Thursday, November 18, 2010

What INTERNET PRECEDENTS Are Set by Raphael Golb's PRISON SENTENCE? Dead Sea Scrolls

(And yes, today the Court system DOES seem like a lottery)

It is my understanding, please correct me if I'm wrong, that even a felon can be eligible for rooming with other non-violent, minimum-security inmates. Why choose the most physically dangerous place to send skinny 125 lb bookworm Raphael Golb, fellow Jew, and son of an academic rival? Do they throw in minnows like him to provide easy victims for the sharks?

For some inmates, Rikers Island is as good as a death sentence (or nearly)- or at least, continual fear thereof- I was not aware that beatings, death and rape, or the torture of non-stop expecting it- are on the lawbooks as the punishment for blogging and emailing- or even "identity theft" for that matter. Or even (as they claim) begrudging a professor a $650 lecture.

Many of the newspapers were present for the sentencing; I briefly discuss their reports at the end of this post.**

For now I just want to mention a few stray things; and then make some guesses about what PRECEDENTS this conviction may set. I read in the papers that covered the trial that Raphael Golb's case is the first of its kind, that no one has ever been convicted of a "crime" for doing what he did. This tells me that Raphael Golb's case will probably set a precedent for internet conduct.

For readers who do not know about this case, I have included a brief summary at the end of this post.*


The District Attorney's office sought up to 4 years for Raphael Golb, upstate in Rikers Island State Penitentiary. In fact he was sentenced to 6 months in that prison, all charges concurrent. 

And in fact after the sentencing, rather than let Raphael wait for the Appeals office to open in 2 hours- where it was known that Raphael would most certainly be freed on bail immediately- it was ruled that Raphael should be shackled instantly and sent upstate on the next bus to Rikers Island State Penitentiary, before the Appeals office opened, so to be in Booking overnight, due to bureaucracy. Interesting trick, I suppose.  Was this just to be nasty, two hours before Appeals bail, and a week before Thanksgiving? Or is Raphael Golb such a dangerous felon, that the streets of New York are not safe until he's in the State Penitentiary?  To us it seems ludicrous; but maybe the prosecution actually is afraid of him.

About the harsh sentencing, Raphael Golb's attorney David Breitbart told journalists, "This is misuse of the power of imprisonment."

I like to compare Raphael Golb's 4-year recommended sentence to that of a man I once met who also served 4 years in the same State Penitentiary, for the rape of a woman he noticed jogging along the parkway. The rest was parole. Also he had a lifelong criminal history beginning as a juvenile.

After the trial, Breitbart repeated to journalists, what he had already told the judge before sentencing:
"There are only three reasons for sending someone to prison." First, as a "message to the community," second, to prevent the person from doing the same thing again, and third, as "punishment." 

As for the first reason, Breitbart argued that the trial has been covered in all the major papers, so "the community" has indeed gotten the message. For the second reason, Breitbart said that Raphael will not do this again. And for the third reason, Breitbart pointed out that Raphael's already been "punished," by having his law license revoked.

Does the prosecution team really, truly believe that Raphael Golb will ever use someone's name in an email again? ("Prevention," Breitbart's second criteria for prison, seems to me to have been accomplished.) 

It looks more like the prosecution team just got really mad at Raphael Golb, and wanted to give him as much punishment as possible (Breitbart's third criteria for prison). I can well understand why Dr. Lawrence Schiffman himself got angry; but I simply cannot understand why prosecution officials themselves appeared to be so mad, at least as it appeared to me; including asking the judge for the severest prison term. What they did just seems unjustifiably "mean." Maybe it was just an illusion; or maybe I'm just naive, maybe it's just the way the prosecution always works.

The prosecution said that Raphael Golb "continues to attack," to violate his orders of protection against his accusers in the case. I don't recall him giving a specific example. In response, Raphael Golb's lawyers answered that Raphael Golb has strictly obeyed these orders of protection the entire time, and has been cooperative in every way.

The prosecution said that Raphael Golb "lied" on the witness stand, for example, by telling the court that he was "coerced" during his arrest to submit to interrogation without a lawyer. Maybe I missed something; but all I remember hearing, in Raphael Golb's testimony, was that the arresting policeman told Raphael that if he spoke with the Assistant District Attorney right away (now prosecuting attorney), "I could go home." I believe Raphael; and that is not coercion; I would call it, maybe, enticement, feeding into Raphael Golb's fear of spending the night with that convicted felon he had just been put into a cage with, or others.

I believe the prosecutor said one of the biggest things that made the NYU Deans realize the fake "confession" was parody, and not an actual confession, was the small "p" in the Professor's signature. I did hear testimony about that "p," but I don't recall it being cited by anyone as a major reason they knew the email was a hoax.

Another thing that puzzled me concerned the one single item the jury found Raphael Golb innocent on, Jeffrey Gibson; nonetheless, the prosecution asked the judge to extend Gibson's order of protection anyway. Fortunately she did not. (If you recall, the only thing that distinguished Gibson from the others is that Raphael said he "kind of likes the guy" and expressed that they could "solve their differences over a cup of coffee.") Since there's no more order of protection for Gibson, I have to admit I very much wish that "cup of coffee" could actually take place.

I read in the papers that covered the trial that Raphael Golb's case is the first of its kind, that no one has ever been convicted of a "crime" for doing what he did. Libel is one thing, two felonies, another. His attorney told the judge today that Raphael is a "unique defendant."

That tells me, then, that Raphael Golb's case will probably set a precedent. For all cases to come; in the United States; and, who knows, perhaps, eventually, elsewhere in the world. I venture to say that this may even be a landmark case. I believe that people should pay closer attention to this case- if they are interested in what on the internet is now legal or illegal to write.
And especially- what will happen in Appeals. Appeals Court will tell us the real story.

If I knew more about the law, I would have quite a list of horrors to predict, unleashed by Raphael Golb's conviction; but let me take a stab at it. If anyone sees errors, please drop me a line. Also if you think of more precedents.

Rikers Island State Penitentiary, New York,
where Raphael Golb is being transported as I write this,
to be safely isolated on an island.
Appeals Court set 
Raphael Golb Free on bail. 

Anytime someone powerless attempts to accuse someone who is powerful, or in charge, or who has a lot of money- how now, dare the powerless question the powerful?

Ron Kuby, one of Raphael Golb's attorneys, told journalists after the sentencing:

"The internet is now safe for elite scholars who wish to avoid criticism. Cy Vance's (District Attorney) office asked for a term of up to 4 years in an upstate prison for the crime of [and here I think he said] blogging." (Admittedly it was not specifically blogging.)

It is significant that this is an internet case. People regularly refer to the internet as "the wild west," where people take other people's names casually and say what they want on fake blogs and so on. In fact people say about this case, that Raphael "just got the wrong person mad."

I do not know how many laws exist at present to control this conduct on the internet, but I was under the impression that internet hoaxes have far outpaced the law. I know that most of the writers who are in prison now are internet people- bloggers (though mainly for not revealing their sources).

It's all so new, that this conviction, and this sentencing (prison time), and this new definition of "identity theft" no longer tied to monetary theft- whatever happens to this conviction in Appeals Court will determine a great deal of what then will happen to all of us on the Internet.

What am I allowed- and not allowed- to put on the internet now? Until- or if- the Appeals Court overturns Raphael Golb's conviction, the bar has been lowered enormously. What counts now as "criminal" has been sweepingly expanded. Also expanded are definitions of "identity theft" in the criminal sense, without financial theft (as in this case, "identity theft in the second degree," a felony). (If you tell me that the whole $650 lecture thing is the real reason it was a felony, I will laugh at you.)


Raphael Golb said often in his testimony that he had no idea what he did would ever be called a "crime." When a website he published on, told him that he had been accused of a crime, Raphael said he assumed it was a hoax.

