U.S. Supreme Court decision impact on case against Lee County 10-year-old accused of violent threat

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We’re keeping a close eye on the United States Supreme Court.

The Justices are expected to hand down a decision on a criminal case that could impact the trial of a Cape Coral boy accused of threatening violence at a school event. That opinion is expected before the nine Justices go into recess at the end of June or early July.

U.S. Supreme Court prepares to release opinion on "true threats" that could impact Lee County 10-year-old Daniel Marquez's trial.
Credit: Fred Schilling, Collection of the Supreme Court of the United States

That would be just days before Daniel Marquez goes back to court. As we’ve been reporting for the past year, Daniel sent private texts to a friend, texts he described as a joke about a scam involving money and guns, followed by a reference to a school event.

Lee County Sheriff Carmine Marceno said he “felt” the 10-year-old was really texting a school threat. Daniel was locked up and charged with a second-degree felony.

The case the U.S. Supreme Court is weighing in on is Counterman v. Colorado.
In short, a man named Billy Ray Counterman was sent to prison in 2017 for stalking a woman through Facebook messenger for years. The two had never met. Everything he communicated was through social media. The woman said those messages scared her. Counterman said he didn’t intend to threaten her and was exercising free speech.

The circumstances are much different than 10-year-old Daniel Marquez and the joke he said he texted his ten-year-old friend last May. However, both cases deal with an issue the high court deemed worthy of hearing: Can a “true threat” be words, void of intent?

“Criminalizing misunderstanding is especially dangerous in an age when so much communication occurs on social media, which brings together strangers and an environment that removes much of the context that gives words meaning,” says John Elwood, Counterman’s Attorney, during the oral arguments.

Supreme Court Justice Sonia Sotomayor: “The speaker’s intent should be part of the presentation the jury gets, because that’s part of the circumstances. But here, the court and the prosecutor argued that the intent was irrelevant, that he couldn’t present any evidence about his intent, correct?”

Attorney John Elwood: “That is exactly right… they said it doesn’t matter what he thinks.”

In Colorado, what matters is if a “reasonable person” viewed those messages as threats.
Under Florida Statute 836.10, written or electronic threats to kill, do bodily injury, or conduct a mass shooting or act of terrorism, it matters what “another person” views as a threat.

During the oral arguments, Justices Amy Coney Barrett and Neil Gorsuch question those standards.

Justice Barrett asks, “Who is the reasonable person?”

“We live in a world in which people are sensitive, and maybe increasingly sensitive,” says Justice Gorsuch. “What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening, and we’re going to hold people liable willy nilly for that?”

University of Florida Levin College of Law Professor Lyrissa Lidsky explains words also have different contexts among children, like Daniel and his friend.

“How do children interpret these things? It’s not even a teenager. It’s a 10 year year old, which to me is a different standard than you might have for a 16-year-old who might understand how it could be misconstrued in the light of our current social context,” says Lidsky.

Daniel, who was 10 at the time, explained to the Lee County Sheriff’s Office his words were a private joke. In a sworn deposition obtained exclusively by WINK News, Deputy Tyler Mackereth admit he arrested Daniel because of the content of the texts—alone.

“It was the fact that there was pictures of firearms, and then a quick reply of saying, ‘get ready for water day.’ Put those two closely together. In that context, made me believe there’s a threat there,” says Mackereth.

During that deposition, Daniel’s attorney Alex Saiz asks Mackereth about what he learned from Daniel.

Saiz: “When you then interviewed Daniel, did he say orally to you that he was going to shoot anybody at the school on Water Day?”
LCSO Deputy Mackereth: “No.”
Saiz: “When he spoke to you orally, did he ever say he was going to commit an act of violence on Water Day?”
LCSO Deputy Mackereth: “No.”
Saiz: “Have you spoken to any officials at Daniel’s either current of any other schools he attends?”
LCSO Deputy Mackereth: “No.”
Saiz: “Is there a reason you didn’t speak to any officials there?”
LCSO Deputy Mackereth: “Uhm. I didn’t think it had bearing on whether he sent the messages that violated the statute.”

Lee County Sheriff Carmine Marceno authorized the social media posting of Daniel Marquez's perp walk with arresting Deputy Tyler Mackereth.
Lee County Sheriff Carmine Marceno and Deputy Tyler Mackereth

LCSO won’t talk to WINK News about the case.

Harvard Law Professor Emeritus and Civil Rights Attorney Alan Dershowitz argues the accused should also have some knowledge that what they’re doing, or in Daniel’s case, what they’re texting is a crime in order to be convicted.

“The essence of tyranny is prosecuting people who didn’t know, weren’t given fair warning as to what their crime actually would be,” says Dershowitz.

Ken Paulson is the Director of the Free Speech Center at Middle Tennessee State University.
He wrote a guest column about Daniel Marquez’s arrest for an online news outlet last summer.

“Just on the face of it, it’s it’s outrageous,” says Paulson.

And if a child’s future wasn’t at stake, Paulson’s analysis of the texts would be comical.

“You’ve got your first text, in which he explains that he has scammed a friend and made a trillion dollars. Wow, that’s a significant amount of money if you’re 10! “So, what could law enforcement have done with that? He engaged in trillions of dollars worth of fraud. So, clearly, let’s get a Grand Jury. Well, obviously, they didn’t do that.”

“Then you move to the next text,” Paulson continues, “knowing full well that he never really secured trillions of dollars. And he says he used those trillions of dollars to buy AK 47 assault weapons—multiple ones. Well, he’s 10. He’s not allowed to buy multiple assault weapons. Surely, law enforcement again, taking his text very seriously, (says) we charged him with illegal purchase of a gun.”

“So, now move to the third text, in which he posts that he’s looking forward to a party at school,” says Paulson. “They charged him with that. They tie together two texts they know are ridiculous, but decided that somehow bundled with this excitement about an upcoming school event, together, they constitute a very serious crime.”

Paulson argues the law is on Daniel’s side.

“The Supreme Court has made clear that it has to be very specific, very definite and imminent,” says Paulson. “And there’s nothing specific in terms of a threat from this young man.”

The U.S. Supreme Court is expected to share its opinion by the end of June.
Regardless of the decision, our legal experts say the case brings attention to the fact that mens rea, which translates to “guilty mind,” is a fundamental principle of American law. That’s something the prosecution in Daniel’s case will have to demonstrate and Judge Carolyn Swift will have to rule on at his trial in July.

I will be there.

Email: Celine.McArthur@winknews.com

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