Tanning, Computers and Restitution

Black’s Law Dictionary defines restitution as “full or partial compensation paid by a criminal to a victim”. Black’s Law Dictionary (9^th 3d. 2009).

As a legal encyclopedia notes, unlike damages in civil cases, restitution “ordered by a court pursuant to statutes governing such orders is . . . considered to be a criminal penalty imposed as punishment for a crime and is part of the criminal sentence imposed by the sentencing court.” 24 Corpus Juris Secundum, Criminal Law § 2475. And as this encyclopedia also explains, restitution “is statutorily limited to the `victim’ of the crime for which a defendant is convicted.” 24 Corpus Juris Secundum, Criminal Law § 2475.

This post is about a case in which restitution for a computer-related crime was ordered and then became an issue on appeal.

The case is State v. Nelson, __ N.W.2d __, 2011 WL 978937 (Minnesota Court of Appeals 2011), and arose as a result of Heather Marie Nelson’s employment with “a Mankato tanning salon.” State v. Nelson, supra. More precisely, on August 20, 2006,

C.F., the owner of the tanning salon, discovered one of her employees was tanning for free after her work shifts ended. The tanning salon used a computer software program to record client tanning sessions and to track cash flow related to client accounts. The employee, Leita Ann Baker, had not recorded her after-hours tanning sessions on the computer program. Baker was immediately fired by C.F.

After conducting an extensive investigation of employee time records and tanning logs, C.F. discovered that three other employees, including [Heather Marie Nelson], Sarah Maree Pierce, and Jessica Marie Lynn, had also been taking free tans and giving them to others. In order to accomplish this, they created fictitious tanning accounts, added tanning packages or other `add-ons’ to those accounts or existing accounts and later deleted the accounts or the add-ons, manipulated the computer software to award free tans, rang up tans at no charge, and engaged in other similar conduct. According to C.F., she lost $7,700 in revenue as a result of the employees' conduct.

State v. Nelson, supra. On September 20, 2006, C.F. fired Nelson. State v. Nelson, supra. Nearly three years later, she was charged with

one count of felony theft-by-swindle under Minnesota Statutes § 609.52, subd. 2(4) (value exceeding $2,500) for her conduct occurring between February 4, 2006, and August 4, 2006, and one count of misdemeanor theft under Minnesota Statutes § 609.52, subd. 2(4) (value not to exceed $250) for her conduct occurring between August 5, 2006, and September 30, 2006. The state alleged that [Nelson] stole services worth $2,873 between February 5, 2006, and August 4, 2006, and stole services worth $156 between August 5, 2006, and the end of September 2006.

State v. Nelson, supra.

The charges against Nelson differed from the usual theft charges. Traditional theft crimes make it a crime to take someone else’s personal property (e.g., money, purse, jewels, laptop, etc.) from them without their consent. (Robbery crimes are a special class of theft offenses that target using force to take the property without consent.)

The statutes under which Nelson was charged target a different, more recent crime: the theft of services. As Wikipedia notes, theft of services is “the legal term for a crime which is committed when a person obtains valuable services – as opposed to goods, by deception, force, threat or other unlawful means, i.e., without lawfully compensating the provider of said services.” As I explained in an article I published a few years ago, the theft of services crime is a relatively new crime:

The Model Penal Code, which dates back to the early 1960's and has influenced many state criminal codes, defines the offense of theft of services. Under the Model Penal Code, a person commits theft of services if he or she obtains services `which he knows are available only for compensation’ without paying for them. Services include `labor, professional service, transportation, telephone or other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other movable property’.

Susan W. Brenner, Is There Such a Thing as “Virtual Crime”?, 4 Cal. Crim. L. Rev. 1, ¶ 43 (2001).

Getting back to the Nelson case, she moved to dismiss the “felony theft by swindle count because the complaint was not filed within three years of the commission of the offense as required by” Minnesota Statutes § 678.26(k). State v. Nelson, supra. This statute defines the statute of limitations for bringing charges of felony theft by swindle; under the statute, a felony theft charge involving the theft of an amount less than $35,000 has to be filed within three years after the commission of the offense).

