A Young Man's Violent Threat on Facebook Lands Him in Jail, and Limbo

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"The state tells us Facebook didn't give it to them," Flanary says. He's unsuccessfully tried to find "Hannah Love," the only other profile included in the cell-phone screenshot; at this point, it's still unclear whether "Hannah Love" is the anonymous Canadian tipster.

Flanary believes it's paramount that if someone is criminally charged on the basis of his words, a jury needs to see all the words. In this case, that includes whatever comment precipitated Carter's hyperbolic rant.

"If you understand the English language, when someone says, 'I'm fucked in the head alright comma,' that is a preparatory phrase...in response to a previous phrase. Presumably, someone [said] to him, 'You are fucked in the head,' or words similar to that."

But Flanary says that Bates presented a truncated version of the comments to grand jurors. They did not see "I'm fucked in the head alright, I think I'ma" before "shoot up a kindergarten." If this sounds like the nitpicking of a defense attorney, that's precisely the point.

"When you're dealing with speech," Flanary says, "...it is absolutely, 100 percent important that the words that you are charging people with are actually the words that they said and not some misrepresentation. And that's what...this prosecutor did, is misrepresent to the grand jury what he said."

Still, there's an even bigger problem, according to Flanary: His client's comments are not a "terroristic threat" as defined by the Texas Penal Code.

According to the indictment, Carter's statement met two of the necessities required by state law: His words were uttered "with the intent to place the public or a substantial group of the public in fear of serious bodily injury," or uttered "with the intent to cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service."

But Flanary likens the Facebook thread at issue to a fight on the playground. Just a couple of people spouting off. Citing two key federal court rulings, Flanary says, "There must be a clear and present danger, and there must be a true threat. And if you don't have a true threat, then the First Amendment protects your speech. Plain and simple."

Flanary also accuses law enforcement of coercing a confession from Carter while he was in jail.

Evidently, law enforcement personnel were unable to pinpoint legal jurisdiction as swiftly as they were able to make an actual arrest: For some reason, it wasn't until March 19, 2013, more than a month after his arrest, that Carter was questioned by a New Braunfels detective. He was still in the Travis County Jail, unindicted.

Although Carter had been assigned a public defender, she wasn't present during the questioning — and wasn't notified about it — and, according to Flanary, detective Joe Robles implied that Carter could go free if he would just admit to being the same Justin Carter who posted the comments.

"Once one has a lawyer, it is unethical for the prosecutors to send any part of their team — to include detectives — to speak with someone who is represented," Flanary says.

"Never mind the unethical implication and the downright shady nature of the action; when an officer goes and talks to a man who's in jail [and] tells them, 'Waive your right to an attorney because we're letting you go,' or makes that implication, then that waiver is not given voluntarily anyway — and so it's like coercing a confession, from a legal standpoint...It's like, 'Hey, if you talk to us, we'll let you go, but if you don't talk to us, you can sit here and rot.'"

Frightened and naive, Carter copped to the comment. Instead of being released, he had only managed to transfer himself to another jail and double his bond. Emboldened by the confession, Comal County authorities moved him to their jurisdiction and secured an indictment on April 10.

"Then he sits in jail for another two months," Flanary says. "He has a court-­appointed lawyer in Comal County. And this court-appointed lawyer, as far as we can tell, did nothing other than get an offer from the state. And the prosecutors offered him eight years in prison."

The Comal County District Attorney's Office did not intend for Carter to suffer what happened next, Flanary says, but it was reasonably foreseeable: He was sexually assaulted.

"He definitely was not kept safe, " Flanary says. "And that's why it's not good to have innocent 18-year-old [guys] in jail with very, very dangerous people."

Though Carter's family had already gathered thousands of signatures for an online petition calling for a judicial review of the case, created a "Save Justin Carter" Facebook community page to raise interest in the case and sold T-shirts to raise money to cover his bail, the goal was beyond their financial reach. He was stranded in jail.

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Contributor Craig Malisow covers crooks, quacks, animal abusers, elected officials, and other assorted people for the Houston Press.
Contact: Craig Malisow