How Your Social Media Posts Can Put You in Prison for Life

Hey folks, welcome to today’s Law of Self Defense Members-only content!

In today’s content I’d like to share with all of you a couple of news stories that remind us yet again that everything we put on social media is there forever and discoverable by authorities, and may be used against you in a court of law to potentially put you in prison for the rest of your life.

As always, I urge all of you to use your common sense, and don’t “social media” (meant as a verb) while angry, drunk, or otherwise not in a good frame of mind.

Before we jump into those two news stories, however, a quick word about our sponsor for today’s content:

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Now, the first of the two news stories I wanted to share with you touches upon a case I’ve already covered in considerable detail, that of Ahmaud Arbery.  Arbery was the guy suspected of felony robbery in Georgia who was pursued by two members of the community, the father Greg McMichael and son Travis McMichael, in (they would tell police) an effort to determine if there was probable cause to make a citizen’s arrest, which Georgia law allows.  The two men were openly armed, also allowed under Georgia law.

When the McMichaels stopped their vehicle in front of the running Arbery, Arbery charged at Travis McMichael and fought him for his shotgun.  During this struggle Arbery was shot by shell from the shotgun, and mortally wounded. This part of the events was recorded from a third member of the community following behind Arbery in his vehicle, one William Bryan.

All three men—the two McMichaels and Bryan—have now been indicted on charges of malice and felony murder in the death of Arbery, as well as some additional felony charges such as aggravated assault.

It is notable that the McMichaels and Bryan are white, and Arbery was black.

You’ll perhaps note that the narrative described above doesn’t much align with malice or felony murder, nor aggravated assault.  Indeed, it’s a narrative consistent with both the McMichaels and Bryan acting lawfully, being unlawfully attacked by Arbery (in the case of Travis McMichael), and either shooting Arbery in lawful self-defense or by genuine accident in the struggle over Travis McMichael’s shotgun.  That’s why the first several prosecutors who received this case all declined to bring charges in Arbery’s death.

Of course, that all changed once Attorney Benjamin Crump got involved, and the State of Georgia assigned the matter to a prosecutor from a different judicial district, Cobb District Attorney Joyette M. Holmes.  Weeks after the confrontation between Arbery and McMichaels and Bryan , DA Holmes had convinced a grand jury to indict the three white men on serious charges and is taking them to trial on those charges.

Given the narrative of innocence described above, surely the prosecutors must have their own narrative, a narrative of guilt.

And they do—and it’s a narrative of racist murder.  In effect, the state’s argument is that the McMichaels and Bryan pursued Arbery out of racial malice, and that Travis McMichael shot and killed Arbery with the same racial animus.

Initially, there was literally zero evidence of racism in this case, but absence of evidence of racism has never prevented Crump et al., from claiming racism, anyway, so not much surprise there.

Then, during one of the court hearings to affirm the charges against the McMichaels, a police investigator on the case testified that Bryan had told him that Travis McMichael had uttered the words “f’ing n-word” while standing over Arbery’s dead body.

I’m obliged to note that just because a third person says that someone else said something does not make it true—indeed, it’s classic hearsay.  Indeed, both McMichaels say through their attorneys that the uttered no such words (as one would expect them to say). For purposes of this discussion, however, let’s assume that Bryan actually made that statement to investigators, and would be willing to testify that he had done so under oath.

You’ll remember that Bryan was not directly involved in any physical confrontation with Arbery at all.  He was not even armed, and most likely Arbery himself was never aware of Bryan’s presence behind him, recording events on his cell phone.

Yet here Bryan found himself charged with felony murder and looking at the prospect of perhaps spending the rest of his life in a Georgia prison, or at least becoming engaged in a financially and reputationally ruinous legal battle against allegations of racist murder in an effort to get to an acquittal.

He, or at least his attorney, would know that if the prosecution were to premise their case against the McMichaels on racial malice, the prosecution would need actual evidence of racial malice. So far in the case there had been no such evidence.