The court dismissed the felony count against Nelson on December 22, 2010, after which she pled guilty to the “remaining misdemeanor theft count.” State v. Nelson, supra. Nelson’s plea agreement stated that “between August 5, 2006, and September 30, 2006, she `tanned at the business while still on the clock’” and committed her to “`to pay restitution’ and to allow the court to `determine the amount of restitution.’” State v. Nelson, supra. C.F. then

submitted an affidavit of restitution that stated a total net loss of $24,412, which included $690 for new software, $700 for a new computer hard drive and tower, $7,668 for the value of stolen tanning services, $2,604 for employee hours to reconstruct and verify the thefts by cross-referencing daily reports to customer accounts and tanning packages, and $12,750 in `personal hours’ related to the thefts.

[Nelson] submitted an affidavit in opposition . . ., arguing that [C.F.] had offered evidence that during the viable charging period, she had stolen only one tan, on September 16, 2009, valued at $26.

C.F. testified at the restitution hearing. . . . that although the tanning salon’s computer was not broken or damaged by [Nelson’s] conduct, she needed to replace the computer and software to regain control of the business. She also explained how she documented the amounts of the thefts and the time required to verify those amounts. [Nelson] did not testify . . . nor did she offer evidence on her ability to pay restitution.

State v. Nelson, supra.

The judge ordered Nelson to “pay restitution of $19,412, which was the total amount claimed by C.F., less $5,000 she received in insurance proceeds.” State v. Nelson, supra. The judge said Nelson “`and codefendants should be jointly and severally liable for restitution to [C.F.]’”, which I find puzzling. State v. Nelson, supra. According to this opinion, when the judge dismissed the felony count against Nelson he also “dismissed all criminal charges against [her] three former coworkers” because the charges weren’t brought within the statute of limitations. State v. Nelson, supra.

Nelson challenged the amount of restitution on appeal. In ruling on her challenge, the Court of Appeals noted that “a loss claimed as an item of restitution by a crime victim must have some factual relationship to the crime committed – a compensable loss must be `directly caused by the conduct for which the defendant was convicted.’” State v. Nelson, supra (quoting State v. Latimer, 604 N.W. 2d 103 (Minnesota Court of Appeals 1999)). Nelson argued that the “amount of the restitution award” was “impermissibly inflated” because the judge “erroneously ordered her to pay restitution for conduct for which she was not responsible.” State v. Nelson, supra. The Court of Appeals agreed:

[T]he court . . . erred by including as restitution numerous items of loss that were not directly caused by [Nelson’s] conduct. [She] pleaded guilty to misdemeanor theft for conduct occurring between August 5, 2006, and September 30, 2006. However, the bulk of the losses attributable to her conduct for which the court ordered restitution occurred before this period. . . .

State v. Nelson, supra.

The Court of Appeals held that including losses in the restitution award that “were attributable to [Nelson’s] conduct that occurred before the charging period” was error. State v. Nelson, supra. It also found that the trial judge erred in other respects:

[The] award of restitution `to replace the computer and programs and to account for the theft of services’ was also erroneous because it did not constitute an economic loss for purposes of restitution. . . . [T]o be compensable as restitution, an economic loss must be `sustained by the victim as a result of the offense.’ Minnesota Statutes § 611A.045, subd. 1(a)(1).

C.F. admitted . . . that none of the employees broke or damaged her computer or software system; she claimed only that they bypassed the software to conduct their crimes. Because [Nelson] did not damage C.F.'s computer, the court's determination that `[C.F.] was compelled to replace the computer and the programs’ is unsupported by the evidence. Any deficiencies in the original computer and its software were unrelated to [Nelson’s] crime.

Finally, the total amount of time C.F. claimed for her own investigation of all the conduct involving [Nelson] and her three former coworkers was 1,647 hours. This . . . would constitute more than 41 weeks of full-time employment. Under any reasonable measure, this amount of investigative time was excessive, and it failed to identify the portion of that time that pertained to [Nelson’s] offense. As such, [C.F.] failed to meet its burden to establish that this item of loss was caused by conduct for which [Nelson] pleaded guilty.

State v. Nelson, supra.

