Write a Story, Go to Jail By Kim Zetter
Story location: http://www.wired.com/news/conflict/0,2100,60144,00.html
02:00 AM Aug. 22, 2003 PT
Brian Robertson was just months away from graduation at Moore High School in Moore, Oklahoma, last year when he found the beginnings of what he thought was a short story on a school computer. He copied the file to another computer, added some paragraphs to the initial text and then promptly got arrested.
Robertson, who was 18 when he wrote the story, was charged with a felony count of planning to cause serious bodily harm or death. The story he wrote, titled "Evacuation Orders," described preparations for an armed invasion of his school that included directions to unnamed fellow commandos to kill the senior class principal and then plant plastic explosives around the campus.
After searching Robertson's car and his parents' home, authorities found no weapons, traces of explosive material or any other evidence that the teen was planning to attack his school.
But authorities said the story Robertson wrote was sufficient to charge him under an Oklahoma state statute, which was passed in the wake of school shootings across the country in the last few years.
The statute, passed in July 2001, makes it illegal for anyone to "plan, attempt, conspire or endeavor to perform an act of violence involving or intended to involve serious bodily harm or death of another person." Robertson, if convicted, faces up to 10 years in prison.
The case has the American Civil Liberties Union crying foul over suppression of free expression. Calling the statute vague and "overly broad," the ACLU says the law "criminalizes free thought and free expression," essentially making it illegal for anyone to even think about committing a crime. Robertson, who was charged in April 2002, is the first person to be tried under the law. His case goes to trial this week.
Students across the United States have been getting suspended and arrested for written work that authorities have deemed threatening. After two students in Colorado opened fire at Columbine High in 1999, killing 12 other students and a teacher, states and schools have been scrambling to find ways to protect students before violence occurs. But critics say they've been overreacting and violating constitutional rights.
Two years ago in San Jose, California, a 15-year-old boy was expelled from high school and sent to juvenile hall for 100 days after writing a "dark" poem in his honors English class.
"I can be the next kid to bring guns to kill students at school," he wrote in a poem titled "Faces." The student admitted to police that he was aware there were two guns and ammunition in a relative's house where he was living.
Another student in Michigan was suspended from school for posting passages on a website called "Satan's Web Page." Under the heading "Satan's mission for you this week," the student posted: "Stab someone for no reason then set them on fire throw them off of a cliff, watch them suffer and with their last breath, just before everything goes black, spit on their face."
While each of these cases involved underage students, Robertson faces more serious charges due to his age.
Robertson was in a Web design class at Moore High School in February 2002 when he says he found a Notepad file containing a paragraph titled "Evacuation Plans," which consisted of various instructions for taking shelter.
"It was pretty cool, I thought, so I just added on to it," Robertson said.
Robertson says the style of the writing set the tone for what he penned next. "The first paragraph was written in a militaristic style, so I got my mind set in a militaristic style and I just went from there," he said.
The text he wrote described using C-4 explosives to blow up the school and addressed what to do when police arrived. C-4 explosives were used in the attack on the USS Cole in Yemen three years ago and tore a 40-by-40-foot hole into the side of the destroyer.
About five weeks later, two students found the file on a computer and showed it to their teacher. Robertson was suspended from school for a year and prevented from graduating with his high school class. In order to complete the credits he needed to get his diploma, he took correspondence courses through the local university. Since his arrest he has had difficulty holding a job.
"I didn't know I could be charged with a felony for writing a story," he said.
Robertson's mother, Kathy, says Brian has produced dark writing in the past. "But he's not the only student who does this," she said. When she read the story in question she knew it was just "a figment of his imagination."
"Many students who are violent, you can see a pattern; they're constantly in trouble with school or withdrawn. But Brian is very gregarious. He's a fun-loving person and is very open. He's not the type who takes retribution," she said. Nonetheless, she supported his school suspension.
A former teacher herself, she said, "I know that in the day and time in which we live things are very scary." But she says the criminal charge went too far. "A felony will be with him for the rest of his life. That is so unfair."
Robertson says he lost friends as a result of the charges. Reporters later interviewed students at Moore who said they were frightened by news of his short story.
After his booking photo, which Robertson's mother describes as "not the most attractive photo," was flashed on the local news, Robertson's employer of two and a half years asked him to stop coming in.
"It was a really bad time for me," said Robertson.
Last December, Robertson's case was actually dismissed by a judge who ruled the law under which he was charged "unconstitutionally vague." In a briefing in support of Robertson, lawyers for the ACLU wrote, "It is only natural that young people think, speak and write about the issues that confront them. In today's world, these issues certainly include drugs, sex, family discord and, of course, school violence."
ACLU lawyers also wrote that since Robertson's writing didn't indicate a specific time, date or "geographic points" for the attack, there was no evidence to show it was anything other than "literary musings."
Sara McFall, Robertson's attorney, calls Robertson's writing "disturbing," but argued in court, "If a story describing such things is evidence (of a plan to commit murder), then Stephen King would be serving a life sentence."
Although the judge in that hearing ruled to dismiss the case, the district attorney appealed to reinstate it.
McFall believes the district attorney is simply using the teen to get a badly written law revised.
While Assistant District Attorney Richard Sitzman said last year about Robertson's story, "if this is fiction, then it goes too far," he admitted in court (PDF) that he had trouble with the law he was using to charge Robertson. "I wish I hadn't been the first to file a charge under this statute.... It has caused me problems analytically from the day I first read it," he said.
He even likened the statute (PDF) to something out of George Orwell's book 1984. "And the thing that I am concerned about this statute the most is the way it's written perhaps outlaws thought."
He couldn't be reached for additional comment.
"I understand the reasoning behind taking it to the next level in the legal system," said McFall. "There's no way this law can be tested until they use (it) as a tool for prosecution, and someone like Brian stands up and fights the law."
"It's not a fair method, but it's the only method we have of testing a law.... Legislators are very hesitant to assess damages on their own work. Without public outcry, a law would never be repealed and reintroduced with new language, absent this kind of public concern," McFall said.
In the meantime, Robertson's family has posted a $10,000 bond to release him on bail. And they've had to refinance their house and shell out tens of thousands of dollars for his defense. "It's really hit all of us hard," Kathy Robertson said.
Kathy Robertson has spent the last year and a half working hard to defend her son. She set up a website about the issue and just this week she uncovered evidence that may bolster his case. Despite the fact that her son has always maintained that he didn't create the story "Evacuation Plans," but merely added to a paragraph that was already written, no one has ever come forward to admit writing the first paragraph.
But this week, Kathy Robertson suddenly got the idea to run a Google search on the first sentence of the story. The search results revealed the exact paragraph buried deep in a page of the University of Arkansas website. A second search on HotBot revealed another university website with the same paragraph.
After a bit of sleuthing, she discovered that the paragraph comes on a CD-ROM that comes with a textbook for learning Adobe PageMaker. The paragraph is the sample text used in a template for creating ads in PageMaker. The text describes evacuation plans for taking shelter in case of a hurricane.
Kathy Robertson says she's willing to bet that someone in her son's Web design class had loaded the CD-ROM onto the computer he used to write the story.
She's hoping that this bit of evidence may prove that her son's story was an inspired piece of fiction. That may or may not be enough to finally get the case dismissed.
McFall says she's worried that if the case does go to trial, a jury's response would be unpredictable. "There are some people who will fall very squarely on the side that this was nothing but a story. Then you'll have others who will say we have an obligation to lock everybody up until we're sure they're not going to shoot us."
It's an issue, she says, that has the potential for "stirring a lot of emotion." Hopefully, she says, the facts of Robertson's case won't get lost in the emotional tug of war.