David Vitter’s Investigator Could Face Wiretapping Charges. The Case Will Go Nowhere

Jefferson Parish Sheriff Newell Normand held an afternoon press conference to elaborate more on the incident that he and his cronies created at the Royal Blend Coffee Shop on Metairie Road on October 23rd. Normand was having a “coffee klatch” at the establishment with several associates when they realized they were being filmed by Robert Frenzel an investigator employed by David Vitter. From The Advocate:

On Oct. 23, a regular coffee klatch that includes Normand convened at the Royal Blend cafe in Old Metairie. At some point, the group noticed a man seated at a nearby table filming the group.

The alleged spy was later identified as Robert J. Frenzel, a private investigator from Dallas who had been doing research for U.S. Sen. David Vitter’s campaign.

There seems to be some confusion as to whether Frenzel could legally film Normand. Mainly, this comes from Normand himself, who has head scratchingly suggested since the incident that Frenzel could be arrested for violating the state wire tapping statute, LA RS 15:1303.

You can read the wiretapping law at your leisure, but as has been pointed out by folks, Louisiana is one party consent state. Meaning that one party to a conversation has to agree or have knowledge that it is being recorded. As such, Normand and others have posited that because Frenzel was not a party to the conversation at the Royal Blend, he violated the statute and thus should be arrested. But as Lee Corso would say “Not so fast, my friend.”

The key question is what is Normand’s reasonable expectation of privacy. The only case on point in Louisiana is the case of State v. Smith. In Smith, an investigator for the New Orleans public defender was in a hallway at the New Orleans jail and overheard an ADA interviewing a potential witness. Smith, the investigator, recorded the conversation and the recording was brought to light when the witness committed perjury at trial. Smith was later indicted for violating LA R.S. 15:1303. The indictment was quashed (thrown out) and the State appealed.

In Smith, the court outlined the relevant line of inquiry.

For purposes of offense of interception and disclosure of wire, electronic, or oral communications, it must be decided whether the expectation of privacy afforded to victim, viewed objectively, was justifiable under the circumstances, as expectation must be one that society is prepared to recognize as reasonable. 

The court upheld the motion to quash based on the fact that Smith was lawfully in the hallway. The conversation was audible to the human ear and Smith used no enhancement to his recording device.

The case can easily be applied to this situation and Frenzel has a stronger case than the defendants in Smith. Normand is in a public place. He is a public figure in elected office and regularly speaks on matters of great public importance, such as the upcoming election. It is not unreasonable for people to photograph him and record him while he is in public. Frenzel was using a recording device with no enhancements and was only recording what was audible to the human ear. He was sitting a few tables away. The Royal Blend has an open floor plan and Normand does not suggest he was in a secluded or private area of the store. The location is open to the general public and it is not unusual for people to gather there. Further, Normand has many places where he could go and have a private conversation, his office, his squad car, etc.  He knows he has no expectation of privacy while in the Royal Blend and it is ridiculous for him to suggest otherwise.

Applying the Smith, standard, a court will rule that Normand did not have a reasonable objective expectation of privacy and any criminal case against Frenzell for violating the wire tapping law will go nowhere.

Cartoon Images Depicting Child Pornography: Should This Be Allowed?

A fascinating criminal case took place in Canada where a US Citizen was convicted of possession of child pornography for having images of cartoon characters engaged in sexual acts.

Peter Hasler, 25, of Murrells Inlet, S.C., was arrested at Halifax Stanfield International Airport on Sept. 12 after a search of his laptop turned up animated images of characters under the age of 18 being sexually abused.

According to news reports, the man received a 90 day jail sentence and “will have a difficult time ever getting back into Canada”. A 90 day jail sentence is very light for a child pornography case. In Louisiana, defendants facing charges of possession of child pornography are facing 10 years in jail and will be required to register as sex offender for life.

Prosecutors and the judge described the images on Hasler’s computer as vile and immature. And although I haven’t seen the pornographic images, I don’t doubt that is the case. In an interesting twist, however, Hasler would not have been prosecuted for these images in the United States. In 2002, the Supreme Court of the Untied States struck down a provision of the Child Pornography Prevention Act of 1996, that criminalized “any visual depiction, including any photograph, film, video, picture or computer generated image or picture” that “is or appears to be a minor engaging in sexually explicit conduct.” See Ashcroft v. Free Speech Coalition, 535 US 234 (2002).

The court struck down the provision on first amendment grounds stating that it criminalizes “the freedom to engage in a substantial amount of lawful speech.” There are several issues with criminalizing cartoon or computer generated sexual images.

First, child pornography involving a real person is a photograph or video of an underlying crime; a sexual assault. The trading of these images in a secondary market creates demand for more sexual violence against children. Therefore, even though the possessor is not directly harming a child, he is creating the conditions for more harm to children to occur. Obviously, a graphic cartoon  is not evidence of an underlying crime against a child. Without that harm, should these images create criminal liability on the part of the possessor?

Second, a cartoon or a computer generated image is not in fact a person. Bart Simpson has been 9 years old for the past 26 years. How do you assign an age to something that inherently doesn’t age? And what legal standard determines if the images are of a juvenile? It may not always be obvious.

As video technology and virtual reality advance, it may be possible for pedophiles to engage in sex acts with computer generated minors. On one hand, this would decrease the harm caused to real life victims. On the other hand, it may be permitting behavior that could lead to an epidemic of sexual assaults against children. There is no way to know at this point. Do we err on the side of protecting children and infringe on technology that may have artistic merit such as a video game? Criminalizing these images may not be the answer but should they be encouraged as well?

Hear Craig Mordock Interviewed on the Monday 2nd Guess Show

On January 26th, I was a guest on WWL radio discussing the Benson family feud, The battle for control of the Saints touches on a number of interesting legal issues and Bobby Hebert and Mike DeTillier ask my thoughts on the lawsuit and how the case will proceed. My segment starts about 14 minutes in.