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October 9, 2017 · OPINION

Prosecutor: Liberty High threats not criminal

Fauquier County Commonwealth’s Attorney James P. Fisher.
By James P. Fisher
Commonwealth’s Attorney

Last week, I was advised that a complaint was made to Liberty High School officials involving internet communications between 3 out of 6 juveniles who were actively participating in a computer program that permits users to send and receive group messages. While 6 juveniles were permitted to have access to the conversation that was set up in the program, 3 individuals carried the conversation with some inappropriate, and indeed upsetting remarks.

The conversation centered around another student at the school whom the 3 juveniles disliked for a variety of claimed reasons. The remaining 3 juveniles either did not participate in the online discussion or participated in ways that were nowhere near as problematic as the 3 primary users referenced above.

Given that the computer program that the juveniles used is somewhat unique and less known than other computer software applications like Facebook and Twitter, some explanation as to the program is necessary in order to understand the basics of how it works. First, the program is called “Discord.” It is relatively new, but as of last summer reportedly had about 11 million users worldwide. The program is primarily intended to allow for groups of users to carry on a messaging conversation where the users send and receive messages – which actually is nothing new to the computer world. What is new about is Discord, is that it is designed for users that are not only communicating, but also are engaged in playing online games.

The program allows users to form groups to play computer games and to communicate by voice as well as by written messages. The groups can be private and can be large or small. Users can post pictures, videos and chat while actively playing games. Perhaps, the program’s worst feature is that it seems to promote anonymous use such that people would say things they might otherwise be embarrassed by if their identity were known. This is the application that was being used by the juveniles in question.

Like any program used by computer, a user can capture a “screenshot” which is like a photo or snapshot of the screen that the user sees on their phone or computer when they are using it. The problem with screenshots and this particular program is that the screenshots can be hard to read and even more difficult to copy. This makes going through them in order to determine what was communicated and when it was communicated somewhat laborious, but it must be done in order to discern the entirety of the conversation that was captured by a screenshot.

A benefit of a screenshot however is that it preserves what was being communicated on the computer screen so that it can be reviewed in the future if one or more users delete the conversation. Many users will capture screenshots for “proof” that someone said something or shared something on the internet. That is what was done in this case.

Each screenshot is a page that contains multiple individual “posts” (which are the remarks made by a given person). A fourth juvenile who had access to the group conversation but had limited participation, captured screenshots of numerous pages of the conversation which took place primarily on September 26th and 27th.This person then gave the screenshots to the juvenile who was the subject of the conversation. In an interview with a detective, the juvenile said that he gave the screenshots to the other student, not to intimidate him but rather because he wanted him to know what was being said about him “behind his back.”

The person who was the primary subject of the conversation gave the screenshots to one of his parents, who reported the existence of the conversation to school officials. These officials then reported the matter to the sheriff’s office for investigation. This is basically how the matter came to the attention of authorities.

At some point, the parent of the child who was being discussed in the group chat chose to post a selected portion of the screenshots on Facebook. Those particular 10 + pages were shared from that point forward without any context. Without context (there are approximately 41 pages of screenshots) the 10 + pages that have previously been posted to the internet detail disturbing remarks about killing, murder et cetera. When the additional 30 pages of material are added and read in sequence the conversation is much more benign. In fact, it is largely “tough talk” which is at points both profane and obscene. It also vacillates between killing references to other ruminations like seeking the help of adults including the parent of the juvenile they are talking about.

The point is that you have to read the whole conversation in order to really determine whether this is sinister plot or an idle fantasy on the part of immature juveniles. Ironically, one of the juveniles posted a comment during the middle of the group chat which is noted below the title to this article. This comment is a strong indicator that even the 3 primary participants acknowledged to their group that their conversation was subject to being misinterpreted. When you read the entirety of the conversation, it is clear that there are a number of inescapable conclusions:

1. The conversation does not meet the legal terms of any of Virginia’s written threat statutes.

2. Of the total known universe of posts which are both date and time stamped (written remarks of the participants of the conversation) 253 of them took place after school and off school property. 5 of them took place during school hours. Those five did not contain any material that would violate Virginia criminal law.

3. The juveniles swing from discussions of “murder” or “killing” to discussions about simply embarrassing the subject of the conversation. They also talk about asking adults to bring relief to their situation or perhaps talking to the subject’s parents for help.

4. The prior reports on Facebook that suggested to people that there was a group of kids at the school with a “shooter list” or “hit list” was completely misrepresented. Rather, the juveniles in question, during their conversation, in order to display their dislike of the person they were talking about, falsely theorized that he had a shooter list, or was the type who might engage in a shooting spree in the future. It was part of their venting a dislike for him and had no basis in fact whatsoever, but it spread virally on Facebook. This only served to fix in the mind of many members of our community a false narrative that has certainly not helped to bring truth to the matter.

When the initial reports were brought to the attention of the sheriff’s office, the case was assigned to a senior detective with many years of experience who interviewed everyone that he could interview. He tracked every lead and exhausted all ordinary and prudent efforts to determine the truth of the matter, and it was his findings that resolved this issue. In fact, he collaborated with one of my Senior Assistant Commonwealth’s Attorneys daily in order to determine whether there were any prosecutable crimes that arose from his findings. In the end, both he and the senior prosecutor agreed that no such crimes could be charged or prosecuted in good faith. My senior assistant prosecutor appropriately authored an opinion for him which is attached hereto.

In conclusion, my office is working to redact the personal identifying information on the 41 pages of screenshots. There is at least one photo of the subject with his girlfriend that is posted, along with several names of other students that must be removed for privacy reasons. However, it is my hope that if you remain concerned that you will read each and every one of the posts and see for yourself that the conversation, taken in its entirety, may be ugly and profane, but it does not meet the requirements of the criminal law of Virginia.

More importantly, you can see for yourself that the conversation, again taken as a whole, is immature, fanciful and foolish. It is in fact the type of online bravado and gutter speak that a person would be embarrassed to be associated with if they were known to be the author; which is an inherent danger of anonymous use of internet communication forums.

Hopefully, this statement has been of some degree of help in beginning to bring some transparency to this unfortunate situation. If there are any concerned citizens who would like to discuss this further or ask any questions I hope that you will call me at my office at 540-422-8120. Thank you.

Click here and scroll to bottom to read the opinion letter about the case.
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Silii · October 14, 2017 at 4:28 pm
Fine. The police read the entire conversation by 3 teens. There was some ugly stuff there and they were definitely dissing another student (let's call him Student X) at their school. Everyone might say this is benign, but it is a form of bullying and the 3 in the conversation have supported each other in their ugly comments and, because they have each other's support, could very likely start some face to face bullying or might start winning other students over to their beliefs about Student X. This is actually the beginning of something that could escalate. The students who had the conversation have now been rewarded for their behavior and Student X could eventually be in danger. In this day and age with guns everywhere and teens willing to use them, combined with the benefit of support from colleagues (Columbine), it is no longer appropriate to say, basically, "kids will be kids." Where are the parents of the 3 kids in the conversation and what are they doing about what their sons have done? And, why is the school administration so glib about it?
Jim Griffin · October 10, 2017 at 7:02 am
Agreed with BJ, I support our educators in working with the sheriff's office to address this concern with teamwork.
BJ · October 9, 2017 at 4:36 pm
Thank you for the thorough investigation into this incident. Too many were acting in a "the sky is falling" and "we have killers within our midst" mentality. Most of us did stupid stuff when we were teenagers. Act sensibly instead of reacting irrationally. We have enough drama going on around us in the world that we don't need to make things in our community worse by jumping to conclusions based on assumptions. Blaine Johnson
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