But what if someone could offer the prosecution the evidence of racial malice they so desperately needed? Might that ever so helpful person not be looked upon more favorably by the prosecutor?

Under those circumstances, might it be likely that Bryan, in an effort to distance himself from the McMichaels and their legal fate, and present himself as a witness who could be helpful to the prosecution, and therefore perhaps approached with a lenient plea offer in exchange for helpful testimony, might fabricate a sudden recollection of the McMichael’s using racially derogatory language?

If you were looking at life in prison, as a racist killer of a young black man in a Georgia prison system, would you be willing to make up a small lie, one that could not readily be disproven, to avoid such a fate?

In short, the Bryan testimony about the McMichael using the n-word always struck me as carrying little credibility, given the powerful motivations Bryan would have been facing to fabricate such a lie.

Now, however, the prosecutors are claiming more evidence of racism on the part of the McMichaels, beyond Bryan’s attestation about their use of the n-word over Arbery’s body, such that the prosecution would not be dependent on Bryan as a single rather easily impeachable source of such evidence.

Specifically, the prosecution is now claiming that the McMichael’s made racist comments in their social media accounts.

To quote an Atlanta Journal-Constitution news report on this yesterday:

Racist social media posts and cellphone texts should be admitted into evidence at trial against the three men charged with the murder of Ahmaud Arbery, state prosecutors said in a recent court filing.

In a bit more specificity the same news report writes:

In the recent court filing, prosecutors said they want to introduce into evidence against Travis McMichael a “racial highway video Facebook post,” “a Racial Johnny Rebel Facebook post” and a racial text message, all posted or sent in 2019. They seek to admit into evidence an “Identity Dixie Facebook post” and “Racial Johnny Rebel Facebook post” against Greg McMichael.

They also want to introduce unspecified racist messages extracted from Bryan’s cellphone. At a bond hearing in July, lead prosecutor Jesse Evans said Bryan repeatedly used the n-word in texts that contain “a ton of filth.”

I’ve obtained a copy of this motion by the prosecution for the judge to grant them permission to admit this purported evidence of racist content from the social media of the McMichaels and Bryan, and find it interesting that the motion declines to specify the actual content. (That motion is embedded at the bottom of this post.)

By fails to specify the actual content, I mean that the motion summarily categorizes the content as racist, but doesn’t share the actual content such that a third party could make their own determination of whether a reasonable interpretation of that content is that it is racist.

In an era in which the word “racist” is thrown around like beads at a Mardi Gras parade, one becomes hesitant to accept such categorizations based on mere claims, especially when the person making the claim has such a biased interest in the claim being perceived as true.

It’s also interesting that the prosecution claims to have found only three instances of racial social media posts on the part of Travis McMichael and Greg McMichael, each.

For Travis McMichael the prosecution claims the following purportedly racist Facebook content and a single purportedly racist text message they wish permission to introduce into evidence:

Transaction 1: Racial highway video

Facebook post

Date: 9-22-2019

Transaction 2: Racial Johnny Rebel video

Facebook post

Date: 6-15-2019

Transaction 3: Racial text message

Date 3-16-2019

For Greg McMichael (the father) the prosecution claims the following purportedly racist Facebook content:

Transaction 1:  Identify Dixie Facebook Post

Date:  4-17-19

Transaction 2: Racial Johnny Rebel video

Facebook post

Date: 8-10-2019

They also wish to introduce something from Greg McMichael’s POST records that they purport to be racist.  For those who don’t know, POST is a certification organization for law enforcement, and Greg McMichaels had been a law enforcement officer.  The suggestion appears to be that he might have had his POST certification suspended on the grounds of some racist conduct.

With respect to William Bryan, the prosecution asks for permission to introduce as evidence of racism the following:

Transaction:  Racial Messages extracted from cell phone

Now, if the McMichaels or Bryan do, indeed, have unambiguously racist content in their social media, such unambiguously racist content would certainly appear relevant to the prosecution’s theory of the case, that the three white men coordinated to kill Arbery for reasons of racial animus.

