Iron County Prosecutors Drop Ag-gag Charges, Law Examined

Utah ag-gag charges dropped

Photo: Matthias M/Wikimedia Commons

Four animal activists who were allegedly on private property at a hog farm in Iron County in September have been released from charges of Utah’s agricultural interference law, also known as an ag-gag law. The activists will still face criminal trespass charges, and many are wondering when it comes to ag-gag laws, why trespassing charges aren’t sufficient and exactly who these other laws are protecting. In the case of many animal rights activists, they believe it’s not necessarily who is being protected but a certain type of misbehavior that is being protected.

Ag-gag in Iron County

The four activists from California and Maryland were members of a group known as the Farm Animal Rights Movement (FARM), and the hog farm was Circle Four Farms, a part of Murphy-Brown LLC, the livestock production subsidiary of the world’s largest pork producer. According to a report from the Salt Lake Tribune, the attorney for the activists, T. Matthew Phillips, stated that the four wanted to document the pigs’ journey from the farm to a California slaughterhouse.

According to the FARM website, they are a nonprofit group that is “working to end the use of animals as food through public education and grassroots activism.” While they claim that most of their programs are aimed at engaging “likely target audiences … and [nudging] them along the vegan path,” they also state that “[o]ccasionally, we seek to capture media attention through dramatic displays.”

Attorney Phillips says the Circle Four Farms incident was not one of these examples of “dramatic display.” In fact, he states that the four were actually on a public roadway and were only capturing images of farm buildings, not of the workers or animals.

However, the wording of Utah’s ag-gag law 76-6-112 states that a person is guilty of agricultural interference if they knowingly or intentionally record “an image of, or sound from, the agricultural operation” without the consent of the owner. The law specifies several acts that are prohibited, including leaving a recording a device on the premises, obtaining a job under false pretenses to record activity, recording activity as a regular employee of the facility, or trespassing on private property to get such images or sounds.

Given the fact that Iron County prosecutors are still charging the four activists with criminal trespass, they must differ with Phillips, however, Circle Four Farms stated that they didn’t wish to pursue the agricultural interference charges.

Ag-gag Under the Microscope and Put on Trial

Utah Rep. John G. Mathis (R-Vernal) sponsored HB 187 in 2012. The bill went through two revisions before being ultimately approved. According to an article in Deseret News, Mathis claimed the reason for sponsoring this bill was that he wanted to put an end to “animal-rights terrorists” out to destroy the agricultural industry. He was quoted as saying that animal protection groups such as FARM and People for the Ethical Treatment of Animals (PETA) were using these investigations as propaganda to promote their own organizations, especially in fundraising efforts.

Opposition to the ag-gag laws—which are currently on the books in five other states—say these laws are violations of the First Amendment and Fourteenth Amendment to the U.S. Constitution. They state that the First Amendment protecting free speech and press has specifically led to reform in the food industry in the past, citing such books as Upton Sinclair’s “The Jungle” which was pivotal in leading the government to pass the Meat Inspection Act and the Pure Food and Drug Act of 1906.

If convicted of criminal trespass, a class B misdemeanor per Utah Criminal Code 76-6-206, the four activists could face up to six months in jail and a fine of up to $1,000. Of the six states with ag-gag laws, only one other person has been charged with violation of the law. In February of 2013, Amy Meyer was charged for videotaping the operations at Dale Smith Meatpacking Company in Draper. However, charges against her were also dropped, with the reasoning cited as either public outcry or the fact that Meyer’s video footage showed that she was on public property at the time of her filming.

On a larger scale, in July of 2013, two national nonprofit organizations, the Animal Legal Defense Fund (ALDF) and PETA, filed a lawsuit against the State of Utah challenging the ag-gag law for violating the First and Fourteenth Amendments. Attorneys for the state attempted to argue that the case should be thrown out, however, according to an August 2014 article in the Salt Lake Tribune, U.S. District Judge Robert Shelby has refused.

Even though he didn’t dismiss the case, Shelby has said that at this point, the plaintiffs have failed to show how the statute has resulted in past injury as no one is currently being prosecuted under the statute or how it will cause future injury, but the case will still have its proverbial day in court which means it will have to stand up to further public scrutiny.

Fingerprint Evidence Questioned in Utah Appeals Case

Fingerprint Evidence in Utah Appeals Case

Photo: Alan Levine

A 2009 case involving Eric D. Woodard recently found its way to the Second District Court of Appeals. The case originally dealt with a search of Woodard’s residence that turned up various drugs and resulted in the conviction of Woodard for possession of a controlled substance with intent to distribute, a second degree felony, and possession of marijuana and drug paraphernalia, class B misdemeanors. In July of this year, Woodard appealed the conviction, questioning how the fingerprint evidence was admitted as well as the State’s expert witness.

