The charge against Justin Carter, the New Braunfels teen accused of making a terroristic threat on Facebook, should be dropped because a detective lied in an affidavit, Carter's lawyer argued in Comal County District Court Tuesday.
Carter made international headlines when Carter, then 18, was charged in April 2013 for allegedly writing "I think I'ma shoot up a kindergarten" during a Facebook conversation, landing him in jail on a $500,000 bond.
But attorney Don Flanary claimed in a motion that Austin detective Mac McKelvey misled a magistrate judge in order to obtain an arrest warrant by excluding the other half of the conversation. This led the judge to believe "that Justin Carter's alleged statement was not part of a discussion, but rather was an un-elicited statement meant to stand on its own," according to the motion.
The comment at issue is one of four between Carter and someone using the profile name "Hannah Love." The complete thread is not available on Facebook, and prosecutors' key piece of evidence is a cell-phone screenshot of those four comments.
Flanary told us in February that when Carter was originally assigned a public defender, prosecutors offered an eight-year prison sentence if he pleaded guilty -- an offer that was substantially reduced to ten years' probation when Flanary stepped in. (Carter had spent six months in jail before an anonymous donor posted his bond. Flanary claims that Carter was sexually assaulted in jail).
Flanary also challenged McKelvey's contention that police matched the photo on Justin Carter's driver's license to the Carter's Facebook profile picture.
Yet according to the motion, "The photo on Justin Carter's Facebook posting does not contain a picture of any person; it is a drawing of a cartoon girl with pink hair."
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Since McKelvey intentionally or recklessly made false statements in the affidavit, any evidence collected pursuant to the arrest warrant should be suppressed, according to the motion.
Flanary also argued that the statute used to charge Carter is unconstitutional, and that his comment was protected by the First Amendment.
"The statement that Mr. Carter is alleged to have posted on Facebook was merely hyperbole and does not constitute a 'true threat,'" the motion claims.
We reached out to the Comal County District Attorney's Office for comment and will update if we hear back.