That said, if it seems to you ambiguous whether any of that content can reasonably be perceived as racist, based on the prosecution’s description of it in their motion for permission to admit the evidence at trial – well, it seems ambiguous to me, too.

Why not include, in the motion, a description of what makes the content racist?  Is there merely, for example, a display of an image of a Confederate flag?  Is that sufficiently unambiguous evidence of racism to allow the prosecution to argue racism at trial before the jury?

Especially when as recently as 2001, well within the lifetimes of all three defendants, the State of Georgia itself incorporated the Confederate flag as a major design component of its own state flag?

Also, the rather limited number of examples being presented for the court’s review strikes me as odd.  Any of you who are of a certain age will have had the unfortunate experience of meeting the occasional rare public racist, the kind of person who might post unambiguously racist content on Facebook pages or in text messages.

Does it seem likely that a person who would engage in such conduct would do so only three times?  Or does it seem more likely that someone with such a twisted world view would invariably have expressed that view hundreds or thousands of times in social media and by other similar means?

The relative paucity of the claimed examples is certainly not dispositive proof one way or the other, but it seems to stretch credulity that someone who would murder for racist motivations would have fewer than a handful of expressions of racism in their social media history.

Is it possible the prosecution has many more examples, but chose to not ask the trial judge for permission to admit them into evidence at trial?  Sure, it’s possible.  But why?  Why not list twenty or thirty or 100 examples, if you have them?  Invariably the judge will exclude all but a few of the examples as duplicitous, but wouldn’t having the many examples make the argument of racist motivation more compelling in the motion?

If I seem excessively skeptical, and unwilling to accept these claims of racism at face value, it’s only because of how often we’re lied to about such claims.

You may recall that George Zimmerman was charged with second-degree malice murder premised on claims of purported racism—yet no actual evidence of racism was ever introduced at trial.  Indeed, the evidence actually collected—including by the Barack Obama and Eric Holder Department of Justice Civil Rights Department was, if anything, evidence of anti-racism.

The Michael Brown “hands up, don’t shoot” case is one of the most frequently cited claimed instances of “policeracistmurder,” but there’s never been any evidence introduced that the officer who shot Brown was racist or acted out of racial animus.

The George Floyd case is another supposed example of “policeracistmurder,” although Floyd had in fact ingested a three-fold fatal dose of fentanyl and the officers arresting him were themselves a multi-racial group using department approved and trained restraint techniques—and, in any case, there’s no evidence of racism in the Floyd case, either.

The Breonna Taylor case purportedly involved racist police shooting her dead while she slept in her bed, and we now know she was actually standing beside the man shooting at the police and drawing return defensive fire—and again, zero evidence once more of any racist motivation by the police involved.

Really, the same is true for virtually every high-profile claimed case of purported unaccountable racist murder of black people by white people in recent years.

Burn me once, shame on you, burn me twice, or three times or twenty times, shame on me.  If I’m skeptical, it’s with good reason.

Is it possible that the McMichaels are outrageously vehement racists? I guess anything is possible. But I’m a lawyer, and in the context of the law what matters is the evidence.  Where is the evidence?  Not suggestions of evidence, or inferences of evidence, or intimations of evidence—the actual evidence?  Because if there’s no evidence on an issue, that issue just doesn’t exist for legal purposes. And to pretend it does is nothing short of fabrication.

In any case, none of that is the real point of today’s post—I allowed myself to get sidetracked.

Before I get to the real point, however, I want to share with you a news story about another case of white men with guns chasing black people and getting themselves criminal charged.

This event took place in another state of the old Confederacy, Mississippi, and involved two white men, also a father-son team.  Wade Oscar Twiner, the father, and Lane Twiner, his 22-year-old son, pursued several black teenagers who were riding ATVs on the Twiner’s property.

In this case, unlike the case of the McMichaels, the Twiners were also shooting at the black teenagers as they were pursuing them, and without appearing to have any fact-based legal justification of either self-defense or accident for the discharged shots.

Also unlike in the McMichaels case, nobody was struck by the rounds fired by the Twiners, which is fortunate for everyone involved.