I'll interrupt and point out, off-topic, that even having just been handcuffed arrested, and put in a "cage" with a convicted felon of whom he felt afraid- the fact that Raphael Golb told his interrogator, the Assistant District Attorney (now prosecutor) "I'm afraid you might tell Dr. Schiffman, please don't tell Dr. Schiffman what I said, I hope you'll use your wisdom" seems proof enough that Raphael was in total confusion as to what was happening.

To continue: Throughout the interrogation, Raphael Golb kept saying "I'm afraid you might tell Dr. Schiffman what I said, and then he'll sue me." Raphael said this repeatedly. Even the interrogator said, in an exasperated tone, at least a couple of times, something along the lines of "I wish you'd stop calling this a civil matter" (although he told Raphael at least twice that there were no charges against him, even when Raphael asked). But Raphael continued to speak of his fear of being sued, showing that- even while arrested, in handcuffs, having been in a "cage" with a frightening convicted felon, and in interrogation by the law, and afraid of spending the night in jail- Raphael still believed it was a civil case.

Raphael also expressed fear that what he said "might be used against my father," indicating to me that Raphael believed this interrogation was about the scholarly rivalry between Dr. Schiffman and his father. While Raphael was telling his interrogator, in great detail, about the Dead Sea Scrolls debates (going on about it for at least an hour), Raphael referred to some documents and told the ADA, "I don't have them with me- but you can get them in the library." Raphael seemed to think the Assistant District Attorney was asking him about- most interested in- the Dead Sea Scrolls themselves.

Off-topic again: all this is, to me, more proof of how completely befuddled Raphael Golb was, as to what was happening. At his arrest Raphael didn't even ask for a lawyer. That's befuddled enough right there. When interrogated about the emails, he did say he didn't write them. These denials- at the time of Raphael's arrest by six armed policemen in his bedroom, on two hours sleep, handcuffed, having been in a "cage" with a frightening convicted felon, and afraid of spending the night in jail- were later used as "proof" by the prosecution that Raphael must always lie, and thus must have also lied in his testimony on the witness stand, though Raphael immediately testified he wrote everything they said.

Here's my personal opinion:
It never crossed Raphael Golb's mind that anything he was doing might be "criminal"; not even- as I think I have just demonstrated- not even while in handcuffs, being in a "cage" with a frightening convicted felon, and being interrogated in the District Attorney's office and worried about jail.
If Raphael thought it was criminal, he certainly would not have done it. As his attorney David Breitbart pointed out, Raphael is not and never was a "criminal."

In my understanding, the irony is: at the time Raphael Golb was doing it, IT WAS NOT "CRIMINAL."

That's because, at least according to the newspapers I read, Raphael Golb's case was the first case in the United States (maybe other countries also?) to DEFINE what he did as "criminal." (That's called a "self-referential" paradox.) 

That is why it is imperative for us to watch the Appeals process carefully. Do not forget this case. What happens next is the MOST important part- for all of us.


From now on, at what point can making an accusation possibly lead to a State prison sentence, rather than a civil lawsuit such as defamation or libel? How about whistleblowers, will they be protected anymore?

What is, or is not, a crime on a computer now?

At what point can sending a non-threatening email (maybe just an email "intending to annoy") now lead to a State prison sentence?

At what point can opening up an email account- even if I never use it- now lead to a State prison sentence? At what point am I not allowed to have a "private joke with myself" (perhaps also Auto-Mail Sender).

At what point can a parody (sarahpalin2 @ "gmail') lead to a State prison sentence? The judge told us today in court that, Tina Fey aside, "it is still a crime to imitate other people."

At what point can a random guess at someone's intentions lead to a State prison sentence?

At what point can "intending" to "obtain a benefit" possibly lead to a State prison sentence?

At what point can any "intent" to "annoy" now lead to a State prison sentence?

Anytime anyone says anything about me that I don't like, or uses some parodied form of my name, I might now be able to send them off to the State Pen?
Especially if I have the power, the cash or the influence?

