He Left the Smoking Gun

It's always nice, and far too rare, to see a prosecutor slapped around for being a heavy-handed, moralistic, jackass.
And so we turn to Miller v. Mitchell.
It's the sexting prosecution case out of Wyoming County, Pennsylvania,* and yesterday the Third Circuit Court of Appeals said that the district court was right to slap down the prosecutor.
You remember the case. It's the one where the elected prosecutor George Skumanick (misspelled Skumaniack in some early reports) got all hot and bothered by cell-phone pictures of pubescent teenage girls who weren't nude and decided to bring felony charges against them if they didn't submit to brainwashing moral re-education.

In October 2008, school officials in the Tunkhannock, Pennsylvania, School District discovered photographs of semi-nude and nude teenage girls, many of whom were enrolled in their district, on several students’ cell phones. The officials learned that male students had been trading these images over their cell phones, and turned the phones over to the Wyoming County District Attorney’s Office. George Skumanick, then District Attorney, began an investigation.

In November 2008, Skumanick stated publicly to local newspaper reporters and an assembly at Tunkhannock High School that students possessing “inappropriate images of minors” could be prosecuted under Pennsylvania law for possession or distribution of child pornography or criminal use of a communication facility. A few months later, Skumanick sent a letter to the parents of between 16 and 20 students—students on whose cell phones the pictures were stored and students appearing in the photographs—threatening to bring charges against those who did not participate in what has been referred to as an “education program”:

[Child’s Name] has been identified in a police investigation involving the possession and/or dissemination of child pornography. In consultation with the Victims Resource Center and the Juvenile Probation Department, we have developed a six to nine month program which focuses on education and counseling. If you[r] son/daughter successfully completes this program[,] no charges will be filed and no record of his/her involvement will be maintained. We have scheduled a meeting with all of the identified juveniles and their parents to discuss the program in more detail and to answer your questions. Following the meeting you will be asked to participate in the program. Participation in the program is voluntary. Please note, however, charges will be filed against those that do not participate or those that do not successfully
complete the program.

The education program was divided into a Female Group and Male Group. The “Female Group” syllabus lists among its objectives that the participants “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages.”
In the first session, students are assigned to write “a report explaining why you are here,” “[w]hat you did,” “[w]hy it was wrong,” “[d]id you create a victim? If so, who?,” and how their actions “affect[ed] the victim[,] [t]he school[, and] the community.” The first two sessions focus on sexual violence, and the third on sexual harassment. The fourth session is titled “Gender identity-Gender strengths,” and the fifth “Self Concept,” which includes a “Gender Advantages and Disadvantages” exercise.
At the group meeting scheduled by the letter, held on February 12, 2009, Skumanick repeated his threat to bring felony charges unless the children submitted to probation, paid a $100 program fee, and completed the education program successfully. One parent, whose daughter had appeared in a photo wearing a bathing suit, asked how his child could be charged with child pornography based on that picture. Skumanick responded that she was posing “provocatively.”
When plaintiff Marissa Miller’s father asked Skumanick who decided what “provocative” meant, Skumanick refused to answer and reminded his audience he could charge all of the minors with felonies, but instead was offering the education program. He told Mr. Miller, “[T]hese are the rules[. I]f you don’t like them, too bad.”

Most of the parents and children signed up. The few who didn't, sued.
I wish the Third Circuit had addressed the underlying acts and concluded they weren't a crime and that Skumanick had no right to bring criminal charges at all because what the kids did wasn't criminal. But plaintiffs' counsel didn't make that argument (and probably would have been thrown out of court if they had). They did argue that the photos were protected speech and the prosecution was retaliation for that, but they lost that argument in the district court, and didn't pursue it in the court of appeals.
Instead, they argued that Skumanick was retaliating against them for refusing to attend his re-eduction camp. And they argued that he was improperly usurping the roles of parents and schools in moral education. And they argued that he was unconstitutionally forcing the kids to avow his moral positions. The Third Circuit agreed. Wholeheartedly.
Skumanick, the panel said, was planning to initiate felony prosecutions in retaliation for the exercise of constitutional rights. That he couldn't do.

[A]bsent an injunction, the Does would have to choose either to assert their constitutional rights and face a prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution. On the facts before us, this Hobson’s Choice is unconstitutional. While “the Government retains broad discretion as to whom to prosecute,” “the decision to prosecute may not be deliberately based on . . . arbitrary classification, including the exercise of protected statutory and constitutional rights.” Wayte v. United States, 470 U.S. 598, 607–08 (1985) (internal quotation marks and citations omitted); see also United States v. Goodwin, 457 U.S. 368, 372 (1982) (“For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.”).

Terrific.

Here's the down side. It almost never happens. The court explained in a footnote.
This decision does not open the door to federal courts serving as a screening mechanism for state prosecutions. Before us is the unique circumstance of a prosecutor revealing unequivocally that a prosecution would be brought solely in response to a potential defendant’s exercise of a constitutional right. As the Supreme Court noted in Hartman, these “[u]nambiguous admissions” are “likely to be rare.” 547 U.S. at 264 n.10.

Sure they are. Most prosecutors don't make such overt, public threats, on the record.
In fact, people are arrested and prosecuted every day for exercising their constitutional rights. Sometimes the charges are eventually dismissed. Sometimes the defendants are found not guilty. Every time there is damage - arrest, jail time, public opprobrium, loss of income, maybe of family, the not-inconsiderable cost of hiring counsel, and that's just for a start. But there was no smoking gun, no prosecutor declaration that "I'm going after this guy for what he says or what he thinks or how he looks or what he does that the law and the constitution protect."
It's not hard to find those cases. You don't have to go to Maricopa County (though you'll certainly find them there). Just open the newspaper.
Good for the Third Circuit to prevent heartbreak and slap Skumanick around. Too bad it won't happen more.




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*Pa seems to specialize in places named after other places: There's California, Washington, Little Chicago, Indiana, York, Japan, Germany, Viennese Woods, Scotland, and of course Mars. Yes, I know. Your state has them, too. It's not often that I drive through Texas, Ohio, but it does happen.