The Twiners now find themselves charged with three counts of aggravated assault, each, and if convicted they are each looking at up to 20 years in prison.

As a cautionary note, I’ll remind everyone of my warning that just about everything you read about use-of-force events in the media must be assumed to be 100% wrong until proven otherwise.  I can only double that warning when the case involves racial overtones, as this case does.

Further, I can only treble that warning when the media source is an explicitly black-centric news entity fully aware that a story involving elements of racist white violence against black teenagers will get far more clicks and exposure (and therefore generate far more revenue for the media organization) than would an essentially identical story involving merely black-on-black violence. (and this media source, the Grio, is by its own description explicitly black-centric.)

That said, based on the facts as reported in the news story linked above, I see little legal justification for the Twiners firing those rounds at the teenagers riding ATVs unlawfully on their property, and as such their firing of the shots could easily qualify as aggravated assault.

And that would be equally true regardless of the race of the Twiners or the race of the teenagers on the ATVs.

Yet once again we have allegations of racist motivation on the part of the white men, to the point that the local Sheriff is considering hate crime charges, as well.  According to the Grio news story linked above:

“Wade Oscar Twiner and his son, Lane Twiner, pursued them and tried to stop them and to shoot them and bump them with the four-wheeler, so they were charged with aggravated assault,” Sheriff Jacob Sheriff told WLOX. “We’re still looking at some things on that to see if we can establish a hate crime or not.”

And now we circle back to that actual point of this blog post.  What are the “some things” that the Sheriff is looking at to determine if racial animus was involved in this event.

The Twiner’s social media content.

Again, according to the Grio news report:

The sheriff is now looking at their social media posts to determine if the crime was racially motivated.

One now-deleted Facebook post from July reportedly displayed the words “Redneck Neighborhood Watch,” along with a photo of a Confederate flag, according to the sheriff, per US News and World Report. The post captioned “You Loot We Shoot.”

Again, we are frustratingly left without any detail that would enable us to make an independent determination of whether it would be reasonable to interpret the referenced content as racist.

“Redneck Neighborhood Watch” might be racist, but again, it might not.

It seems difficult to claim a photo of a Confederate flag is unambiguously racist given that the Confederate flag was a stylistic component of the Mississippi state flag as recently as this past June—and that’s only four months ago!

As for “You loot, we shoot,” I fail to see how that’s unambiguously racist on its plain words. The stated intent, if actually carried out, would almost certainly be unlawful conduct in the absence of the looters threatening innocent persons, and may suggest an unlawful state of mind. But a racist state of mind? I don’t see it.

But here, finally, is the point of today’s post,  which is, as the title of today’s content suggests, How Your Social Media Posts Can Put You in Prison for Life.

First, in both these cases, the men charged are looking at multiple decades or life in prison largely on the basis of having acted in a racially motivated manner.

Second, the major or exclusive source of evidence for these claims of racial animus, that underly these decades- or life-long prospective sentences, is content pulled from these men’s social media and other online accounts.

Your social media content is forever, folks.  There’s no such thing as “deleted” in any real sense when it comes to content that’s been put onto a computer of any form, especially a computer that you do not control and which is subject to search warrant (a search warrant with which the social media companies will readily comply, as they should).

That social media content may also be subject to interpretation by people who are extremely creative, and who have powerful financial and/or professional interests in mischaracterizing your social media content in an effort to make it appear to be virulently racist even if the content was never intended in any racist way whatever.

And, in cases where racial animus is relevant such mischaracterization could well mean the difference between an acquittal on the one hand, and a guilty verdict and life in prison on the other.

What can’t be mischaracterized, however, is social media content that does not exist, because you never created it in the first place. Do not put anything on social media, folks, that you would not want presented to the jury hearing a murder case against you.

Also always helpful, of course, is to just not be racist, but it’s my continually reinforced observation that the demand for racism in modern American vastly exceeds the actual supply.

And that’s all we have for all of you today, folks.

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OK, folks, until next time …

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict!

Stay safe!

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC