Andrew Wolfson
Courier-Journal
If you don't want to do the time, stay offline. Or at the very least, don't “friend” your probation officer.
Convicted of possessing methamphetamine and Ecstasy, Scott W. Roby learned that the hard way. The Louisville man had his probation revoked this month — and was sentenced to two years in prison — in part for violating conditions that required him to stay alcohol-free and out of bars and liquor stores.
Roby had invited his probation officer to be his friend on Facebook, then Roby posted pictures of himself drinking — including one in which he was holding a beer while posed next to “Buddy Bat,” the mascot for the Louisville Bats, said prosecutor Dinah Koehler.
In another Facebook post, according to court records, Roby asked: “Anyone wanna go get smashed tonight one last time before the end of the Earth?”
Judges, prosecutors, defense attorneys and the Kentucky Department of Corrections say that with increasing regularity, offenders on probation are losing their freedom or incurring other sanctions after posting pictures online of themselves clubbing, using “beer bongs,” posing with firearms or bragging about out-of-town trips they've made without their probation officer's permission.
Louisvillian Donnie Lee Griffith Jr., 22, for example, who also was on probation, went to prison last year on theft and burglary convictions after posting a Facebook photo in which he was holding a jar of clear liquid over a caption that said, “Moonshine rocks and so do I!”
In another post, according to court records, he reported that he was “drinking like a fish.”
Chelsea Otto, also 22, got 60 days tacked on to her 1-year sentence for cocaine possession in 2009 after she boasted that she drank “like 20pina coladas” during an unauthorized weekend jaunt to Clearwater, Fla.
In another post, she exclaimed, “We SHUT Hotel down!” referring to a 4th Street Live! nightclub.
Jefferson Circuit Court Judge Audra Eckerle said she's revoked probation for two offenders in part for their Facebook posts in recent years, including one who brandished a firearm in violation of his probation rules.
Assistant Commonwealth's Attorney Bill Adams, who prosecuted Otto, said he's had a half-dozen cases in which offenders on probation incriminated themselves through social-media sites.
Probationers are required to stay away from alcohol, drugs and firearms and out of places that derive most of their revenue from alcohol sales.
The state doesn't track revocations triggered by social-media postings, but Lisa Lamb, a Corrections Department spokeswoman, said officers have used social media heavily for four years, both to find absconders and to monitor offenders on probation.
One officer, Shannon Blalock, who works out of the department's Murray office, does nothing but troll online and train other officers to do the same.
Blalock said some judges peruse social-media sites themselves, looking for violators.
Facebook indiscretions
Kentucky is not the only place where offenders are getting kicked off probation for implicating themselves online.
In Connecticut, according to press accounts, a woman convicted of killing a teenager while driving drunk had three years added to her sentence in 2009, in part because she was shown posing with alcohol in virtually every picture on her Facebook page — “worshipping at the altar of alcohol, debauchery and lewd behavior,” a prosecutor said.
The ABA Journal recently reported that the first thing some criminal-defense lawyers tell clients now is to shut down their Facebook accounts.
In Jefferson County, judges and lawyers say the stunning thing is that offenders often disclose their indiscretions online even knowing their probation officer is watching.
Griffith, for example, was thrown out of a pretrial diversion program after friending his officer, Olivia Payne, then posting photos of himself out of town and drinking at nightclubs. “Get a clue, strap on yo' shoes and get your --- to the Pink Door,” he said in one post.
When Jefferson Circuit Judge Susan Schultz Gibson gave Griffith a choice of shutting down his Facebook page — or continuing it with Payne still looking over his shoulder as his friend — he chose to keep it.
Then he posted a report saying he'd been arrested for drunk driving, which Payne read. That was the last straw for Gibson, who revoked Griffith's probation and sent him to prison.
Why would somebody tell on himself in what amounts to an online confession?
“That is the $100,000 question,” said Louisville attorney John Dolan, who defended Griffith.
Assistant Commonwealth's Attorney Ryane Conroy, who prosecuted him, suggested that it is a “<snip>iness that they won't be held accountable.”
Other lawyers chalk up such cases to sheer stupidity.
Griffith, who was released on shock probation after serving about six months behind bars, didn't respond to messages left on his Facebook page, which no longer shows him drinking.
Otto, who has moved to St. Louis, also didn't answer messages left on her now-sanitized page.
Roby is in prison and his lawyer, Scott C. Cox, said he had no comment, other than to note that his client's Facebook postings were only part of the reason his probation was revoked — as was true in some of the other revocations. Roby also was cited for failure to report to his probation officer and changing his address without notifying the officer.
The posting 'high'
Experts on the psychology of social media, including Joseph Mazer, an assistant professor of communications at Clemson University, said it is so easy to post information online that the convenience “overrides a person's ability to critically consider the reach of social networking sites.”
Kieron O'Hara, who studies issues of trust and privacy online as a senior research fellow at the University of Southampton in the United Kingdom, said, “Posting is such a ‘high' that people will often ignore what they really know is their best interests.
“We shouldn't underestimate how pleasurable and addictive some people find social networking” — and that in turn causes people to “give their privacy away so cheaply,” he said in an email.
Writing last month in a blog for the Houston Chronicle — “Facebook and the 5th Amendment” — former prosecutor Murray Newman said “bad posting decisions” are more prevalent among younger defendants, who seem to think they'll be more popular among their peer group by showing how “thuggish” they are.
Postings are fair game
But Newman said Facebook confessions aren't limited to the young and foolish.
“Drunk-driving defendants of all ages seem to enjoy taking pictures of themselves at closing time looking like Keith Richards on a bender,” he wrote.
In an interview, he said, “I tell clients to consider Facebook their own personal probation officer and that it will report you for the slightest violation.”
Civil libertarians seem to have no problem with corrections officials monitoring social-media sites.
“To the extent individuals voluntarily post information on social-networking sites that are accessible to others, the use of that information to establish a violation of probation or parole is likely to withstand any claims of invasion of privacy by the poster,” Bill Sharp, a staff attorney for the ACLU of Kentucky, said in an email.
He added, however, that courts must be careful to verify the defendant really was the poster. He cited a recent decision in which the Maryland Supreme Court held that a judge improperly admitted information from a social-networking site where the only evidence that the page belonged to a witness was that it contained his birth date and photograph.
In another recent Maryland case, a judge said photographs of a man on probation for a drunk-driving death — one showing him sitting next to a nearly full bottle of rum and another next to an empty bottle — didn't on their own justify revocation, absent evidence he drank the alcohol, which he denied.
Still, Newman advised, “Just remember that because Facebook is fun and gives you the opportunity to act like a high-schooler again doesn't mean that you necessarily should.”
