Clerk magistrate dismisses Fall River city councilor's attempt to bring charges over Facebook post

As the movement to recall Fall River Mayor William Flanagan has picked up steam, members of the city's political establishment have been turning to the police and courts to try to jail their critics over mocking posts on the Facebook group "Threw Up in Fall River," as we've previously reported. John Creeden, a cousin of Flanagan, previously faced charges brought on by both Fall River Corporation Council Elizabeth Sousa and the mayor. Sousa accused Creeden of "accosting" her after he posted a picture of her with a vulgar caption suggesting she had a sexual relationship with the mayor. The mayor accused Creeden of intimidation after he posted of a picture of a tombstone with the name “Flanagan” with the added text “The Last Selfie,” which Creeden said was merely a reference to the predicted end of the mayor’s career as a politician.

Creeden insisted that both pictures were just pieces of satire protected by the First Amendment and beat both charges. Flanagan agreed to dismiss the charge he sought and a clerk magistrate dismissed the charge brought by Sousa.

Now, a second member of the group has beaten an "accosting" charge, this one brought on by a city councilor who supports the mayor. According to The Herald News:

A clerk magistrate dismissed City Councilor Pat Casey’s attempt to press criminal charges against a Fall River man who posted an inappropriate illustration with her name on Facebook.

Casey, 79, a city councilor for 17 years, said she will pursue a civil case against the individual who posted the picture meme on the “Threw Up in Fall River” private group page on Facebook.

“I still think it’s terrible that you have to put up with such bad things,” Casey said. “They feel as if this is about freedom of expression, but to me, it’s not.”

During a Nov. 20 show-cause hearing in Fall River District Court, a clerk magistrate found no probable cause to sustain a charge of accosting or annoying a person of the opposite sex, said defense attorney Patrick McDonald, who represented Jason Ramalho, the individual who allegedly posted the inappropriate meme.

“There was no threat found with the posting. There was neither a veiled or an actual threat,” said McDonald, who also represented John F. Creeden...

McDonald said he filed the same brief he used in the Creeden case to argue against Casey’s request.

I'm glad to hear the clerk magistrates in Fall River have enough common sense to throw out cases like these. Hopefully by now, the politicians and bureaucrats in Fall River have learned that it's better to grow a thicker skin than to try to throw people in jail over mockery and gossip.

In related news, as the December mayoral recall election draws near, CommonWealth magazine reports on a strange possibility: even if Flanagan is recalled, he may still be able to win back the mayor's office due to the large number of candidates on the ballot:

Fall River Mayor Will Flanagan may pull off one of the most improbable election victories in history in three weeks: the odds are pretty good that voters on the same day will recall him from office for a variety of alleged misdeeds and then immediately reelect him.

The recall effort is gaining momentum because concern about Flanagan’s mayoralty has reached a fever pitch. But on the same ballot where voters are being asked to weigh in on the recall, they will also be asked to select a replacement. Flanagan has thrown his hat in the ring, along with seven other candidates. The early betting is that Flanagan’s rivals will split the vote and the recalled mayor will return to office...

The potential for that [outcome] to become reality was set in motion earlier this month when Judge Thomas McGuire Jr. ruled that the Dec. 16 vote for mayor will not be a preliminary election, with the top two finishers moving on to a runoff in January. That means all Flanagan needs to win is to gain a plurality of the votes cast. McGuire also gave Flanagan a bit of a lift, ruling that his name should be placed atop the ballot because of state election laws that mandate that incumbents be listed first. It was a win-win for Flanagan, who agreed he feels optimistic that the ducks are lining up for him to keep his job.

CommonWealth speculates that the other person most likely to win the election is Bristol County District Attorney Sam Sutter, which would be an interesting outcome considering Flanagan previously worked under Sutter at the district attorney's office:

[Shannon] Jenkins, [a] UMass Dartmouth professor, said most people in the area believe Sutter has the best chance of defeating Flanagan. With his name recognition and campaign machine, Sutter could pull in the majority of votes from those who want change in what she thinks will be a low-turnout affair.

Whatever the outcome is, only time will tell.

Civil disobedience case shows district attorneys can use discretion for positive outcomes

Bristol County District Attorney C. Samuel SutterHere is some incredible news from The Boston Globe:

Bristol District Attorney C. Samuel Sutter knew the law. He also understood the threats posed by climate change. So for days he grappled with what to do about the two environmental activists facing criminal charges for blocking a 40,000-ton coal shipment last year to the Brayton Point power plant in Somerset.

Just as the trial was about to begin Monday, Sutter decided to drop all charges.

Then, in a dramatic appearance at Fall River District Court, he said he empathized with the stance of Ken Ward and Jay O’Hara, who said they were acting to reduce harm to the planet when they used the lobster boat Henry David T. to block the shipment to the coal-burning plant.

“Because of my sympathy with their position, I was in a dilemma,” Sutter said afterward. “I have a duty to go forward to some extent with this case and to follow the applicable case law, but they were looking for a forum to present their very compelling case about climate change.”

He added: “I do believe they’re right, that we’re at a crisis point with climate change.”

...

The district attorney vowed to join the “People’s Climate March” in New York, and said his decision to drop the charges “took into consideration the cost to the taxpayers in Somerset, but was also made with our concerns for their children, and the children of Bristol County and beyond, in mind.

“Climate change is one of the gravest crises our planet has ever faced,” Sutter said. “In my humble opinion, the political leadership on this issue has been sorely lacking.”

Afterward, he said wasn’t concerned that he and other prosecutors would be facing a flood of similar cases of activists breaking the law.

“This resolution today only sets a precedent within Bristol County for a case almost identical to this,” he said. “There is only a precedent for almost identical facts.”

Climate change isn't an issue I follow closely, but I really thought this story was worth highlighting because it shows the amount of discretion that prosecutors have and how they can use it to create positive outcomes.

No one wants district attorneys to let off murderers and rapists, but a district attorney who takes a "the law is the law" approach is bad news too. There plenty of cases where the law is out of whack with our values and sometimes -- perhaps even frequently -- a prosecutor refusing to pursue a case is the best outcome.

For example, public opinion is turning against the war on drugs. More people are starting to realize that the dangers of many illegal drugs have been greatly exaggerated (and sometimes entirely fabricated), that most drug users are at worst a danger only to themselves, and that treating drug abuse as a crime isn't the best way to deal with the issue. Medical marijuana laws are passing all over the country, two states have legalized pot for recreational use, several are likely to follow in their footsteps in the near future (including Massachusetts). Here in Massachusetts, a candidate for lieutenant governor can even say they support decriminalizing heroin and cocaine and still get an endorsement from The Boston Globe.

If prosecutors used their discretion in cases related to drugs, we'd see an end to the drug war much sooner.

Unfortunately, I regularly see news stories suggesting that prosecutors, like police officers, tend to be behind the times on this issue (here is an example from two days ago). Thankfully, even if prosecutors won't use their discretion to drop cases where people are accused of drug crimes, jurors still have the discretion to acquit them.