Penn State student and Daily Collegian photographer Michael Felletter finally got the news he has been waiting a year and a half to hear — charges filed against him stemming from the 2008 riot were dismissed.

In a March 11 press release, Centre County District Attorney Stacy Parks Miller announced she filed a motion to drop an appeal for the case, ending a protracted legal battle against Felletter.

“For almost two years now, I’ve been put through this judicial system, and now it is finally done,” Felletter (senior-visual journalism) wrote in an e-mail. “I feel closure.”

Felletter’s sense of closure comes after he was charged with five counts of misdemeanor failure to disperse and one count of misdemeanor disorderly conduct after taking pictures of a riot that overtook downtown State College after Penn State’s football victory against Ohio State University on Oct. 25, 2008.

Felletter’s case was dropped in January 2009 and re-filed in March with one count of failure to disperse bound over for trial. Centre County Judge David E. Grine dismissed the remaining charge in July 2009, citing unclear evidence. Former Centre County District Attorney Michael Madeira then filed an appeal to the State Superior Court following the dismissal, where the case has remained — until now.

Felletter’s attorney Andrew Shubin said he appreciates Parks Miller’s “careful and considerate review” of the case’s record and the constitutional principles involved.

Parks Miller stated in the press release that after reviewing the facts of the case and the issues surrounding it, she found reason to discontinue the appeal. In January, Parks Miller submitted a letter to the Superior Court of Pennsylvania stating that she did not intend to file a reply brief in Felletter’s case.

The letter was filed as a response to Shubin’s contesting the appeal of the case filed by the district attorney, though it did not necessarily mean she was dropping the charges. During her campaign last year, however, Parks Miller called the case a “waste of resources,” Felletter believed it was only a matter of time before the charges were dismissed.

“I kind of knew it was bound to happen, but it was just always there, hanging over my head,” he wrote. “Now it’s finally over and I feel relieved.”

BELLEFONTE — District Attorney Stacy Parks Miller will not pursue a criminal case against a student photographer charged with ignoring police orders to leave the 2008 State College riot that he was covering for the Daily Collegian newspaper.

In a prepared statement Thursday, Parks Miller said it’s in “the interest of justice” that she not continue the appeal started by her predecessor Michael Madeira.

Madeira had approved charges of inciting the crowd of thousands that gathered in Beaver Canyon after Penn State’s football team beat Ohio State that year. Police also charged photographer Michael Felletter with not leaving when police ordered.

Felletter was on assignment for the Penn State student newspaper. Police said that by taking pictures with large equipment, he was encouraging the crowd to act more rowdy.

The charges were thrown out by a judge, but Madeira appealed the case to the state Superior Court in August. Thursday, Parks Miller sent a letter to the Superior Court saying she will not continue the appeal.

“I’m really proud of him for fighting this fight and for not backing down and for understanding,” said Felletter’s attorney Andrew Shubin. “It shows a level of sophistication for a college student to understand the level of importance for fighting this fight and not giving in. I really do think that Michael understood he was fighting this not just for his own career but for the principles.”

Shubin, who represented Felletter for free through the ACLU, has been fighting these charges since Felletter’s arrest, saying the arrest and charge are violations of Felletter’s First Amendment rights.

He said he appreciates the “careful and considerate review of the constitutional principles” by Parks Miller, who, in her campaign against Madeira last year, cited this case as one with which Madeira was wasting resources and exercising poor judgment.

The end of this case, Shubin says, “validates the long-standing First Amendment protections afforded by the courts to the media and their vital role in collecting and disseminating news.”

Parks Miller said in her press release that “while the police always have the ability to tell people to disperse in dangerous crowd situations and people should comply with those directives for safety reasons, based upon the specific facts of record in this particular case, we have chosen to discontinue this appeal.”

Read more: http://www.centredaily.com/2010/03/12/1849263/parks-miller-dropping-case-of.html#ixzz0hyOeCXMF

Sentencing guidelines for that kind of crime call for probation to 30 days in county jail — with one huge exception.

If you are caught selling drugs within 1,000 feet of a school, state law says prosecutors can seek a two-year mandatory minimum sentence.

“The purpose was to discourage and penalize drug dealing near schools and near schoolchildren,” said Mark Bergstrom, director of the state Commission on Sentencing.

But the law also encompasses any location within 1,000 feet of colleges, universities, school bus stops, or any property owned by colleges or schools.

That includes the downtown apartment where Marion lived — where he sold the roughly three joints of marijuana. If he’d been outside a “school zone,” Marion would have needed to sell more than 10 pounds of marijuana to receive a sentence above two years.

“The problem here is we have a major university and some kids do experiment with marijuana at major universities,” said Chief Public Defender Dave Crowley. “It’s college kids, for the most part, selling to other college kids, very, very, very small amounts. Do you really want to ruin people’s lives for that stupid mistake?”

