Wednesday, August 03, 2005

Crystalizing the DeFede debate and a SDFLA mention

Jessica M. Walker of the Miami Daily Business Review wrote a nice piece (you need a password to access) this morning exploring the legality of the DeFede/Teele tapes. And I'm not just saying that because she mentioned this blog and my debate with Prof. Froomkin:

The 1981 act has now become scrutinized in the media, on the Internet and among attorneys in the wake of Teele’s suicide and DeFede’s almost instantaneous firing. Froomkin and Miami criminal defense attorney David Oscar Markus have been debating the legal points of the issue on their Web logs, with Markus arguing that the taping was legal. Froomkin insists that it wasn’t. . . .

Markus ag[ued] that DeFede lacked any criminal intent. “There is a well carved out exception in the law that if you do something out of necessity, you are not criminally liable for doing so,” Markus said. He cited the example of a driver exceeding the speed limit so he could quickly deliver a heart attack victim to the hospital. “If DeFede was taping for some better good, then I think he was doing the right thing and there was no criminal intent,” Markus said.

Very cool that the blog was cited! The rest of the article is excellent, citing Dan Gelber (DeFede's lawyer), Bruce Rogow, Michael Froomkin, and Thomas Julin.


Anonymous said...

Let me preface these comments by stating that I do not believe that Defede should have been fired nor do I believe that he should be charged with a crime. But, please, what "greater good" was Defede working toward? I might buy that Defede panicked (although I do not understand that either)but how would the tape have helped Teele?

David Oscar Markus said...

I actually argued that the state couldn't meet the elements of the crime, which are (as I explain in a post below):

1. DeFede recorded Teele's calls, without Teele's consent.
2. DeFede did so for an illegal purpose or for commercial gain.
3. Teele had a reasonable expectation of privacy in the calls.

But I stand by the quotes in the paper. There is no crime if you act out of necessity. Teele was suicidal on the phone -- he likely taped to protect himself and because he didn't know what to do. It certainly does not appear that he taped to write a story or for some illegal or criminal purpose. Anonymous, why do you think he committed a crime?