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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 17, 2009
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Topic category:  Government/Politics

Will Ignorance Save James O'Keefe and Hannah Giles from Felony Convictions?

In my 1998 article I pointed out something very relevant here: "It is also worth noting that the Maryland Wiretap Law is not violated unless the ex parte recording is done willfully--that is, with intent or reckless disregard of a known legal duty. And a Maryland appellate court stated just three years ago that it is 'totally incorrect' to say that ignorance of the wiretap statute is no excuse.

ACORN sued ACORN whistleblower Anita MonCrief (via ACORN affiliate Project Vote) and is threatening to sue intrepid investigators James O'Keefe and Hannah Giles, whose videos back the claim of Ms. MonCrief, Michelle Malkin and others that ACORN is a criminal enterprise.

Ironically, James O’Keefe and Hannah Giles are under investigation for felonious conduct in investigating ACORN to expose it as a criminal enterprise.

ACORN is outraged and threatening its own legal action.

Statement from Bertha Lewis, Chief Organizer, ACORN Regarding Recent News Reports (September 12, 2009)

"The relentless attacks on ACORN's members, its staff and the policies andpositions we promote are unprecedented. An international entertainment conglomerate, disguising itself as a 'news' agency (Fox), has expended millions, if not tens of millions of dollars, in their attempt to destroy the largest community organization of Black, Latino, poor and working families in the country. It is not coincidence that the most recent attacks have been launched just when health care reform is gaining traction. It is clear they've had these tapes for months.

"We are their Willy Horton for 2009. We are the boogeyman for the right-wing and its echo chambers. If ACORN did not exist, the right-wing would have needed to create us in order to achieve their agenda, their missions, their ideal, retrograde America. This recent scam, which was attempted in San Diego, Los Angeles, Miami, New York, Philadelphia to name a few places, had failed for months before the results we've all recently seen. I am appalled and angry; I cannot and I will not defend the actions of the workers depicted in the video, who have since been terminated. But it is clear that the videos are doctored, edited, and in no way the result of the fabricated story being portrayed by conservative activist 'filmmaker' O'Keefe and his partner in crime. And, in fact, a crime it was - our lawyers believe a felony - and we will be taking legal action against Fox and their co-conspirators."

ACORN is hardly credible, but there IS a question as to whether the videotaping was felonious.

Ms. Lewis continued, hopefully, trying to change the subject:

"We will not be intimidated by this international conglomerate, which has made as its mission the destruction of our organization. ACORN members are committed to the empowerment of their communities - Black, Latino, poor, and working families – at the deepest level. We are an organization committed to halting the foreclosure crisis and keeping people in their homes. We are an organization committed to ensuring quality, affordable health care for every American. We are an organization that will not be stopped in our commitment to our members and our communities which has included:

  • Helping hundreds of thousands of African-American and Latino voters register to vote and get to the polls in recent years;

  • Preparing, since 2004, approximately 150,000 free tax returns totaling $190 million in refunds and increased earned income tax credit participation;

  • Providing effective foreclosure prevention advocacy saving thousands of American families from losing their homes to foreclosure.
Believe it or not, the Baltimore State Attorney's Office is focusing on James O'Keefe and Hannah Giles.

STATEMENT OF STATE’S ATTORNEYS OFFICE FOR BALTIMORE CITY RELATIVE TO THE ALLEGED BALTIMORE ACORN INCIDENT

"Baltimore, MD – September 11, 2009 – We have received inquiries from citizens and the media asking whether the Baltimore City State’s Attorneys Office would initiate a criminal investigation for acts allegedly committed at ACORN offices located in Baltimore. The only information received in reference to this alleged criminal behavior was a YouTube video. Upon review by this office, the video appears to be incomplete. In addition, the audio portion could possibly have been obtained in violation of Maryland Law, Annotated Code of Maryland Courts and Judicial Proceedings Article §10-402, which requires two party consent.

"If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years."

Maryland values privacy highly and criminalizes willful interception of “any wire, oral, or electronic communication.”

