Gamer Justin Carter’s Attorney Takes Us Inside Contentious Arrest
Carter’s ‘Extraordinarily High’ $500,000 Bond
Carter was bound over to the Comal County Jail on March 20. He was appointed a public defender and his bond was set at $250,000.
As Flanary noted, all defendants in Texas have a right to a bail, with the defendant putting up the money as a guarantee that he or she will return for trial. Those bails have to be “reasonable,” he said; they’re usually affected by whether the court deems a person to be a flight risk or a danger to others. ail are often handled differently by different counties: in the case of Comal County, Carter needed to pay 10 percent of the bail, or $25,000, to be released, with a bail bondsman guaranteeing the rest. He would be responsible for the full $250,000 bail if he failed to return at court-appointed times and dates, such as hearings.
The amount of Carter’s bail may seem unusual to outsiders, and in fact, a judge raised it even higher in April, doubling it to $500,000. Flanary said that amount is unreasonable, and brings to bear some serious constitutional issues.
“They set a $250,000 bond for him at that time [Carter's arrest],” Flanary explained. “Even that is extraordinarily high. But I suppose the law enforcement would say ‘Well, we didn’t know what we had on our hands, we wanted to arrest him despite the fact that our proof is not very good, we wanted to investigate immediately to ensure the safety of our community, and we set the bail so very high because if it turns out that we had on our hands a school shooter, or a terrorist, or a mass murderer, then we would want to keep him in jail.’”
The $50,000 required to get Carter out of jail was more than the man’s family can afford, Flanary said. The family set up a website at freejustincarter.org to take donations and spread information about the case. According to MSNBC, the Austin-based company Victory Ink also donated the proceeds from sales of its “Free Justin Carter” t-shirts to the family.
It finally took the anonymous $500,000 donation to make Justin’s bail.
“[Carter's family] is indigent, they’re poor. And even if they were middle class, I don’t think they could afford to post a $500,000 bond because it would require a 10 percent deposit, or $50,000, and I don’t know anyone who has $50,000 to get someone out of jail,” Flanary said the day before Carter’s bond was posted.
“The thing is, the normal bail for someone facing murder charges, facing life in prison, it’s generally $100,000. This is a third-degree felony, he could get up to 15 years. Most of the time those bonds are around $10,000.”
According to Carter’s family and his attorneys, the young man’s time in Comal County jail was, in a word, brutal. Carter’s parents have said that other inmates beat Carter several times, and he reportedly was placed on suicide watch — which means he was placed in solitary confinement and his clothes and other items were removed to prevent him hurting himself. Carter’s father also said he was forced to go nude. Typically, prisoners and others placed on suicide watch wear padded gowns that make it harder for them to hurt themselves, such as these.
The defense has filed a number of motions in Carter’s case since he was released in June, citing many various instances in which they allege police were incorrect in their assessments of the situation. In the case of the interview by New Bruanfels police in March, the defense even contends police violated Carter’s constitutional rights.
According to court documents, Carter was interviewed by New Braunfels Police Department Det. Joe Tovar on March 19, when Carter would still have been interred at the Travis County Jail, after Tovar followed up on the threat information NBPD received on March 6. During that interview, Tovar wrote in court documents that Carter admitted to posting the comment in question on Facebook, and that admission was noted on his Comal County arrest warrant for the terroristic threat charge.
A motion to suppress those statements filed by Carter’s attorney at the time, Ivan Friedman, alleged the statements were gathered without Carter being informed of his rights to an attorney, and that they were “coerced and enticed” from Carter while he was “substantially deprived of freedom by conduct of the law enforcement officers….”
Police searched Carter’s home and seized several items, Flanary said. The search warrant in the case cites a number of electronics and computer-related items as those that were seized — namely, Carter’s computer, a number of discs, hard drives and other storage media, and a modem. The warrant did not include any mention of weapons or other attack-related items, either being part of the police search or as being found in Carter’s home.
“They search his house, the seize his computer, they seize his CDs and DVDs, they seize a router, they seize a flash drive, they seize his mouse and his keyboard, they seize anything related to electronic technology,” Flanary said. “They do not find a weapon, a gun, a knife, a manifesto on killing people. They don’t find anything linking him to terrorism, or jihad, or school shootings, or mass murder, or anything to suggest that he’s anything other than a kid that likes to play video games. And so then he continues to languish in the jail.”
A Question of Free Speech
Though the terroristic threat law covers a kind of speech, Carter’s lawyers contend that the kind of speech he was engaging in on Facebook is protected by the First Amendment.
Flanary said the Internet operates in something of a gray area when it comes to free speech because there haven’t been many laws covering how people use it and interact with one another on it. But most speech is protected by the U.S. Constitution — it’s only when a person is making statements that are more pointed and specific that they’re deemed as threats, he said. Flanary and Van Brunt contend that Carter’s comments on Facebook fall into that protected category, largely because their “intent” doesn’t match up with what the terroristic threat law dictates.
“If the government is going to say ‘we’re threatened by this speech,’ there has to be a ‘clear and present danger,’” Flanary said, citing the 1969 U.S. Supreme Court case Brandenburg vs. Ohio. “You can advocate for a new government, you can even advocate for violent rebellion. But what you can’t do is talk about specific things. ‘On such and such day, I’m going to call on everyone to kill so-and-so.’ You can talk about your disdain for the government, you can talk about your disdain for other individuals, you can be argumentative, and the reality is our law enforcement has gotten that picture since 1969. They know they can’t arrest [Ku Klux] Klan members, they know they can’t lock people up for their speech. The problem is nowdays, with the Internet and the ability of people to say everything online, everything is captured, captured in a way that was never captured before.”
From the defense’s viewpoint, police should have recognized that Carter’s comment lacked the intent to cause fear or disrupt government institutions that’s mentioned in the terroristic threats law.
“Law enforcement in this case … didn’t use their discretion … to notice ‘Hey, um, this isn’t real, this isn’t an actual threat,’” Flanary said. “They’re so petrified by the world we live in, post-Sandy Hook, post-9-11, they don’t want to be the officer who has to say that something happened on their watch. And I don’t blame them, obviously they don’t want to have a school shooting in their backyard. I get that. The reality is that it’s okay to investigate, it’s not okay to continue to prosecute and arrest when it’s clear that it’s sarcasm.
“He [Carter] was not talking in public, he was not talking to [the woman who reported the comment]. He wasn’t trying to make anyone afraid, he was intending to be sarcastic and say something distasteful, and offensive. His speech is fundamentally protected by the First Amendment. The First Amendment protects the space because he’s not conveying a real threat and there’s no clear and present danger, not anyone is in danger.”