Earlier this month, the sentencing commission released a 490-page report on a two-year study of, among other things, school zone mandatory sentences.

Its recommendation: Repeal it.

The reasons: “First, 1,000 feet of a zone really does cover a lot of territory, especially in urban areas,” Bergstrom said. “You’re really covering blocks and blocks that don’t seem to have a connection to the school at all. It’s very broad.

“The second thing, it didn’t seem to have that connection with the (law’s) original purpose.”

Bergstrom said there are other tools that can be used to punish people who sell drugs to children. A sentencing enhancement can be enforced at the discretion of a judge and would carry about the same extra jail time as the school zone’s mandatory minimum, which allows judges no room to sway.

“I think that we all knew that these mandatories didn’t work for any legitimate purpose,” said State College defense attorney Andrew Shubin. “We knew that they didn’t deter crimes. … We all know that we should not be using school zone mandatories when two consenting college kids are exchanging drugs in a dorm room.”

Debating the mandate

A map of State College shows a majority of the borough is within a school zone. Even outside of the borough, plots of land owned by Penn State, churches with day care centers, unmarked school bus stops — even during summer vacation — all are considered schools. Anything within three football fields of them is within a school zone.

“It’s sort of hard to know exactly if you’re in a school zone or not in a school zone,” Bergstrom said. “So if we’re saying we want to provide a safe zone for kids, people should know what that zone is and it’s kind of hard to tell.”

If the legislature doesn’t want to repeal the law, the commission recommended a second option: Amend the law to reduce the “zone” from 1,000 feet around a school to 250 feet, and remove colleges and universities from the mix.

Centre County District Attorney Michael Madeira, who is on the sentencing commission as a nonvoting representative of the state District Attorneys Association, says that while the association has yet to take a position, he disagrees with the findings.

Madeira, as well as prosecutors across the state, says the school zone mandatory rule is a great tool that prosecutors across the state use to negotiate plea agreements.

“By suggesting that a school zone mandatory could apply, and therefore garnering a plea from someone who sold drugs … helps our system,” Madeira said.

If his office stopped using the school zone law, he said, “every defense attorney worth their salt is going to say, ‘Let’s go to trial. What do we have to lose? My guy’s going to get convicted anyway. Or if he gets convicted, he’s not going to do any more time.’ ”

The commission found that this practice floods jails with people who weren’t the intended targets of the law. And defendants sentenced to prison are much more likely to reoffend, it noted.

Shubin calls Madeira’s explanation for why he uses the school zone law “a victory of red meat politics over what’s right and what’s just.”

“Trials are a constitutional right, and it’s cynical to say ‘Let’s avoid them by instituting mandatories,’ ” Shubin said.

The report, which surveyed judges, prosecutors, defendants and attorneys, also found that school zone mandatory sentences were unevenly applied across the state.

“In some counties, it was used in every way possible and in other counties it wasn’t really used at all,” Bergstrom said.

The study showed the sentences were used most in Berks County, and least in Allegheny and Philadelphia counties.

The mandatory also makes no distinction between the type of drug or the quantity being sold. One-quarter ounce of marijuana draws the same sentence as a large quantity of heroin.

“To me, sentencing should be based on the type of drug, the quantity of drug, and it should be left to the court and not to the district attorney’s office,” said defense attorney Jason Dunkle.

Attorney Stacy Parks Miller, who is Madeira’s opponent in the Nov. 3 election, said the law had “a well intentioned purpose” but went far beyond that.

“Even though I fully support other mandatory sentencing provisions, including the mandatory sentence for drugs sold directly to a minor and mandatory sentences based upon the weight of drugs, I am not a fan of this mandatory,” Parks Miller said. “I prefer sentencing to be based upon actual facts of the case, not some geographical measurement of proximity of the incident to the border of property owned by Penn State University, which is often how we see it used.”

Trial comes at cost

Madeira said he believes those who wrote the law intended universities to be considered school zones, otherwise, “they wouldn’t have said ‘university.’ ”

But, he said, his office doesn’t typically enforce the mandatory sentence called for by the school zone law unless a case goes to trial.

That, defense attorneys say, has a chilling effect.

“When a prospective client is charged with delivery of drugs in the State College area, I tell them right away that the school zone statute may be applied,” Dunkle said. “I tell them that if we fight the case in any manner … you are going to state prison if we lose. It’s either plead guilty or face state prison. Someone with four cases, you’re looking at eight years. People who legitimately should fight a case simply won’t because of the fear of the school zones being applied.”

Shubin recalled one case in which a 19-year-old education major and honor student, who had never before been in trouble, was asked to do a “favor” for a friend who had sold him pot.

The student sold the friend some marijuana on two occasions. He soon found out the friend was working with police to arrange the buys to get himself out of a jam.