The Original Case Against Woodard

In 2009, North Ogden police responded to a noise complaint at Woodard’s residence. Having already obtained a warrant to search his home, the officers detained Woodard outside while they attempted to search the residence. They ran into difficulties with house guests who “weren’t cooperating with the efforts to search the home.” Finally, police forcibly entered and began to search the house.

During the search, officers found a small bag of marijuana, a digital scale and cigarette rolling papers which Woodard admitted belonged to him. Officers also found a bag of 478 pills referred to as “Obama ecstasy” [an ecstasy mimic containing benzylpiperazine, a Schedule I controlled substance, shaped and stamped with the head of President Barack Obama]. Woodard denied knowing about the pills. However, fingerprint evidence on the bag of pills resulted in his conviction of possession of a controlled substance with intent to distribute. It is this charge that Woodard was appealing.

Utah Rules of Evidence Used to Question Fingerprint Evidence in Appeal

Utah criminal proceedings are governed by Rules of Evidence which “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” When it came to Woodard’s appeal, he based his case on two of these Utah Rules of Evidence.

The first claim made by Woodard was that the fingerprint evidence admitted in his case lacked foundation, addressing Rule 901 which requires that the proponent of an item of evidence authenticates or identifies it with “evidence sufficient to support a finding that the item is what the proponent claims it is.” The rule includes a list of means by which authentication can be achieved.

In Woodard’s original case, the State provided a comparison of a photo of a fingerprint taken from the bag of “Obama ecstasy” with Woodard’s ten-print card [a fingerprint card taken when one is booked into jail]. When the defendant’s counsel asked the crime scene investigator, Paul Rimmasch, which photo was used as a basis for comparison with the ten-print card, Rimmasch was unable to say at that time exactly which one he had retrieved from a database known as the Digital Image Management System (DIMS).

However, given the fact that the State had the crime scene investigator, Sandra Grogan, testify to her part in taking the photos and uploading them to DIMS, as well as Woodard’s identifying information on the ten-print card–including the name of the jail, date and time of collection, and personal identifying information of Woodard such as social security number and date of birth–the Court of Appeals found that the fingerprint evidence was properly authenticated under rule 901.

The next Utah Rule of Evidence that Woodard attempted to use to his advantage was rule 702, which “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony” further stating that “the principles of methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to fact.”

For Woodard’s appeal, he stated the procedure discussed by Rimmasch for fingerprint evidence verification, a four-step procedure known as ACE-V, was not sufficiently reliable. He brought up the fact that the National Academy of Sciences and its operational arm, the National Research Council, have “noted a lack of empirical validation of fingerprint evidence and specifically questioned the efficacy of the ACE-V methodology.”

Rule 702 states that “judges should approach expert testimony with ‘rational skepticism.’” However, the Court of Appeals cited another part of rule 702 which states that the degree of scrutiny “is not so rigorous as to be satisfied only by scientific or other specialized principles of methods that are free of controversy” and that it “requires only a basic foundational showing of indicia [signs or indications] of reliability for the testimony to be admissible, not that the opinion is indisputably correct.”

Woodard also addressed the final step of ACE-V, which is “verification,” during which, according to Rimmasch’s testimony, “another examiner goes through the same process [as the original examiner] and looks at the print again.” Woodard stated that the State should have been required to produce this second examiner to verify the fingerprint evidence. However, the Court of Appeals rejected this argument as well based on the idea that the lack of the second verifier wouldn’t affect the reliability of Rimmasch as an expert.

The Importance of a Good Defense

The Court of Appeals went on to point out how Woodard was somewhat defeated by his own defense counsel. According to court documents, “Defendant’s trial counsel had full opportunity to challenge the ACE-V methodology and Rimmasch’s credibility on cross-examination.” This could have included questioning Rimmasch on who performed the fingerprint evidence verification and when it was done, calling that person as a witness, or calling their own expert witness to testify about the process in this particular case or problems with ACE-V in general. Rule 702 does allow for “contrary and inconsistent opinions” which leave it up to the jury to decide. However, Woodard’s counsel did none of this in an attempt to give Rimmasch’s testimony less weight. Ultimately Woodard lost the case.

