State to dismiss Facebook charges
NEW CUMBERLAND — The state of West Virginia is asking that the charges against alleged Facebook provocateur David Jones be dropped.
The request is in response to a motion to dismiss filed by Jones’ attorney that asserted Jones’ Sixth Amendment right to a speedy trial.
“While the state disagrees that it has violated the defendant’s right to a speedy trial, it does agree that this matter should be dismissed without prejudice,” Marshall County Assistant Prosecutor Adam E. Barney said in his response.
Barney, appointed special prosecutor in the case, went on to say that the state does not intend to indict Jones, 48, of New Cumberland.
“I reviewed the case as a whole, and it was just a case that it was a proper exercise of my prosecutorial discretion to not indict,” he said, declining to elaborate.
Since charging Jones with two felony counts of retaliation a year ago, the state has held three grand jury sessions without indicting him. Jones’ case was bound over to Hancock County Circuit Court after a visiting magistrate found there was probable cause that a crime had been committed.
“We think it’s great news,” said Wheeling attorney Philip Sbrolla. “We see it as an exoneration. We never believed there was a basis to file the charges in the first place.”
Jones was charged with retaliation in connection with Facebook posts he wrote in 2014 about then-Delegate Randy Swartzmiller and then-Circuit Court Judge Martin J. Gaughan. The charges were filed in July 2015, about a year later, after Hancock County authorities investigated other Facebook comments by Jones.
Jones was arrested on June 26, 2015, and spent 19 days in the Northern Regional Jail in Moundsville until his bond was reduced. He originally was charged with making terrorist threats, but those charges were dropped and refiled as retaliation in connection with:
¯ A July 7, 2014, post, in which Jones wrote that heroin users should go to Gaughan’s home, “take what you want, trash the place and terrorize HIS family. He is okay with it.”
¯ An Aug. 24, 2014, post, in which Jones wrote that “criminals and crackheads” should go to Swartzmiller’s home and “do everything you have done to terrorize other citizens of Hancock County. Help yourself to his stuff. Obviously he does not care.”
Jones also included a Google Maps photo and the address of Swartzmiller’s house.
Sbrolla said the comments were meant as “political hyperbole” and, thus, protected by the First Amendment’s guarantee of free speech. The prosecution said Jones’ comments met the statutory definition of retaliation because he encouraged other people to commit violence against the officials.
But the statutory standard for retaliation in West Virginia has since changed.
Earlier this year, the House of Delegates and Senate unanimously passed, and Gov. Earl Ray Tomblin signed, a law that changed the standard under which someone can be charged with the crime of retaliation.
The new law, which took effect in June, prohibits such a threat only when it is “directed at inciting or producing imminent lawless action of a violent nature that could cause bodily harm and is likely to incite or produce such action.”
The “imminent lawless action” standard is based on the precedent of two Supreme Court decisions from 1969 — Brandenburg v. Ohio and Watts v. United States. In both cases, the Supreme Court reaffirmed the principle that speech that is threatening in the abstract is protected by the First Amendment.
Barney said the legislature’s action was a factor in his decision not to seek an indictment, but not the only factor.
“The amended statute was not necessarily dispositive, but it gave you an idea of the intent of the legislature,” he said.
Under the West Virginia Rules of Criminal Procedure, Judge Jason Cuomo can grant the motion to dismiss, or dismiss the case on his own order.
(Huba can be contacted at shuba@reviewonline.com)