Shubin said he believed he had a good chance of winning if the case went to trial.

“None of these things mattered,” Shubin said. “All that mattered was that if I was going to test the case … they were going to ask four to eight years.”

Shubin said his client, unwilling to take the risk, pleaded guilty to a felony and spent six months in jail.

“He’s now in a community college, he left Penn State because there was really no sense in him being here,” Shubin said. “A kid that would have earned $60-$80- $90,000 a year as an educator … he’s afraid to even apply for jobs with a felony on his record.”

“The mandatories, in my view, very cynically gave the District Attorney’s Office the opportunity to take a probation case, scare the bejeezus out of kids who have a lot to lose and got them to be confidential informants and set up their friends, elders, colleagues,” he said.

Scott Marion declined to comment while he waits to hear if the state Supreme Court will hear his appeal on the use of mandatories in his case. His appeal argues prosecutors didn’t prove his location was 1,000 feet from Penn State because he was six stories up in an apartment building.

District Justice Carmine Prestia dismissed furnishing alcohol to minors and related alcohol violations against Tau Epsilon Phi after a preliminary hearing in Centre County Central Criminal Court. The State College Police charged the fraternity with misdemeanors following a summer party at the house. The Commonwealth called an eighteen year old student, who had been cited for underage drinking and disorderly conduct after being caught urinating in bushes, to testify against the fraternity in return for favorable consideration from the District Attorney’s office. The student testified that he drank several beers at the fraternity house. The court agreed with Attorney Andrew Shubin’s argument that there was insufficient evidence linking the fraternity as a corporate entity to any criminal wrongdoing and dismissed all charges.

We didn’t know it, but the First Amendment was on the line.

Students started out cheering and hoisting friends into the air and eventually began tearing down light posts and pulling out shrubs. If you weren’t blinded by pepper spray in the eyes, it was easy to see cameras flashing everywhere.

Many of those people were rioters themselves, clicking digital camera buttons to show their friends or snapping pictures on their phones to upload to Facebook.

Yet others of those people with cameras were professional members of the media. One of those media members was Michael Felletter, a photographer for The Daily Collegian who was doing his job as a photojournalist to capture what was happening that night.

Felletter — and every media photographer — had the right to photograph the riot. That night was one of the most newsworthy events at Penn State last year.

Charging Felletter in connection with the riot and saying his photography caused the crowd to become “more exuberant, excited and destructive” was an unreasonable shot at the First Amendment.

Though Centre County Judge David E. Grine dismissed the remaining charge against Felletter because of “unclear” evidence and did not cite First Amendment issues as a reason for dismissal, the ruling is still appropriate.

It’s still a ruling that cries victory for the First Amendment.

Felletter’s attorney Andrew Shubin, who acted on behalf of the American Civil Liberties Union, deserves commendation for his work in the case. Shubin called arresting a member of the press “un-American.”

We fear that Shubin’s clear understanding of the importance of the First Amendment is far different than District Attorney Michael Madeira’s, who is working to determine whether to appeal or re-file charges against Felletter.

Re-filing charges would be an egregious disregard for freedom of the press.

It’s time for the county to let this case go and to realize there never should have been charges pressed in the first place.

From the Daily Collegian, 7/28/09

PENNSYLVANIA — A photographer at Pennsylvania State University’s Daily Collegian was cleared of his remaining failure to disperse charge July 22 in a pre-trial motion after he was arrested last fall while covering a post-football-game riot.

“The Court does not believe that Defendant refused to or knowingly failed to obey dispersal orders,” stated President Judge David E. Grine in his order to grant Michael Felletter’s dismissal. “The Court believes that the arrest of Defendant was made in good faith by an officer who believed that he was doing what was necessary to keep the peace.”

In October 2008, Felletter was charged with several misdemeanors after he covered a riot on campus, during which police accused him of inciting the crowd by taking pictures of the participants. On March 4, a judge threw out Felletter’s disorderly conduct charge and four of his five failure to disperse charges.

“The testimony by Officer Argiro and Officer Pieniezek made it clear that rioters were becoming more disorderly around Defendant’s camera,” Grine stated. “That, however, is not Defendant’s fault, and is the responsibility of those who were at the riot and actually acting disorderly.”

During the riot, police asked Felletter to leave, at which point he identified himself as a journalist. Police still asked him to leave several times throughout the evening, threatened him with pepper spray, and eventually took his license and informed him he was under arrest.

Felletter’s attorney, Andrew Shubin, said he is extremely pleased with the results of the case but that because the charge was dismissed without a jury, Felletter could be re-arrested or the case could be appealed — both of which he says Centre County District Attorney Michael T. Madeira has threatened to do in the press.

By Catherine MacDonald, SPLC staff writer

© 2009 Student Press Law Center