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Friday, March 27, 2009

Courts - "Students Sue Prosecutor in Cellphone Photos Case "

The NY Times has had stories two days in a row now on “'sexting': the increasingly popular phenomenon of nude or seminude photos sent over wireless phones."

Some quotes from yesterday's story, by Sean D. Hamill:

“They said they had a full-bodied naked picture of me, but I knew I’d never had any naked picture taken of me,” the student, Marissa Miller, 15, recalled of the Feb. 10 telephone call to her mother as the two were having lunch together at Tunkhannock Area High School. Marissa is a freshman at the school, where her mother, MaryJo, works with special education students.

The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.

Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.

It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick. * * *

“Prosecutors should not be using a nuclear-weapon-type charge like child pornography against kids who have no criminal intent and are merely doing stupid things,” said Witold J. Walczak, a lawyer with the American Civil Liberties Union of Pennsylvania, which represents the families. * * *

In large part because sexting cases are so new, local communities across the country vary greatly in their handling, from filing child pornography charges against the teenagers involved to alerting parents and letting them deal with it.

Lee Tien, a senior staff lawyer for the Electronic Frontier Foundation, a nonprofit group in San Francisco that studies technology issues, said such cases also raise thorny legal issues around the searching of students’ cellphones, many of which are seized when they are used during class.

“If they confiscate the phone, that’s reasonable to hold it for the day and return it,” Mr. Tien said. “But there’s a serious question of whether that justifies going through the cellphone.”

The lawsuit filed Wednesday does not address those issues, or the role Tunkhannock Area High School might have played in the investigation, but Mr. Walczak said the A.C.L.U. was “assessing possible legal action against the school.”

“Those cellphones contain highly personal information protected by the Fourth Amendment,” he said.

Today's story, by Hamill and Liz Robbins, reports:
SCRANTON, Pa. — A federal judge said at a hearing on Thursday that “serious constitutional issues” were raised in a lawsuit filed by three teenage girls and their mothers against a county district attorney who threatened to arrest the students on pornography charges after seminude photographs of them appeared on other students’ cellphones.

“It seems like the children seemed to be the victims and the perpetrators here,” the judge, James M. Munley, told a lawyer for the district attorney, George P. Skumanick of Wyoming County. “How does that make sense?”

The lawyer, A. James Hailstone, said state law “doesn’t distinguish between who took the picture and who was in it.”

Judge Munley, of the Federal District Court for the Middle District of Pennsylvania, said he would not rule until early next week on a request by a lawyer for the girls and their mothers for a temporary restraining order forbidding Mr. Skumanick from filing the charges, which they contend are retaliation for the parents asserting their First and Fourteenth Amendment rights to oppose his deal.

Posted by Marcia Oddi on March 27, 2009 08:59 AM
Posted to Courts in general