And the Court of Appeals noted that after she pled guilty to the misdemeanor charge, Nelson “asserted, in conjunction with the restitution hearing, that the value of her stolen tan was $26”, but her guilty plea “was predicated on a theft that the state valued at $156”. State v. Nelson, supra. It also noted that “at oral argument before this court she conceded that she was responsible for at least this amount in restitution and had the ability to pay it.” State v. Nelson, supra. The court therefore affirmed the trial judge’s decision to award restitution but reduced the award to $156. State v. Nelson, supra.

Child Pornography and Posse Comitatus

As Wikipedia notes, posse comitatus “is the common law . . . authority of a county sheriff or other law officer to conscript any able-bodied males to assist him in keeping the peace or to pursue and arrest a felon”. As Wikipedia also notes, the posse comitatus “power presumably continues to exist in those U.S. states that have not repealed it by statute.”

At least a few U.S. states have statutes that specifically retain the posse comitatus authority. Louisiana, for example, has a statute the title of which is “Posse comitatus; penalty for refusal to assist” and that provides as follows:

Every sheriff may call for the aid and command the services of every able bodied inhabitant of his parish to preserve the peace in cases of riot, to execute a process of court in cases where resistance is made or threatened. No person shall refuse to render such assistance.

Louisiana Revised Statutes § 33:1436. California has a similar statute: California Penal Code § 150 (crime to neglect or refuse to join “the posse comitatus”). And an Alabama statute specifically says the sheriff “may summon to his aid the posse comitatus of his county, armed and equipped as the occasion may require”. Alabama Code § 9-12-2. I tend to doubt that these statutes are used very often, but the posse comitatus power does seem to still exist at the state level. See, e.g., Joanne Eldridge, County Sheriffs in Colorado: Beyond the Myth, 38 Colorado Lawyer 19 (February 2009).

This post, however, is not about the use of the posse comitatus power. It is, instead, about a federal statute known as the Posse Comitatus Act and a recent federal case in which the applicability of that statute was at issue.

The case is U.S. v. Holloway, 2011 WL 304580 (U.S. District Court for the Western District of Kentucky 2011), and this is how it began:

On May 19, 2008, Naval Criminal Investigative Services Special Agent Rachel Lepovetsky was conducting an undercover child exploitation investigation in Yahoo! chat rooms. . . . Lepovetsky posed as a 32-year-old mother of a six-year-old girl and a ten-year-old girl. While chatting in the Yahoo! chat room titled `fetish 14,’ [she] was contacted by a person using the screen name `Consul_211’ The conversation began as follows: `Good afternoon . . . do you enjoy looking at and chatting about pics of young girls?’ Lepovetsky responded `I don't have any to give you.’ Consul_211 replied `No problem . . . just enjoy’ at which point `Consul_211’ sent [her] images of suspected child pornography.

Lepovetsky's continued to converse with `Consul_211’ for nearly an hour, during which time, `Consul_211’ sent approximately twenty images of suspected child pornography. `Consul_211’ also stated that he had taken some pictures of `young models’ and proceeded to describe sexually explicit activity done by the `young models’ at his direction.

Thereafter, Lepovetsky obtained a search warrant seeking subscriber information from Yahoo! records for the user of the screen name `Consul_211.’ The warrant was executed on July 2, 2008, and disclosed that `Consul_211's’ subscriber information identified the user as a Jim Hall of Louisville, Kentucky, with a date of birth of January 15, 1962. Yahoo! also provided the IP address used by `Consul_211’ during his conversation with Lepovetsky on May 19, 2009.

Using this information, Lepovetsky prepared an affidavit and obtained a search warrant seeking the subscriber identity of the IP address in question from Insight Communications. The warrant was executed on August 1, 2008, and Insight revealed that the IP address used on May 19, 2009, was registered to Emma Jimenez, who had an address on Shady Lane in Louisville, Kentucky. Listed as the spouse/roommate of Jimenez in the subscriber information was . . . James Holloway.

U.S. v. Holloway, supra.

At this point, Lepovetsky determined that James Jolloway, “the suspected user of the `Consul_211’ username,” was not associated with the military, and therefore forwarded the information she had gathered to the Kentucky Internet Crimes Against Children Task Force. U.S. v. Holloway, supra.

