In a review of LaViolette’s book
It Could Happen to Anyone: Why Battered Women Stay, one
person wrote “Shame on you Alyce!!! I hope Jodi gets the death
penalty and you watch your career flush down the toilet.”
76
During trial, others posted photos on Facebook of the 65-year-
old LaViolette out at dinner with members of Arias’ defense
team, implying a relationship that was too cozy.
Other attacks were directed at LaViolette as a
professional. Her Long Beach, California, office was deluged
with angry phone calls and emails, and at least one threat
prompted her colleagues to contact the police. ABIP Training
in Los Angeles, a group that provides training for abuse
counselors, received numerous requests to remove LaViolette
from its list of speakers.
77
The barrage of online attacks on her
personally and professionally even prompted LaViolette to visit
a hospital emergency room, seeking treatment for anxiety
attacks and heart palpitations.
78
While legal observers differ on whether such attacks meet
the legal definition of witness tampering, others point to such
targeting of an expert witness as an expansion of the trend
73
. Michael Kiefer, Arias Trial: Witness Feels Social Media’s Glare,
REPUBLIC (Apr. 11, 2013. 2:36 PM),
http://www.azcentral.com/community/mesa/articles/20130410arias-trial-
witness-feels-social-medias-glare.html.
74
. Id.
75
. Id.
76
. Id.
77
. Id.
78
. Id.
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208 PACE LAW REVIEW Vol. 35:1
toward online harassment. Sree Sreenivasay, chief digital
officer and journal professor at Columbia University, said “This
is a logical extension of witness intimidation, taken to an
extreme conclusion.”
79
Retired Maricopa County Superior
Court Judge Kenneth Fields was decidedly more blunt: “It’s the
electronic version of a lynch mob.”
80
In the digital age, in which so much of our lives are laid
bare online and in which those shreds of privacy that still exist
can be violated with the speed of a search engine, it would
appear that no one is safe from online intimidation—not even
expert witnesses.
VI. Responses, Legislative and Otherwise, to the Problem of
Online Witness Intimidation
Responses to the problem of online witness intimidation
have been essentially localized in nature. One option has been
to withhold witness lists from defendants, their counsel, and
the public until commencement of trial.
81
Florida’s Rules of
Criminal Procedure, for example, authorize partial restriction
of witness disclosures where circumstances pose “a substantial
risk” to a party. In April 2013, the City of Philadelphia
implemented a policy of holding preliminary trial proceedings
before a grand jury rather than in public in response to witness
intimidation concerns.
82
In Erie County, New York, District
Attorney Frank A. Sedita III said that the prevalence of social
media for witness harassment “demonstrates why criminals
should not be provided with information which reveals the
identity of prosecution witnesses until such time as there is a
trial.”
83
Another approach has been to ban cellphones, laptops,
79
. Id.
80
. Id.
81
. See generally Lisa Karsai, You Can’t Give My Name: Rethinking
Witness Anonymity in Light of the United States and British Experience, 79
TENN. L. REV. 29, 49 (2011) (for a discussion of witness privacy measures).
82
. Kevin McCorry, Philly Mom Seeking Justice for Slain Son Hindered
by Witness Who Won’t Talk, NEWSWORKS.ORG (Apr. 9, 2013),
http://www.newsworks.org/index.php/local/newsworks-tonight/53292-philly-
mom-seeking-justice-for-slain-son-hindered-by-witness-who-wont-talk-.
83
. See Staas, supra note 2.
17
2014 #SNITCHES GET STITCHES 209
tablets, and other electronic devices from the courtroom. In
2013, Cook County, Illinois—home to the highest homicide rate
of any large U.S. city and a place where gang intimidation has
been a persistent, widespread problem—enacted a ban on
cellphones, tablets, and any other electronic device used to
communicate or record. Chief Judge Timothy C. Evans said
the ban is intended
to provide safety within the courts, prevent
pictures from being taken with electronic devices
and help to protect innocent individuals and
those testifying in court. We want to do
everything we can to ensure that justice is
properly done by preserving the integrity of
testimony and maintaining court decorum. We
understand this may be an inconvenience to
some, but our primary goal is to protect those
inside our courthouses and perhaps save lives in
the process.
84
Joe Magats, deputy chief of criminal prosecutions for the
Cook County State’s Attorney’s Office, describes the measure
as a reaction to incidents where defendants’ family members
have taken pictures of witnesses, prosecutors, and even judges.
Social media, he says, “really ramps up the level of threats and
the level of discomfort the victim might feel because now it’s
out there in public . . . . [V]ictims should not be subject to that
kind of intimidation in the courthouse. It’s supposed to be a
place of sanctuary and security.”
85
Yet even Magats acknowledges that the ban on electronic
devices has its problems. “[F]or victims of domestic violence
who must come to the courthouse,” he says, “it will present
problems because many are in fear for their lives and safety
and need phones as lifelines.”
86
Marijane Placek, a public
defender in Chicago, calls this ban “a draconian solution to
what isn’t really a problem . . . [T]hese are public courtrooms
84
. See Davis, supra note 6.