This final point goes to show the importance of an experienced criminal defense attorney who understands the Utah Rules of Evidence and how they might apply to fingerprint evidence. If you or someone you know is being charged with a crime and fingerprint evidence is being used as part of the prosecution’s case, make sure you contact a criminal defense attorney who will professionally handle your case.

Attorneys May Check Jurors Facebook, Twitter and Social Media Accounts. However, Attorneys May Not Facebook Friend Request a Juror During Trial

Social Media and Jury Selection

Photo: Birger King

Most average citizens are aware of the fact that when putting together a jury, lawyers will ask questions that gauge the opinions and beliefs of potential jurors. However, something that may come as a surprise is that the American Bar Association (ABA) recently announced that researching a potential juror’s social media activity is an ethical practice in jury selection.

Standard Operating Procedure for Jury Selection

When it comes to jury selection, practices vary from state to state and the numbers will depend on the type of crime. A civil case may have as few as six jurors, while more serious criminal cases generally require twelve jurors. Alternate jurors are sometimes selected just in case a juror becomes ill during the trial. They hear the same evidence and arguments as the other jurors but won’t participate in deliberations unless they are needed as a replacement.

Before being officially selected, the judge will give potential jurors an idea of the type of case to be tried and ask if there is any reason they cannot serve. The judge or lawyers will then ask questions to determine if the potential jurors might be biased in regards to the case, such as being related to one of the parties involved in the case, having preconceived opinions in regards to the basis of the lawsuit, or having already cast judgment based on news items relating to the case.

Social Media Searches: Not Just for Potential Employers Anymore

The rapidly growing world of social media is having widespread impact on how the rest of society functions. In the past few years, several studies have been released stating that more and more employers are performing Google and social media searches of potential applicants before deciding whether to hire (or in some cases, continue to employ) certain people. Now those same searches are being used for jury selection.

Previous to April of this year, the issue of whether or not this practice was ethical was undecided. Some judges have permitted lawyers to perform these types of searches while others have refused to allow it. Technology has already found its way into the field of jury selection, with multiple apps designed specifically to help lawyers organize and filter potential juror information. However, some companies have started offering software that searches social media to create juror profiles.

At least two states have already addressed the issue of online searches. Missouri has a website tracking lawsuits in the state, and the Missouri Supreme Court requires attorneys to use that website to search the litigation history of potential jurors. In 2013, the Oregon State Bar published an opinion stating that lawyers could use publicly available social media information for jury selection so long as they didn’t actively “friend” or “follow” the potential juror.

With all the varying opinions, the ABA’s Standing Committee on Ethics and Professional Responsibility took on the issue approximately two years ago, and on April 24, they released Formal Opinion 466 stating that information gathered passively through social media and other searches was considered ethical research.

What Exactly is Formal Opinion 466?

To understand Formal Opinion 466 and how it relates to jury selection, it is important to first understand that the ABA has a group of Model Rules of Professional Conduct. These binding rules form the basis for governing conduct among lawyers in every state (excepting California which follows a different format in their rules) and the District of Columbia. Formal opinions are interpretations based on those model rules.

Formal Opinion 466 is based on Model Rule 3.5 and states that a lawyer may review a potential (or current) juror’s postings and comments on websites or social media sites in regards to jury selection providing it doesn’t violate Model Rule 3.5 subsection (b) prohibiting ex parte communication with jurors. Formal Opinion 466 addresses such conduct on three levels:

  • The practice is ethical if the research is “passive” (i.e.- the information is available without an access request such as a Facebook “friend request”) and is done without the juror’s knowledge. If done in this manner, it is considered a “mere act of observing.”
  • Requesting access to a potential juror’s social media account is considered an “active” review and a violation of ex parte communication.
  • If a potential juror is notified via the social media site or website that a passive search has been performed, it is not a violation of Model Rule 3.5(b) because it constitutes communication from the electronic entity and not the lawyer.

The Song Remains the Same

While technology and social media is changing how the world operates, the same basic rules of humanity apply. People are judged by their words and actions. In this modern world, those words and actions are much more public.

A harsh criticism of an employer that used to be exchanged over drinks with a colleague is now potentially dangerous Facebook fodder (if your boss sees it), and many choose to ignore the old adage about not discussing politics or religion in polite company, especially when there’s no one else actually in the room but you and your computer.

Unfortunately, whether it’s completely accurate or not, you are who the internet says you are, and you will be judged by the online comments you make and the pictures you post. If that’s a problem for you, perhaps it’s better to just turn off the computer and carry on the conversations over the fence like they used to be.