Detective Dan Jackman of the Louisville Metro Police Department Crimes Against Children Unit “cross-reference the information provided by” Lepovetsky with a “Kentucky Operator’s License for James Holloway, which revealed a match regarding the Shady Lane address provided by Insight as well as a near match regarding the date-of-birth provided by Yahoo!.” U.S. v. Holloway, supra. A criminal history search and a search of the Jefferson County Clerk’s Property Valuation Administrator web site “further confirmed that James Holloway resided at the address provided by Insight and that the home itself was owned by James Holloway.” U.S. v. Holloway, supra.

Jackman then used the information provided by Lepovetsky and his verification of

Holloway's address and date-of-birth to obtain a search warrant for Holloway's home on Shady Lane. The search warrant was issued and executed on September 12, 2008. Jackman and other law enforcement officials conducted the search of Holloway's home and seized several computers and hard-drives. A forensic analysis of those computers revealed 649 still images and 82 movie files of suspected child pornography. Holloway was subsequently indicted.

U.S. v. Holloway, supra. The opinion doesn’t tell me what Holloway was charged with, but I’m guessing possession (and maybe distribution) of child pornography in violation of federal law.

After he was indicted, Holloway moved to suppress “the evidence of his online conversation with Lepovetsky, arguing that her investigation was a violation of the Posse Comitatus Act.” U.S. v. Holloway, supra. As Wikipedia explains, the Posse Comitatus Act was “passed on June 18, 1878, . . . with the intention . . . of substantially limiting the powers of the federal government to use the military for law enforcement.” The Posse Comitatus Act (PCA) is codified as 18 U.S. Code § 1385. It originally applied only to the Army, but was amended in 1956 to add the Air Force and now provides as follows:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The current version of the PCA only applies to the Army and Air Force, but a directive promulgated by the Secretary of Defense pursuant to another federal statute – 10 U.S. Code § 375 – extended the Act’s prohibitions to members of the Navy and Marine Corps. U.S. v. Holloway, supra. As implemented by the Secretary of the Navy, the directive “`prohibit [s] “direct” military involvement in civilian law enforcement activities but permit[s] “indirect” assistance such as the transfer of information obtained during the normal course of military operations or other actions that “do not subject civilians to [the] use [of] military power that is regulatory, prescriptive, or compulsory.”’“ U.S. v. Hitchcock, 286 F.3d 1064 (U.S. Court of Appeals for the 9^th Circuit 2002) (citing Department of Defense Directive 5525.5 § E4.1.7.2. (Jan. 15, 1986) (as amended Dec. 20 1989)).

Under this Directive, `[a]ctions that are taken for the primary purpose of furthering a military . . . function of the United States, regardless of incidental benefits to civilian authorities[ ]’ do not violate the PCA. DoD Directive 5525.5 § E4.1.2 .1. The investigation and enforcement of the Uniform Code of Military Justice (UCMJ) is considered an independent military purpose under the DoD Directive. Id. § E4.1.2.1.1.

U.S. v. Holloway, supra.

The federal district court judge who has been assigned the Holloway case noted that the “sexual exploitation of children is prohibited under the UCMJ”, and that Lepovetsky’s

under cover investigation was an attempt to stop the sexual exploitation of children as prohibited by the UCMJ. As such, her investigation falls under the independent military purpose exception. Once Lepovetsky was able to confirm that `Consul_211’ was not a member of the military, she immediately turned the investigation over to the appropriate civil law enforcement department. . . .

Lepovetsky was not personally involved with obtaining the search warrant to search [Holloway’s] home, the search of the home itself, the seizure of any evidence, the analysis of any evidence seized, or the arrest of Defendant. Lepovetsky's assistance in [Holloway’s] case was only incidental. [He] was not subjected to the regulatory, prescriptive, or compulsory use of military power. In situations such as this, the PCA is not violated by such assistance.

U.S. v. Holloway, supra.

The judge also noted, in dictum, that even if there had been a

violation of the PCA, the exclusion of the evidence would not be appropriate under the circumstances of this case. `As a general matter, the exclusionary rule is not a remedy for violations of the PCA.’ U.S. v. Al-Talib, 55 F.3d 923 (U.S. Court of Appeals for the 4^th Circuit 1995). . . . Absent widespread and repeated violations of the PCA and its related regulations, a majority of courts have refused to apply the exclusionary rule. . . .

