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A Philadelphia Fox station’s Web site reports:

Pennsylvania Attorney General Tom Corbett’s … [s]pokesman Kevin Harley … [said] the subpoena’s intent will be made clear when a former government aide, Brett Cott, is sentenced on Friday in connection with the Bonusgate scandal.

Cott is one of three people who were convicted of public-corruption charges in March after a trial that lasted nearly two months.

Apparently the theory is that Cott might have been one of the anonymous commenters, and that this would bear on his sentencing — perhaps if he claims at sentencing that he’s sincerely contrite, and if his tweets are seen as undermining the claim of contrition.

The Fox news story also says, “ACLU attorney Vic Walczak said Thursday he would file a motion to quash the subpoena if an agreement with the attorney general’s office can’t be worked out.” Presumably the agreement that the ACLU is contemplating is something like “Twitter will turn over the identity if it’s Cott, but not if it’s someone else, who’s not being sentenced, and whose identity is thus irrelevant to the sentencing.” Looking forward to seeing what happens.

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    17 Comments

    1. Philistine says:

      The Grand Jury subpoena’s docket number shows it’s from a 2008 Grand Jury (which is when the bonusgate defendants were indicted).

      As I read the Statute (42 Pa. C.S. § 4548(a)), this very well may be beyond the power of the Grand Jury:

      The investigating grand jury shall have the power to inquire into offenses against the criminal laws of the Commonwealth alleged to have been committed within the county or counties in which it is summoned. Such power shall include the investigative resources of the grand jury which shall include but not be limited to the power of subpoena, the power to obtain the initiation of civil and criminal contempt proceedings, and every investigative power of any grand jury of the Commonwealth. Such alleged offenses may be brought to the attention of such grand jury by the court or by the attorney for the Commonwealth, but in no case shall the investigating grand jury inquire into alleged offenses on its own motion.

      In any event, it seems pretty clear a grand jury couldn’t be convened merely to investigate sentencing issues (assuming they don’t constitute independent crimes)–whether the happenstance that the original grand jury hasn’t yet been discharged means they can investigate purely sentencing issues isn’t completely clear–but it seems pretty sketchy(AIUI, in Federal Court this would be a no-no).

      May 21, 2010, 10:18 am

    2. John Jenkins says:

      Unless there is judicial gloss on that statute that’s not apparent from reading it, there appears to be no restriction on inquiries related to sentencing because those inquiries would still broadly be inquiries “into offenses.” That is, if facts are related to the punishment of the offense, then inquiries into those facts are inquiries into the offense.

      May 21, 2010, 10:44 am

    3. ShelbyC says:

      Apparently the theory is that Cott might have been one of the anonymous commenters…

      I call BS. If that theory is true, you subphoena comments made by Cott, not the identies of anonymous commentators, right?

      May 21, 2010, 11:16 am

    4. Philistine says:

      A quick look shows: Com. v. Lang, 517 Pa. 390, 537 A.2d 1361 (1988) which says

      In Appeal of Krakower, 500 Pa. 557, 459 A.2d 304 (1983), we commented on the jurisdictional requirements of the Investigating Grand Jury Act as follows:

      Central to the Act’s purpose is the necessity of the grand jury’s resources in order to adequately investigate and uncover criminal activity. Conversely, the normal law enforcement resources of the District Attorney’s office must be inadequate as a jurisdictional predicate to a submission before an investigating grand jury.

      * * *

      We conclude, thus, that the jurisdictional provisions of the Investigating Grand Jury Act and our decision in the Krakower case allow an investigating grand jury to call witnesses concerning criminal activity in the county, even if charges have already been filed with respect to that criminal activity, so long as: (a) there is a necessity for the grand jury’s resources in order to (b) adequately investigate and uncover criminal activity.

      The Court did note that it rejected the federal practice of banning continuing grand jury investigations after indictment for the purpose of obtaining evidence.

      Neither Lang nor Krakower are sentencing cases, and ISTM they seem to, at least implicity, suggest that the grand jury’s power would end, at the latest, at trial.

      May 21, 2010, 11:26 am

    5. Steve says:

      Even if it’s relevant to the issue of contrition, but the right to anonymously criticize the government (or to criticize the government without fear of retribution, which amounts to the same thing) seems pretty important to me. Whatever the context, any time the government is punishing someone for expressing views critical of the government, that’s highly problematic.

