More details are out today about a story noted here yesterday: state Attorney General Tom Corbett's attempt to force Twitter to disclose information about two anonymous online critics.
Today's Post-Gazette account includes an interesting disclosure, made deep into the story:
[I]n a sentencing memorandum filed against former legislative aide Brett Cott in Dauphin County Common Pleas Court on Wednesday, Senior Deputy Attorney Generals Frank Fina and Patrick Blessington attributed the blog [Corbett is investigating] to Mr. Cott.
"Defendant has extensively and anonymously utilized a blog titled 'Casablanca PA: Exposing the hypocrisy of Tom Corbett' to defect blame and deny responsibility for his criminal conduct and to attack and malign the investigative and prosecutorial process, which resulted in his conviction," they wrote.
So obviously, the suspicion here is that at least one of these Twitterers is a Bonusgate defendant. And prosecutors want to use these Tweets to show a lack of remorse, in hopes of getting a stiffer sentence.
In one sense, it's no surprise that Corbett would be interested in documenting whether Cott made these statements. (Notably, Cott's attorney declined to respond to the allegation.) Prosecutors often use out-of-court statements by the convicted at the sentencing phase of a trial. What's a bit more interesting, though, is that Corbett's office is trying to ferret out the identity of a blogger ... even while prosecutors are telling a judge they already know who he is.
"This is a really good question," says John Burkoff, a Pitt law professor whose expertise is criminal law. "I imagine what they'd say is that they already have reason to believe [Cott is the blog's author], but they just want additional evidence to help prove it."
It's a little odd, he says, for a grand jury to still be looking into a case once a verdict has already been handed down: Usually grand juries are involved in a case at the outset, not at the end. But as Burkoff points out, Corbett has long maintained that there may be future proseuctions in the Bonusgate scandal as well. And as I suggested yesterday, you can imagine various scenarios in which in which a grand jury might issue a subpoena for this information. "You may actually get additional prosecutions from investigating this," Burkoff observes.
If it sounds like grand juries give prosecutors a hell of a lot of leeway, well ... they do. And while the ACLU is making a First Amendment stink about this, Burkoff thinks that ultimately, Corbett's office has a good chance of prevailing.
"All the social-network providers are reluctant to respond to these subpoenas and warrants," he says, "and they're likely to respond by trying to quash the subpoena." But if a prosecutor can tie the information to a criminal investigation, he adds, "The attempt to quash will probably not be successful."