Fortunately, if they were ignorant of the applicable Maryland law, their conduct was NOT criminal.

But the conversation they recorded in Baltimore (very apparently without the knowledge of the recorded ACORN employees) IS a conversation that could be a predicate for criminal liability.

See Maryland Code’s Courts and Judicial Proceedings chapter, title 10 (Evidence), subtitle 4 (Wiretapping and Electronic Surveillance).

Section 10-402(a) makes it a crime (unless specified exceptions apply) “for any person to:

(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or

(3) Willfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle."

Section 10-402(b) prescribes the possible penalty: "imprisonment for not more than 5 years or a fine of not more than $10,000, or both."

Oral communication is defined in Section 10-401 as "any conversation or words spoken to or by any person in private conversation," except "any electronic communication."

"Interception" is defined there as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device."That seems to include surreptitious videotaping of a conversation, even by a party to the conversation, unless the court interprets "interception" as something that only a non-party to the conversation can do.

In football, neither the quarterback nor a receiver can intercept a pass, so perhaps parties to a conversation should be held to be incapable of "interception."

For the sakes of James O'Keefe and Hannah Giles, reading that into the statute would be wonderful, but that may not have been the legislative intention.

ACORN obviously is pleased that Section 10-410(a) provides for civil liability if there is a criminal violation:

"Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:

(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(2) Punitive damages; and

(3) A reasonable attorney's fee and other litigation costs reasonably incurred."

It seems very clear that Maryland only permits officially sanctioned interception.

Section 10-408 authorizes applications for ex parte orders authorizing interception.

But James O'Keefe and Hannah Giles were not even authorized to apply to a court for permission, if they were inclined to do so.

It is lawful only for "an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence."

Section 10-406 states: "The Attorney General, State Prosecutor, or any State's Attorney may apply to a judge of competent jurisdiction, and the judge...may grant an order authorizing the interception of wire, oral, or electronic communications by investigative or law enforcement officers when the interception may provide or has provided evidence of the commission of" specified crimes.

Public spirited citizens may not apply and thus should be ignorant of the Maryland law if they are determined to obtain audio proof of crimes and corruption!

So let's hope that James O'Keefe and Hannah Giles were ignorant of that Maryland law!

I looked into Maryland wiretap law in 1998, when I wrote an article for Legal Times arguing that Linda Tripp had NOT violated Maryland law because Monica Lewinsky was in DC when then Marylander Tripp surreptitiously recorded their telephone conversations.

WBAL: "The Maryland state prosecutor’s office went after Linda Tripp in the 1990s on two wiretap charges. Tripp was accused of illegally taping a phone conversation with Monica Lewinski [sic] about her relationship with then-President Bill Clinton and disclosing the conversation to Newsweek. Prosecutors decided to drop the case when Lewinski’s [sic] testimony was suppressed."

I think they dropped it because they would have lost, because the law would not have been construed to protect a non-Marylander (Lewinsky) who could have legally recorded the same conversation herself in DC if she had wanted to do so. The rules of statutory construction would have protected Tripp under those circumstances.

In my 1998 article I pointed out something very relevant here: "It is also worth noting that the Maryland Wiretap Law is not violated unless the ex parte recording is done willfully--that is, with intent or reckless disregard of a known legal duty. And a Maryland appellate court stated just three years ago that it is 'totally incorrect' to sat that ignorance of the wiretap statute is no excuse. Hawes v. Carberry, 103 Md. App. 214, 653 A.2d 479 (1995). People are not presumed to know that particular law.

If prosecuted in what would be an abuse of prosecutorial discretion in the circumstances, the intrepid young investigators may plead ignorance of law.In my 1998 article I pointed out something very relevant here: "It is also worth noting that the Maryland Wiretap Law is not violated unless the ex parte recording is done willfully--that is, with intent or reckless disregard of a known legal duty. And a Maryland appellate court stated just three years ago that it is 'totally incorrect' to say that ignorance of the wiretap statute is no excuse.

That seems plausible--and fitting--to me.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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