What is the cost of free speech? The legal argument is black and white

A little more than a week after starting her sentence, the debates continue. As Michelle Carter’s legal team prepares an appeal of her involuntary manslaughter conviction, the nation considered the legal and social issues raised by her case. (Bristol County Sheriff's Office)

If the conviction of a young woman who ordered her boyfriend to “get back in” an exhaust-filled pickup that killed him is heard by the U.S. Supreme Court, some lawyers say she has a good chance the ruling will be overturned.

The Supreme Judicial Court (SJC) recently upheld the guilty verdict in the novel case that raises questions about assisted suicide and free speech.

Michelle Carter, 22, is serving a 15-month sentence for urging Conrad Roy III to commit suicide. Carter was 17 when Roy, 18, took his own life in his pickup truck in a Fairhaven parking lot nearly five years ago.

Last summer, Juvenile Court Judge Lawrence Moniz ruled Carter caused his death. In convicting the teenager of involuntary manslaughter, the judge focused his ruling on Carter’s text to Roy to “get back in” after he climbed out of his truck as it was filling with carbon monoxide and told her he was afraid.

The judge said those words constituted “wanton and reckless conduct” under the manslaughter statute.

“She did not issue a simple additional instruction: Get out of the truck,” the judge said.

Within days of the unanimous ruling by the seven SJC justices, Carter’s lawyers, retired U.S. District Court Judge Nancy Gertner, and Daniel Marx, both of Fick & Marx LLP, filed an appeal with the nation’s top court.

“It’s a longshot, but a lot shorter longshot than most cases because it raises very substantial speech issues,” said Harvey Silverglate, a Boston criminal defense and civil liberties litigator. “It’s a case that can be argued equally well on both sides. But the lawyers for this girl have the better argument. If it’s about speech in a criminal case, where every doubt has to be indulged in favor of the accused, then this conviction cannot stand.”

The question for the Supreme Court justices, Silverglate said, is whether the words Carter texted to her boyfriend are classified as protected speech or criminal speech.

“My view of the First Amendment is quite broad,” he said. “And I agree with the defense lawyers here.”

Carter and Roy lived in Massachusetts but met in Florida in 2012 while on vacation with their families. Their long-distance relationship consisted mainly of texting and telephone calls.

Both teens struggled with depression. Carter had also been treated for anorexia, and Roy had made earlier suicide attempts.

A frequent subject of their communications was the victim’s fragile mental health, including his suicidal thoughts.

“I thought you wanted to do this,” Carter texted. “The time is right and you’re ready, you just need to do it! You can’t keep living this way. You just need to do it like you did last time and not think about it and just do it, babe. You can’t keep doing this every day.”

Roy responded: “I do want to, but like I’m freaking for my family. I guess.”

The first hurdle Carter’s attorneys face is whether the high court will hear the case. The Supreme Court hears 100-150 of the more than 7,000 cases it is asked to review annually,  or between 1.4 and 2.1 percent of all the submissions, according to the court’s website.

Marx said the two major issues in this case most likely to get the Supreme Court’s attention are due process and free speech.

“But I don’t think they are the most important issues in the case,” he said. “The most important issues have to do with the facts, the evidence, and the fact that Michelle Carter never killed Conrad Roy.”

Peter Elikann, the former chairman of the Massachusetts Bar Association Criminal Justice Division, said the case is unprecedented. He questioned whether anyone has ever been convicted of manslaughter based on text messages.

“I was skeptical on whether someone could be convicted by mere words,” he said. “Typically, someone has to be actively engaged in assisting someone by holding a weapon or physically helping them commit suicide. It is not typical to convict someone who acted as a cheerleader 30 miles away.”

In its 33-page ruling, the SJC cited a 203-year-old case, Commonwealth of Massachusetts v. Bowen. In that case, the defendant was in the adjoining jail cell of the victim, whom the defendant pressured into hanging himself. While Bowen, who was charged with murder, was acquitted by the jury, the legal principle that procuring a suicide “by advice or otherwise” may constitute a homicide, the SJC wrote.

Elikann said he understands public opinion is clearly against Carter.

“The public is justifiably appalled by her actions and are pleased she’s in jail for this act,” he said. “But the legal community is very skeptical over whether the law backs the conviction and many of us would love to see the court weigh in on this and determine the issue once and for all.”

These are relatively new issues, Elikann said, particularly because of technology.

“The fact that you can text message someone, encourage them to commit suicide, and suddenly be convicted of a homicide indicates we are in a whole new world based on technology.”

The SJC was clearly wrestling with the fact that no one knows where the line is drawn between encouraging another person to commit suicide and a sympathetic case, according to Marx.

“The SJC opinion said there are clearly some cases that should not be prosecuted, like a terminally ill spouse who is suffering from ALS or a painful cancer patient who should be allowed to die with dignity,” he said. “But right now, there is nothing in Massachusetts law to stop a prosecutor from seeking an involuntary manslaughter charge if something offends their sensibility.”

Walter Costello, a North Shore lawyer who practices in Salem and Haverhill, said the public is outraged because Carter was working to convince him to go through with the suicide while the victim was resisting.

“That’s what put it over the top, and caused the criminal complaint to be filed,” he said. “But it will be a real test because she wasn’t there when he killed himself and the question is can you commit a crime by words alone.”

One thing is certain, Marx said. The Legislature must pass a law which says what is and is not allowed in Massachusetts with respect to assisted suicide.

“It should not be individual prosecutors deciding on a case by case basis,” he said. “It should be something the Legislature decides.”

Material from Associated Press was used in this report. 

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