An easy road for prosecutors: blame the innocent

A Chicago woman, Samantha Tumpach, 22, celebrating her sister’s birthday at a movie theater in Rosemont at the Muvico Theater was taping the festivities and accidently caught a few moments of the film “New Moon� on her digital camera last month. The movie theater owners called the police and she was arrested, spent two nights in prison, and was charged with piracy, a felony.

The theater owners are glad they turned in a copyright pirate. Cook County police pressed on with charges, with the help of the Feds. The media contacted the movie studio, which went ballistic with the horrible media coverage and pressed Cook County and the Feds to drop the matter. Cook County and the federal prosecutors reluctantly admitted they had to drop charges because the film studio refused to sign a complaint of piracy. They had Samantha in the crosshairs and, like all lazy hunters, they were eager for the easy kill.

But could they have gotten a guilty verdict? Law schools across the country have weighed in on the argument and claimed that there was no mens rea (intent to commit a crime) and any judge worth his or her salt would throw out the case. But, remember, this is Cook County we’re talking about, with a long history of falsified cases, many resulting in innocent executions.

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Some may think this was just a small mistake. Not so. It is the perfect example of American jurisprudence gone haywire.

How about the single mother of two from Texas, making ends meet by collecting road-kill feathers and making dream catcher ornaments, selling them online? The Feds broke down her door, scared her kids into screaming fits, took them away into foster care as they watched while they shackled the mother, hand and foot, and charged her with 62 counts of trading in wild animal parts.

When it finally got to court, the civil liberties folks stood up for the penniless woman and convinced the judge that the charges were a little over the top, as she had only sold 12 dream catchers and there was no intent (no mens rea) to trade in bird feathers.

In addition, as her revenue was a paltry $125 and she had already spent a week in jail, her kids being in their fourth foster facility, perhaps a little common sense and leniency could be shown? The judge, facing an election, took the (media) high road and released her with a fine (which she could not afford, but neighbors paid).

And this quick-kill mentality seems to be spreading. In England, a pub owner provided free Wi-Fi to his customers. One of those customers used the Wi-Fi to download something illegal (pirated video). Who did the police arrest? You guessed it, the pub owner. And it went to court, too, where they fined the publican a whopping $13,000 for the “error in providing access to the Internet for piracy.�

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Let’s face it, there are criminals out there on the Internet. Putting aside the spam and phishing e-mails we all get, there are people who are copying material they shouldn’t, they are sharing it all with their friends when they shouldn’t and, worst of all, they are, to a certain degree, contributing to delinquency on  the Internet. But delinquency is a far cry from criminal activity with intent (mens rea).

Remember Napster? Until it turned legit (by paying the music companies off with a share in revenue), Napster was the No. 1 pirate enemy to music copyright holders. Now there is Kaaza and BitTorrent, which are known to be misused by thousands breaking copyright laws.

Many of the biggest studios and conglomerates are looking for chinks in their defense (the First Amendment of the Constitution: free speech). Where are the chinks? Anyone they can arrest, even if she’s at a birthday party.

It is always easier to blame somebody you know was involved, even if innocent, justice be damned. The pub owner was an easy target — the pirated files did go through his service provider to his Wi-Fi — but who the end user was, no one knows.

So? Blame someone, arrest someone (as Giuliani once told New York cops,“You get a complaint, arrest someone, every call.�) In a police state, the model works well because you can claim that no crime goes unpunished, even if the punished are not the real villains; the statistics look good.

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When cars get into accidents, investigators immediately look for car faults — car companies have deeper pockets. If a gun is used in a crime, prosecutors and politicians want to blame the manufacturers, not the person misusing a tool. If a plane goes down, it is easier to blame the pilot (if dead) or the plane manufacturer (if quick reasons are not found) than to really discover who goofed.

In the case of the Lockerbie bombing in December 1988, find two government patsies and chase them, arrest them, jail them. Never mind that security-less Frankfurt airport put the suitcases with the bombs on board in the first place, blame Pan Am for having them on board, and put tens of thousands of people out of work when the airline fails.

Meanwhile, the criminal who deliberately misuses a computer program, a video camera, a car, a gun, a knife, an axe or even animal parts — that criminal gets a pass because a real crook, with mens rea firmly in place, is always harder to uncover (and doesn’t make the same quick-fix positive headlines for politicians).

Peter Riva, formerly of Amenia Union, lives in New Mexico.