85
. Id.
86
. Id.
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210 PACE LAW REVIEW Vol. 35:1
and anyone can come in. You can’t tell me someone isn’t going
to find a way to intimidate a witness if they want to.”
87
Such
bans also pose potential First Amendment issues, although the
subject of restrictions on cameras in the courtroom and how
that impinges journalistic freedom is an oft-discussed topic that
is beyond the scope of this article.
Witness protection and relocation programs are another
option, albeit a costly and largely impractical one. In an area
like Philadelphia alone, there have been more than 2,000
arrests for witness intimidation just within the last three
years.
88
Moreover, witness protection programs usually require
proof of imminent danger, a difficult burden to satisfy when
intimidation is essentially being crowdsourced through social
media. Evaluating the source of the threat and its imminence
can be a daunting task.
Another approach taken by law enforcement has been to
fight fire with fire—or Facebook with Facebook if you will.
Law enforcement nationally has been increasingly active on
social media in terms of tracking criminal activity and
developing leads (especially with gang activity) as well as
community outreach. For many departments, the anonymity of
the internet has proven useful in undercover efforts to gain
information on gang-related criminal enterprises and gang
efforts at witness intimidation.
89
Yet another avenue for response has been to seek
cooperation from the social networking sites themselves. Given
the privacy concerns that sites like Facebook and Twitter
publicly espouse, reaction from these sites has been mixed at
best. For example, Instagram has been fairly responsive to
requests to disable accounts or remove dangerous material in
witness intimidation cases. The site cooperated with
87
. Id.
88
. Maryclaire Dale, Philly DA: 2k Witness Intimidation Cases Since ’11,
WASH. TIMES (Feb. 26, 2014),
http://www.washingtontimes.com/news/2014/feb/26/philly-2k-witness-
intimidation-cases-since-2011/.
89
. See, e.g., Julie Edwards, Gangs in Anne Arundel Use Social Media to
Recruit and Intimidate, WASH. POST (Apr. 13, 2013),
http://www.washingtonpost.com/local/gangs-in-anne-arundel-use-social-
media-to-recruit-and-intimidate/2013/04/13/5fc64b64-97d1-11e2-b68f-
dc5c4b47e519_story.html.
19
2014 #SNITCHES GET STITCHES 211
Wilmington, Delaware law enforcement to remove an account
called “wilmington_snitches” aimed at exposing the identities
of people who cooperated with the police.
90
In another
instance, Instagram deactivated the “Rats215” account in
November 2013. The account, which had 7,900 followers by the
time it was shut down, had been outing witnesses of violent
crimes in Philadelphia. Since February 2013 alone, it had
posted photos, police statements, and testimony of at least 30
witnesses—in one instance posting about a shooting victim
whose case was handled by a secret grand jury.
91
An
Instagram spokesperson commented,
Instagram has a clear set of community
guidelines which make it clear what is and isn’t
allowed. This includes prohibiting content that
bullies or harasses. We encourage people who
come across content that they believe violates
our terms to report it to us using the built-in
reporting tools next to every photo or video on
Instagram.
92
Facebook, on the other hand, has been less receptive to
such requests from law enforcement, at least in one well-
publicized case in Philadelphia. Twenty-year-old Freddie
Henriquez was arrested December 17, 2012, and charged with
witness retaliation, witness intimidation, and terroristic
threats after allegedly using his Facebook page to solicit the
killing of a witness in a case involving illegal gun purchases.
93
The Philadelphia District Attorney’s office made numerous
90
. Ifeoluwa E. Afolayan, Intimidation Gone Digital Witness Victim
Intimidation in the Age of Social Media, CRIM. L. PRAC. (Nov. 26, 2013, 6:00
AM), http://wclcriminallawbrief.blogspot.com/2013/11/intimidation-gone-
digital-witness-and.html.
91
. William Bender, Rats215 Instagram Account Deactivated,
PHILLY.COM (Nov. 10, 2013), http://articles.philly.com/2013-11-
10/news/43889770_1_witness-intimidation-philadelphia-police-kaboni-
savage.
92
. Id.
93
. Joseph A. Slobodzian, Phila. D.A. Asks Facebook’s Zuckerberg to
Intervene and Take Down Page, PHILA. INQUIRER (Feb. 6, 2013),
http://articles.philly.com/2013-02-06/news/36767056_1_facebook-founder-
mark-zuckerberg-facebook-s-zuckerberg-facebook-account.
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requests to Facebook to take down the page (which labeled a
witness a “rat,” published her entire eight-page statement to
police, and urged third parties to “kill rats”), only to be rebuffed
repeatedly by Facebook’s Law Enforcement Response Team,
who maintained that the page’s content did not violate
Facebook policy.
94
Philadelphia D.A. Seth Williams called on
Facebook founder Mark Zuckerberg to be “a good corporate
citizen” and remove Henriquez’s page and deactivate his
Facebook account.