There is no allegation that widespread or repeated violations of the PCA or its related regulations have occurred due to military personnel's undercover investigations of the sexual exploitation of children online. The Court finds that even if [Holloway] could show a violation of the PCA, he has not alleged widespread or repeated violations of the PCA to justify exclusion of his conversation with Lepovetsky.

U.S. v. Holloway, supra. The judge therefore denied Holloway’s motion to suppress. U.S. v. Holloway, supra.

Tweeting = Broadcasting?

Almost a year and a half ago, I did a post on a federal decision that considered whether a reporter should be allowed to use Twitter to post periodic updates on the proceedings in a criminal trial. That case, of course, involved the application of federal law.

This post is about a recent decision from the Superior Court of Connecticut that addressed essentially the same issue, though from a slightly different legal perspective.

The case is State v. Komisarjevsky, 2011 WL 1032111 (Connecticut Superior Court 2011), and it involved a motion filed by the defendant, Joshua Komisarjevsky,” who is awaiting trial “on numerous charges, including capital felony . . . arising out of a triple homicide in Cheshire in 2007.” State v. Komisarjevsky, supra.

You may be familiar with the horrible sequence of events that led to these, and other charges, but if you’re not, check out this story.

Because of the nature of those events, the case has, as this opinion notes, “aroused intense media interest.” State v. Komisarjevsky, supra. Because Komisarjevsky is charged with sexual assault, Rule 1-11(b) of the Connecticut Rules for the Superior Court prohibits “`broadcasting, televising, recording or photographing’” the trial. State v. Komisarjevsky, supra (quoting Connecticut Practice Book 1998 § 1-11). As this opinion notes, Rule 1-11(b) “plainly prohibits television and radio coverage of the trial proceedings in the courtroom”, but that’s not the issue Komisarjevsky’s motion went to. State v. Komisarjevsky, supra.

In the motion he filed on February 4, 20110, Komisarjevsky sought to prohibit the use of

`electronic devices by spectators . . . during the course of all court proceedings.’ Although the motion addresses electronic devices generally, the bulk of it is aimed specifically at Twitter. The motion specifically claims that Twitter is a form of `broadcasting’ and is thus categorically prohibited by [Rule 1-11(b)]. The motion alternatively claims that, even if Twitter is not categorically prohibited by [Rule 1-11(b)], it and other electronic technology should be prohibited in this case as a matter of judicial discretion under [Rule 1-10(a)].

State v. Komisarjevsky, supra. The prosecution opposed the motion at a hearing held on February 16. State v. Komisarjevsky, supra. Komisarjevsky argued that Twitter constitutes “broadcasting”, but did not introduce evidence supporting that argument at the hearing. State v. Komisarjevsky, supra. The court noted that Twitter’s website

provides a useful description of the service. [It] explains that, `At the heart of Twitter are small bursts of information called Tweets. Each Tweet is 140 characters in length.’ The service allows users either to Direct Message (DM) specific individuals or to use `twitter posts’ accessible to the public. The website claims 175 million registered users and the writing of 95 million tweets per day. While the service was initially used to communicate the trivia of everyday life, it has recently become a powerful tool of political information. Earlier this year, Twitter was used by antigovernment groups to publicize protests that brought down the government of Egypt.

State v. Komisarjevsky, supra.

The Superior Court judge who ruled on the motion then noted that the first issue to be resolved was whether this form of communication is “broadcasting” within the meaning of Rule 1-11(b). State v. Komisarjevsky, supra. Since the Connecticut Practice Book does not define “broadcasting”, he turned to other sources. State v. Komisarjevsky, supra. He pointed out that Webster’s Third New International Dictionary (1971) defines “broadcast” as “`to send out from a transmitting station (a radio or television program) for an unlimited number of receivers.’” State v. Komisarjevsky, supra.

The judge did not, though, find this useful because Webster’s was published decades “prior to the invention of . . . recent electronic media.” State v. Komisarjevsky, supra. He also considered definitions of “broadcast” contained in various federal statutes, but found them equally unhelpful in determining whether tweets constitute “broadcasting”. State v. Komisarjevsky, supra.

The judge decided, then, that under these circumstances, “the appropriate judicial approach is to construct an interpretation that comports with the primary purpose of the rule in question and does not lead to anomalous or unreasonable results.” State v. Komisarjevsky, supra.