      But is it even relevant to the issue of contrition? A lack of contrition would be, for example, if the defendant was purporting to express regret for his crimes in the courtroom, but simultaneously sending anonymous tweets to the effect that the trial is a sham, the judge is bought off, etc. Even though one ought to be able to criticize the government freely, I can at least see the argument that such statements would expose his contrition as a sham.

      But the tweets in question seem to be things like “Quiz! Who sputters with indignation over failure to recuse from cases involving contributors? #bonusgate #pagovrace” This political criticism of the prosecutor may or may not be well-founded, I have no idea, but how does it show a lack of contrition?

      It’s probably not bright of me to stand up at my sentence and tell the judge that he’s biased and I received the most unfair trial ever. But I think it would be seen as an abuse of power if he sentenced me to an extra year for saying those things. Heck, in the context of filing an appeal I could say all sorts of things about how unfair my trial was and I hope it’s clear the government can’t punish me for making those arguments. But speaking generally, what sense does it make that prior to my sentencing, I can only say nice things about the prosecutor or else I face a longer sentence? How does that square with the First Amendment?

      May 21, 2010, 11:39 am

    6. Adam Sullivan says:

      Steve: the right to anonymously criticize the government (or to criticize the government without fear of retribution, which amounts to the same thing) seems pretty important to me.

      New York Times v. Sullivan should be perma-linked in the header of this site.

      May 21, 2010, 12:40 pm

    7. Adam Sullivan says:

      If this subpoena is not a fishing expedition then what is?

      May 21, 2010, 12:41 pm

    8. Philistine says:

      Sentencing went off without production, and the AG’s office says it’s now moot.

      Link

      Be interesting to see if this becomes an issue in the election for Governor.

      May 21, 2010, 1:31 pm

    9. Philistine says:

      And is it just me, or does anybody else, every time they hear the name “Tom Corbett” automatically finish with “Space Cadet”?

      May 21, 2010, 1:33 pm

    10. Fub says:

      Philistine: And is it just me, or does anybody else, every time they hear the name “Tom Corbett” automatically finish with “Space Cadet”?

      I would admit that, but I don’t want VC to be subpoenaed.

      May 21, 2010, 1:56 pm

    11. yankev says:

      Philistine: And is it just me, or does anybody else, every time they hear the name “Tom Corbett” automatically finish with “Space Cadet”?

      Yah, my first suspiscion was that the anonymous tweets came from Roger Manning. (It would be out of character for Astro.)

      May 21, 2010, 2:50 pm

    12. Noah David Simon says:

      Hiding IP addresses and muffled Proxies and such are nice, but even a veteran hacker gets caught with his pants down. Already Anonymous doesn’t exist. The only way to save this form of communication is to protect it legally.

      May 21, 2010, 2:52 pm

    13. SuperSkeptic says:

      From Philistines’ linked article at 1:31PM:

      The attorney general’s office had subpoenaed Twitter Inc. to ascertain the identities of two users who had posted writings sympathetic to the defendants, but prosecutors said after Friday’s hearing that the information had not been produced and they considered it a moot point.

      I’m unclear. Twitter stood up, and Corbett backed down? Was compliance always voluntary?

      May 21, 2010, 4:19 pm

    14. Midlantan says:

      ShelbyC:
      I call BS.If that theory is true, you subphoena comments made by Cott, not the identies of anonymous commentators, right?

      ShelbyC – While I would agree in theory (and there are other problems with the subpoena, it would seem), what you’re suggesting wouldn’t really be feasible, so one can understand why the AG wouldn’t try it that way, even assuming he were trying his darnedest to craft a narrow request. The AG already knows the twitter screen name isn’t Cott’s name, and it’s virtually certain the account isn’t listed under Cott’s real name, either (as Twitter doesn’t verify ID when a person creates an account).

      May 21, 2010, 8:42 pm

    15. Sock Puppet says:

      For the record, Cott is now in jail but the subpoenaed accounts continue to tweet and blog. No one would have even known of this if Twitter did not have a policy of notifying its users. Corbett was fishing for critics.

      May 24, 2010, 1:44 am

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