How restrictive can a definition be, to indicate a "criminal" charge?

How complex a scholarly debate is a "jury of my peers" allowed to rule on?

I'm a blogger. Can it happen to me?

As far as I could tell, what caused Raphael's misdemeanor to turn into a felony, was that he "intended" for Dr. Schiffman not to receive $650 (from a proposed lecture; that is, $650 not taken from Schiffman, but to be gained additionally. Actually, Dr. Schiffman did receive the $650). An intention for $650 seems a rather low amount for a felony. I'm wondering how low a sum, not lost but not gained, could qualify as a felony.

Brief SUMMARY of this case:

*Raphael Golb was convicted of two felonies (and 28 misdemeanors), primarily for sending out a fake email "confession" from a prominent scholar, Dr. Lawrence Schiffman, to draw attention to the fact that the scholar had, Raphael says, plagiarized his father; reopening two plagiarism charges made by others 15 years ago. This controversy takes its place in a sea of bitter and personal debates in the Dead Sea Scrolls scholarly world.

Raphael Golb was arrested by six armed policemen for "intending" people to believe that Dr. Schiffman himself had written the "confession"- "Identity Theft." (Some of the definitions involved words like "intending to:" "obtain a benefit," "annoy" etc.) Furthermore, "intending" for the emails to cause further damage, by possibly (but not actually) causing Schiffman's $650 lecture to be cancelled, turned this misdemeanor into a felony.

Raphael Golb described this "confession" as a "parody," which he said he wrote to sound "purposely outlandish," rather than wanting to make people think it really was Dr. Schiffman. Even the Dean described the email as "weird," and Dr. Schiffman said many colleagues approached him saying "What is this?!" This sounds to me that readers indeed found the emails "outlandish."  
This "confession" referred readers to a link to Raphael's website, where he demonstrated the plagiarism, under an (I believe) legal pseudonym. Witnesses for the prosecution admitted, if I understood correctly, that they had already suspected this pseudonym belonged to Raphael Golb, even before the "confession."

Another prosecution witness said- twice- of Raphael Golb's various emails and blogs from before their investigation began- "It doesn't take a genius to guess it was the same person." It sounds like the prosecution team was pretty sure it was Raphael Golb from the beginning, especially since the targeted investigation of Raphael began then.

Most of the misdemeanors involved other people also. Most noteworthy: Some of these convictions, carrying State Prison terms, are for email accounts Raphael Golb opened but never used (as the prosecution agreed); And I have 2 posts about Rabbi Jonathan Seidel's name, where I demonstrate much "reasonable doubt." Each of these 28 other charges have a 3-month State prison sentence (concurrent). The 2 "Identity Theft" felonies, against the son of an academic rival, carry 6-month State Prison sentences (concurrent).

** NEWSPAPER accounts of the Sentencing, Brief Analysis:
The case is complex beyond analysis, and the journalists are not specialists. But by the sentencing, a lot of newspapers were beginning to get it right. I think news runs a bit on what sells, and a Rikers Island prison sentence is quite salacious. The press, drawn by blood, would want to make the most of this. The press does its best work when blood is involved.

This I feel to be the best report that I read. From AP:
THE SENTENCING: Associated Press, Jennifer Peltz, 11/18/10

The NY Daily News (smile), and most other reports, did pretty well. And most reports (not all) came across without bias. I noted, though, that some reporters still seem to think Raphael Golb was convicted, besides "identity theft, for "libel" (which is a civil case, not criminal). These reports used all that old vocabulary again: "vicious anonymous attacks," "trash," "discredit their work" etc. In fact I'm sure most of the general public believes Raphael's conviction was mainly for "libel." (I address this misunderstanding in most of my posts.)

I am an English teacher, and all my information and interpretations come from what I witnessed at the trial and read online. I am not any kind of expert in law, or scholarship, so if you see any errors, please drop me a line.