Scott Moss, a law professor at Marquette University Law School, dissects the bomb scare case against the two men arrested for putting up neon light signs promoting a cartoon.
"The criminal law the prosecutors cite declares it a felony to "place any hoax device ... with the intent to cause anxiety, unrest, fear or personal discomfort to any person." It defines "hoax device" as one "that would cause a person reasonably to believe … [it] is an infernal machine[,] ... [a] device for endangering life or doing unusual damage to property, or both, by fire or explosion...."
In other words, the prosecutors have to prove beyond a reasonable doubt that the defendants -- two guys hired by marketers for a cartoon show -- actually intended to create a bomb scare by putting up those light boards. The prosecutors also have to prove that reasonable people would've thought the light boards were bombs...
Here's one thing the two men are guilty of doing: They ticked off a lot of important public officials who now are deeply embarrassed that they virtually shut down a major city after mistaking lit-up cartoons for the Second Coming of Osama. Those officials' upset is understandable, but fortunately, in this day and age, embarrassing even the most well-intentioned mayor doesn't justify felony charges -- at least not in America...
My bet is that we will see a quick guilty plea to some exceedingly minor charge -- perhaps the underwhelming charge of "disorderly conduct," which the Attorney General already has thrown in along with the felony bomb scare charges. Procuring a plea to a minor offense is a common tactic of bad-egg prosecutors who bring legally dubious but politically necessary felony charges.
That sort of prosecutorial overreaching is exactly what happened to wrongly prosecuted Chinese-American physicist Wen Ho Lee.
In 1999, Lee was arrested and locked in pretrial solitary confinement for almost a year on serious national security charges -- leaking nuclear secrets to China. When the charges proved baseless, the government, rather than just admit error and free Lee, instead negotiated a plea of "guilty" on a trivial charge of not following proper procedures for handling sensitive information.
Wen Ho Lee and the Boston Two are victims of one of the darkest possibilities in our criminal justice system: prosecution as political persecution, when politicians and police need a scapegoat for their own failures."