Judge refuses to dismiss charge in Facebook threat case

State District Judge Jack Robison State District Judge Jack Robison Photo: San Antonio Express-News Photo: San Antonio Express-News Image 1 of / 11 Caption Close Judge refuses to dismiss charge in Facebook threat case 1 / 11 Back to Gallery

NEW BRAUNFELS — Calling his arrest unlawful, Justin Carter's attorneys this week sought the dismissal of a felony charge filed over his Facebook remarks about killing kindergarteners.

On Friday, however, the judge sided with prosecutors, who said a jury should decide if Carter, who claims he made the statements in jest, overstepped constitutional protections for free speech and was guilty of making a terroristic threat, as alleged.

Expressing disappointment, Carter's attorneys are awaiting State District Judge Jack Robison's findings of fact and conclusions of law, which should explain his rulings. Robison had predicted at the pretrial hearing that whatever ruling he made would be appealed.

Media far and wide have covered the case, which touches on two hot-button issues in America: abusive Internet conduct and school violence.

Carter, now a San Antonio resident, put himself in the spotlight with online comments Feb. 13, 2013, two months after 20 students and six staffers at a Connecticut campus were slain by a lone gunman.

He spent months in jail before an anonymous supporter posted $500,000 bail. The case is set for trial Oct. 27.

Carter testified briefly at this week's two-day hearing, where his pro-bono legal team sought to have the indictment dismissed, to have his arrest declared illegal and/or to have the court suppress his statements to authorities — including a hand-written letter he sent the judge from jail.

In admitting the May 17, 2013, letter to him into evidence, Robison said he had not previously seen the missive.

“I wasn't trying to scare anyone, I was trying to be witty and sarcastic,” Carter wrote to the judge. “I failed and I was arrested.”

Other hearing evidence included a March 19, 2013, police interview in which Carter expressed familiarity with online issues such as cyber-bullying but said he had just learned of the slaughter at Sandy Hook Elementary School.

He reported being on the internet “24/7 almost,” primarily playing games but sometimes “trolling” other users.

“You go online and you try just to irk people. ... What you're kind of trying to do is work them up,” he told detectives at Travis County Jail.

He confirmed sending the offending remarks to a Facebook group page for attractive teenagers, saying, “I guess things got a little out of hand.”

Apparently responding to a suggestion that he has mental problems, Carter wrote, “I'm (messed) up in the head alright, I think I'ma SHOOT UP A KINDERGARTEN..... AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN..... AND EAT THE BEATING HEART OF ONE OF THEM.”

The comments quickly sparked an anonymous tip to Austin police and Carter's arrest the next day.

The tip comprised a screen shot taken from an iPhone that depicted part of the Facebook exchange, or thread, defense witness Jeffrey Treem, an assistant professor of communications at the University of Texas in Austin, testified Wednesday.

A linguist called by the defense this week, Sara Kimball, described Carter's comments as “gruesome hyperbole.”

After finding an Austin address for Carter and matching the profile photo on the screenshot with one on his Facebook page, investigators there swiftly got a warrant.

He was arrested at work in San Antonio.

Taking the stand Thursday, Carter recalled seeking and receiving a court-appointed attorney when magistrated in Travis County.

The attorney, Mindy Montford, testified that she was shocked to learn that New Braunfels detectives had interviewed Carter weeks later in jail without notifying her.

Even though Carter was given a Miranda warning — and waived his right to have counsel present — lead defense attorney Donald Flanary III argued the statement should be suppressed.

That was among several lines of attack on the state's case, which was moved to Comal County after it was learned Carter made the remarks from his home in New Braunfels.

Flanary said Carter's words didn't constitute a true threat or crime since they were qualified with “I think” and lacked any particularized target, merely mentioning “a kindergarten.”

Also, in an Aug. 18 application for a writ of habeas corpus, Flanary wrote, “The 'terroristic threat' law violates Article 1 of the Texas Constitution: 'No law shall ever be passed curtailing the liberty of speech.'”

He also said the statute under which Carter was charged is unconstitutionally vague.

It reads, “A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service.”

“We don't know what 'other public service' means,” Flanary told Robison. Prosecutors say the kindergarten was the public service involved.

Finally, Flanary argued that Austin police lacked probable cause to arrest Carter, so his arrest was illegal and all of his later statements should be suppressed.

Officers lacked proof of the author's location and had only the unauthenticated screenshot supplied by an unknown person to link Carter to the alleged threat, said Flanary, noting the arrest affidavit wrongly asserted Carter lived in Austin.

Prosecutor Chari Kelly said courts are obliged to uphold a statute unless it's shown to operate unconstitutionally “in all possible circumstances.”

She said Austin police acted in good faith, with haste, to track down the author of the menacing comments.

“When you have someone threatening to shoot up a kindergarten, you don't wait for a Facebook return (of a subpoena for records).

Dismissing Flanary's comparison of the Facebook exchange to a playground argument, she said, “Mr. Carter was an adult threatening to shoot up a kindergarten. Whether or not he was going to take action, that's a true threat. It's terroristic.”

Carter was happy to speak with officers at the jail, calling his then-five-week incarceration “terrible,” and praised authorities for acting quickly on the perceived threat.

“I was actually pleased that it only took them a day ... to come get me, because that means that these people are dedicated and serious about stopping terrorists,” he said.

He never meant to scare anyone, and would never have acted on his words, he said, noting, “Everybody I know knows that I'm too lazy to even get up out of my chair.”

zeke@express-news.net