95
Facebook’s response was to issue a generic
statement that “Facebook works with law enforcement to the
extent required by law and where appropriate to ensure the
safety of Facebook users. We work very hard to be a good
partner to law enforcement, and any assertion to the contrary
is false.”
96
Finally, legislative efforts to address witness intimidation
through social media have also sprung up. In May 2014,
Delaware’s House unanimously passed a bill (the Senate
version of which passed the previous month) aimed at
toughening penalties for violations of the state’s existing
witness protection law. It reclassifies the crimes as a Class D
felony for intimidation and a Class B felony for aggravated
intimidation. While the bill is silent as to social media, media
reports indicate that it was inspired by Delaware’s problems
with witness intimidation efforts on Instagram.
97
For
embattled Philadelphia, measures have included efforts to
allocate more funds for witness protection programs,
98
a
proposal to make witness intimidation a federal crime in all
cases,
99
and a ban on cellphones and electronic devices in
94
. Id.
95
. Id.
96
. Id.
97
. Jon Offredo, Witness Intimidation Bill Awaits Martell’s Signature,
DEL. ONLINE (May 3, 2014, 10:52 PM),
http://www.delawareonline.com/story/news/local/2014/05/03/witness-
intimidation-bill-awaits-markells-signature/8674899/.
98
. Toim MacDonald, State Study: Philly Needs More Funds to Fight
Witness Intimidation, NEWSWORKS (Jan. 8, 2013),
http://www.newsworks.org/index.php/local/philadelphia/49315-state-study-
philly-needs-more-funds-to-fight-witness-intimidation.
99
. Joseph A. Slobodzian, Casey, Williams Introduce Bill to Make
Witness Intimidation a Federal Crime, PHILA. INQUIRER (Feb. 14, 2012),
http://articles.philly.com/2012-02-14/news/31059017_1_witness-intimidation-
21
2014 #SNITCHES GET STITCHES 213
courthouses.
100
And like Delaware, the Pennsylvania
Legislature has crafted a bill to address social media’s impact
on witness intimidation. Pennsylvania Senate Bill 1263, the
Website Witness and Victim Protection Act, would amend the
state’s existing witness intimidation criminal statute.
101
The
elements consist of: (1) an electronic publication (2) of either an
individual’s or victim’s name (3) “as it relates to a criminal
investigation” (4) “with intent to or with the knowledge that
the person’s conduct will obstruct, impede, impinge, prevent or
interfere with the administration of criminal justice.” The bill,
which makes such witness intimidation a second-degree felony
punishable by one to ten years in prison or a fine of up to
$25,000, is currently being evaluated by the Senate’s Judiciary
Committee.
The Website Witness and Victim Protection Act is an
example of how the legal system can respond to the challenges
of harassers using new technology. While reminiscent of
earlier witness intimidation laws, its broad definition of
“internet” provides flexibility for continuing to address other
platforms beyond Facebook, YouTube, Twitter, and Instagram.
In short, it represents at least an effort at helping the law keep
pace with technology.
VII. Conclusion
According to the latest Pew Center research on the
Internet, 25% of Americans report being attacked or treated
unkindly online.
102
While the Internet in general and social
media platforms in particular have been a source of great good
for society, they have also been put to more nefarious purposes,
such as witness harassment and intimidation as this article
demonstrates. More information than ever before is more
prison-terms-federal-crime.
100
. Kevin McCorry, Could Cell Phone Ban in Philly Courts Lessen
Witness Intimidation?, NEWSWORKS (Apr. 10, 2013),
http://www.newsworks.org/index.php/local/newsworks-tonight/53348-could-
cell-phone-ban-in-philly-courts-lessen-witness-intimidation.
101
. 18 PA. CONS. STAT. § 4952 (2014).
102
. Susanna Fox and Lee Rainie, The Web at 25 in the U.S., PEW RES.
INTERNET PROJECT (Feb. 27, 2014),
http://www.pewinternet.org/2014/02/27/the-web-at-25-in-the-u-s/.
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214 PACE LAW REVIEW Vol. 35:1
accessible than ever imagined, at the speed of a search engine.
Consequently, prosecutors face more complex challenges than
ever before when it comes to protecting witnesses. While the
struggle to address this new technological wrinkle to an age-old
problem continues through updated witness intimidation
statutes, perhaps the most important weapon for combating
witness intimidation through technology is education. When
the public, law enforcement, prosecutors, and judges are better
educated about this problem, they can respond accordingly.
One case in point comes from Chicago, where a defendant out
on bond on an attempted murder charge took a photo of one of
the witnesses and posted it to Instagram, along with the
caption, “[t]hese people are getting ready to take me down.”
The judge was promptly informed, and when the defendant
returned to court for a hearing, his bail was revoked. On the
harasser side, an informal survey of some “snitch sites” reveals
the mistaken belief on the part of many laypersons that they
cannot be liable for witness intimidation if they are not parties
to the pending criminal case.
103
Education—about the problem,
its consequences, and potential solutions—may be the most
important tool of all.
103
. See, e.g., #rats215, supra note 11; #killrats, INSTAGRAM,
http://web.stagram.com/tag/killrats/.
23
