Tweets Contradict Court Filings, Leading to Judgment of Conviction and Appeal

We have been covering a case pending in the Criminal Court of the State of New York in which the State sought discovery and use of a criminal defendant’s tweets for use in his trial. Malcolm Harris was accused of disorderly conduct when he and others allegedly marched on to the Brooklyn Bridge during an Occupy Wall Street protest. For nearly a year, Harris argued in court papers that he was not guilty because the N.Y.P.D. had allegedly led the protestors onto the roadway of the Brooklyn Bridge as the protest swelled.

Harris’s tweets, however, told a different story: “They tried to stop us, absolutely did not want us on the motorway,” Harris tweeted during the October 1, 2011, protest. “They tried to block and threaten arrest. We were too many and too loud. They backed up until they could put up barricades.” After these tweets and others were revealed in court for the first time, Mr. Harris pled guilty to disorderly conduct. Judge Sciarrino offered Mr. Harris the option of a sentence of three days of community service or six days of community service if Mr. Harris wanted to choose his own program to whom he would donate his services.

Nevertheless, Harris has filed an appeal from the judgment of conviction and the criminal court’s finding that he could not challenge the subpoenas that were served on Twitter, seeking a retrial without the use of Mr. Harris’s incriminating Tweets. Stay tuned, we will continue to provide updates on this story as they develop.

Paul A. Saso is a Director in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.
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