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E. BARRETT PRETTYMAN United States Courthouse
Naim Butler was a newcomer to the legal scene in Washington, though the firm of Baker & Keefe had an excellent name for itself. Naim and his paralegal assistant were at the E. Barrett Prettyman U.S Courthouse prepared to carve up the prosecution and officially make Naim’s debut with his first court appearance as lead counsel. The change from his usual New York scenery wasn’t apparent, thanks to the uniform decor of a federal district court in anywhere, U.S.A.
Naim was reminded of his first day at the University of Pennsylvania Law School, where he was determined to be himself. The same held true today. He had worn baggy jeans and T-shirts to class, bopped to rap music screaming through earphones while walking through campus. The first of his family to attend college, he was just an ordinary African-American from the ghetto, attending the nation’s number one law school, and refused to lose his identity to fit in with some snobbish classmates.
Honorable Milton Hardiman was a beefy, broad rectangular man, built like a retired NFL offensive lineman beyond his prime. Quite a big man, a little fit for fifty-three, and he didn’t look his age. He had hair growing on his knuckles and out of his ears. Balding, but he had a nice brown combover going, with kind deep brown eyes to match. His brows were thick and kept migrating to the bridge of his slim nose, as he studied the direction and nuance of the government’s argument. He was greedily writing on yellow legal pad, as if the entire affair were an academic exercise of which he wanted an “A”. The softest aspect of his face was his disarming smile, causing deep dimples. Naim knew that the smile was a lie.
AUSA Shai Brown, a career prosecutor, and no man’s fool, was laying out the grounds for his need to have his warrant approved with surgical precision. He was careful not to drop bits and pieces about his actual case against David Thurman, and that was what Naim mentally prepared to capitalize on.
The prosecutor was up in the middle of the well at a lectern, in the closed courtroom, like a miser guarding information in the Information Age, but he had to light at minimum a small fire around the edges of their case to have the warrant approved. He spoke at a glacial pace and Naim presumed he was the kind of man that would pull a fast one if no one paid attention to what he said; a grave mistake that the rookie defense attorney wouldn’t make.
Continuing his presentation, ASUA Brown said, “As part of our investigation into the mass murder of seven people and the brutal assault of two women, perpetrated by David Thurman, the Government learned that Thurman has a Facebook account where he posted long statements about his perspectives on life and would write about those things or people who bothered him. Most postings were depressing and negative in nature and could be described as mini-rants. The application for a search warrant was intended to operate in bifurcated manner. The Government outlined information that it wanted Facebook to disclose and specified the information that it would seize, both of which will be beneficial to the Government and the defense.” And on that note he had a seat as if dropping the mic, because he offered the defense information on an olive branch.
Naim wasn’t convinced and didn’t need the prosecutors’ help.
Judge Hardiman sat his pen down and looked at Naim. He said, “First of all, welcome to the D.C. District Court, Mr. Butler. Hopefully, you’ve been treated well, thus far, despite what you’re here to do. And that is garner an acquittal for a man accused of murdering a U.S. Senator and a U.S. Supreme Court Justice.”
Naim smiled, stood and replied, “Thank you.” Whether the judge had shot at him or genuinely welcomed him, was a question he’d answer as the proceedings continued.
“I’m going to surmise that you disagree with the Government.”
“I do, Your Honor,” Naim said, proceeding to the lectern without notes.
“Proceed.”
“Well, Your Honor, I prepared remarks, but they may not be relevant, considering the Governments request asks for material that do not support murder allegations. Here, today, Mr. Brown offered that my client, David Thurman, made so-called mini-rants on his Facebook page. However, the Government didn’t outline any rant leading to the conclusion that Mr. Thurman desired to kill anyone named in the indictment, or otherwise. The prosecutor doesn’t even indicate that any of the deceased names or their positions on government were ever mentioned in a Facebook post, for that matter. I’d be happy to take a look at any specific posts making this warrant necessary.”
“He makes a good point, Mr. Brown. You say what?” The judge asked.
“Your Honor, while the defendant didn’t mention anyone by name, he referenced senators and judges from all levels of our court system.”
“None of them by name?”
“No, Judge Hardiman, but we can assume...”
“We can’t,” Naim blurted.
“Pardon, but I’m talking,” AUSA Brown said, smirking.
“But we can assume that he meant the two deceased as one, the senator, championed the drug laws that led to Thurman’s wife being sentenced to a mandatory sentence. The deceased justice wrote the opinion upholding the constitutionality of said mandatory sentence. No, he didn’t day Judge Elberg, but it’s clear who he ranted about.”
The Judge nodded and looked back at defense counsel.
“It’s not clear. Look...” Naim said, catching himself. Calm down. “Your honor, even if we accept the Government’s alternative fact, as no one here knows who Thurman referenced. Their requested warrant is severely overboard, evades the fundamental requirement that a search warrant particularly describe what items are to be seized, and despite the Government’s statement here, it fails the necessity of showing that the items seized are contraband, instruments of committing a crime, or evidence of a crime’s commission. I mean, they’re asked for things as mundane as pending friend requests, all posts that he used the ‘Like” feature, and all privacy settings, to name some of the twenty. We’re prepared to view all questionable posts and stipulate to the ones that aid the Government’s case. That should be sufficient for the Government to make a bail argument, as their very general search warrant precipitated the enactment of the Fourth Amendment.” Naim retreated to the defense table and sat.
“Way to point out your first point,” Daniel whispered to Naim.
“Here’s where we are,” the judge said, flipping to a clean page on his legal pad. “The Government asks for the defendant’s passwords, but if Facebook hands over the data, I can’t see why that’ll be necessary. They ask for security questions and answers, friend’s list, future and past event posting, pokes, gifts, comments, and the list goes on for some two pages. So much so that I am inclined to reign it in some. I agree with the defense that the warrant is overboard and somethings simply do not get us to intelligence leading to a murder conviction. I’m duty bound to limit Facebook’s disclosure to information about Thurman’s account and the content of messages that he sent and all wall posts. I’ll order Facebook to disclose records of communication, but not the content of communication, between third parties and Thurman’s account. The Government is permitted to seize only the information directly related to its investigation. All records and content that the Government determines are not within the scope of the investigation, must either be returned to Facebook, Inc., or, if copies, physical or electronic, destroyed.
“A memorandum opinion will follow to explain the Court’s reasoning for issuing the modified search and seizure warrant. At bottom, the Government’s request is overbroad under the Fourth Amendment because of the unwarranted invasion into the privacy of third parties. If that is all, we’re adjourned.”
The judge skated from the bench as the attorneys stuffed their briefcases with their papers. Naim stood turned to leave the courtroom, and was accosted by the opposition.
“I gotta say good job.”
Naim nodded. He didn’t need a pat on his back.
“And your client is well trained. He hasn’t said a word.”
“And he won’t.”
“Wanna plead this?”
Naim chuckled.
“Remember you asked for this.”
“No love, just sex.”