The primary purpose of [Rule 1-11(b)] is plainly to spare a sexual assault victim from the indignity of having his or her ordeal vividly conveyed to the world by the use of actual voices and photographic or televised images projected from the courtroom. This interest is a powerful one, but -- absent the unusual case of a closed courtroom and sealed transcript -- it cannot sensibly extend beyond voices and photographic or televised images to the actual words spoken in court or descriptions of courtroom events. Although [Rule 1-11(b)] plainly bars the use of television cameras and radio transmitters in court, it does not bar the press and public from access either to the courtroom itself or to transcripts and other sources of courtroom words and events.

State v. Komisarjevsky, supra.

The judge noted that this “consideration is particularly important because the right of access to criminal trials is afforded protection by the First and Sixth Amendments.” State v. Komisarjevsky, supra. He explained that public access to criminal trials “safeguards the integrity of the fact finding process” and “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” State v. Komisarjevsky, supra.

He then noted that because courts have “proceeded with caution in extending old legislation to new technologies”, he should “exercise a similar caution when asked to extent the categorical prohibition of [Rule 1-11(b)] to new electronic technologies.” State v. Komisarjevsky, supra. The judge found that this “decision, if it is to be made at all, ought to be made in more deliberate context of [Rule 1-9], which allows proposed rules to be published in advance and subjected to public comment before being debated and voted upon by the Judges of the Superior Court.” State v. Komisarjevsky, supra. He therefore “decline[d] to extent the categorical prohibition of [Rule 1-11(b)] to Twitter.” State v. Komisarjevsky, supra.

The judge then considered Komisarjevsky’s alternate argument that “if Twitter is not categorically prohibited by [Rule 1-11(b)], it and other electronic technology should be prohibited in this case as a matter of judicial discretion under [Rule 1-10(a)].” State v. Komisarjevsky, supra. Rule 1-10-(a) of the Connecticut Rules for the Superior Court allows personal computers to be “used for note-taking in a courtroom” unless the judge finds that such use is “disruptive of the court proceeding,” in which case he/she “may limit such use.” Rule 1-10(a) also states that “[n]o other electronic devices shall be used in a courtroom” unless authorized by a judge or “permitted by these rules.” State v. Komisarjevsky, supra.

This Komisarjevsky judge noted that judges must exercise their discretion to enforce the rule on a “case-by-case basis”, and can take “appropriate action” if the use of electronic devices becomes disruptive. State v. Komisarjevsky, supra. He also noted that the

appropriate action is determined by the type of disruption involved. Most disruptive activity can be addressed by a simple request to the person involved to adjust the behavior in question. If, for example, a journalist uses an electronic device with a noisy keyboard, he or she can be instructed to obtain a silent keyboard or moved to a more distant location in the courtroom.

State v. Komisarjevsky, supra.

Komisarjevsky argued, at the hearing on his motion, that

what is, in his view, the lack of social utility in electronic communications made from the courtroom should influence the exercise of judicial discretion. His specific argument is that these communications tend to be either trivial or inaccurate and thus play no useful role in educating the public about the judicial process. The short answer to this contention is that control of the substance of courtroom reporting is not an appropriate exercise of the judicial function in a free society. Jurors are routinely instructed to avoid media reports concerning the case. The court should ignore such reports as well.

State v. Komisarjevsky, supra.

As support for that conclusion, the judge noted that “[t]his limited judicial role is recognized throughout the English-speaking world,” citing a Supreme Court of Ireland case and a decision by a “distinguished United Kingdom judge” as examples of this recognition. State v. Komisarjevsky, supra. He also noted that newspapers are

sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. . . .

State v. Komisarjevsky, supra.

The Superior Court judge held that while he retained the ability to restrict disruptive activity, “the content of electronic or other reporting cannot be considered in making this determination.” State v. Komisarjevsky, supra. He then denied Komisarjevsky’s motion to prohibit the use of electronic devices (and Twitter) in court but noted that he retained the “discretionary ability to address particular behavior found to be disruptive, under the standards” addressed above. State v. Komisarjevsky, supra.

According to this story, Komisarjevsky’s trial is set to start on September 19.