Imagine that you’re walking down the street. You see a man holding up an elderly woman at gunpoint. Instinct kicks in: you rush the assailant, disarm him, call the police, and set the gun on the ground. But then it turns out that it was all a movie set. The gun was a prop; the suspect and victim were both actors. No one was actually in danger.
This isn’t a far-fetched Hollywood plot twist. It’s a scenario laid out by Eleventh Circuit Court of Appeals Judge Barbara Lagoa, analogous to the legal nightmare endured by two Florida diving instructors, John Moore and Tanner Mansell. Their story shows what happens when courts neglect to enforce safeguards painstakingly designed to discourage ill-conceived prosecutions and prevent palpably unjust convictions.
What happened to Moore and Mansell was just as bizarre as this hypothetical. While leading a diving charter in 2020, they stumbled across an abandoned fishing line they believed to be the work of poachers. They reacted in a responsible manner: They hauled in the line, released the entangled sharks, and brought the rig back to the marina after notifying state officials.
You’d think Moore and Mansell deserve praise for their act of civic-mindedness. Little did they know that they’d stumbled on a bona fide research project. They’d soon discover their mistake when Assistant United States Attorney Thomas Watts Fitzgerald tried to send them to prison for theft of property within the “special maritime jurisdiction” of the United States. Their crime: “stealing” the line they hauled in and left on the dock.
Defense counsel asked the trial judge to tell the jury that theft entails wrongfully taking “[w]ith intent to deprive the owner of the use or benefit and to convert it to one’s own use or the use of another.” That instruction wasn’t given. So, in the end, all the government had to prove was that Moore and Mansell took the lines. And that was never in dispute.
The jury reluctantly returned a guilty verdict after agonizing over the case for longer than the entire trial. The protracted deliberation was punctuated by seven notes to the judge, practically begging for a way to acquit.
In a powerful concurrence replete with righteous indignation, Judge Lagoa didn’t mince words. She lambasted the prosecution and castigated Watts Fitzgerald by name for choosing to pursue the case. Lagoa highlighted the absurdity of condemning these men as lifelong felons for engaging in conduct that no rational human being would interpret as criminal.
The government’s logic, as Judge Lagoa so astutely points out, is chillingly expansive. According to the prosecutor’s argument, your heroic act of disarming the “robber,” fueled by a genuine belief in preventing harm, can be twisted into felony theft. Your intent to protect, your ignorance of the staged nature of the event, the noble reason — none of it would matter under this broad conception of the word “steal.” The only thing the government must prove is that you took the “robber’s” gun, which didn’t belong to you.
This case underscores the importance of the robust enforcement of defendant-protecting doctrines. At common law, prosecutors had to prove that the defendant intended to commit a crime. This is known as mens rea. Likewise, courts have historically construed ambiguous criminal statutes in the light most favorable to the defendant. This is known as the rule of lenity. In recent years, legislatures and courts have increasingly dispensed with these constraints, leading to the criminalization of totally innocent conduct and the destruction of the lives of well-meaning individuals such as Moore and Mansell.
Perhaps the single greatest bulwark against unjust convictions and punishments at the founding was the institution of jury independence, which included — but was not limited to — the power to acquit against the evidence. Historically, criminal jurors weren’t relegated to the role of mere fact-finders, as they are today. Jurors played an important role in assessing the wisdom, fairness, and legitimacy of a given prosecution and could acquit a factually guilty defendant if justice demanded. These historic powers and prerogatives still exist today.
It is highly doubtful that a jury fully cognizant of its historic powers and duties would have branded John Moore and Tanner Mansell as felons for their misguided attempt to fulfill a civic duty. It’s unlikely that Watts Fitzgerald would have charged Moore and Mansell if he had to try the case before a Sixth Amendment-compliant jury: that is, a jury apprised of its undisputed power to acquit against the evidence when justice necessitates. But as modern judges have effectively nullified the power to nullify, good-hearted people such as Moore and Mansell will continue to feel the system’s wrath.
THE JEWISH MUSEUM MURDERS ARE THE RESULT OF THE LEFT NORMALIZING VIOLENCE
Despite Moore’s and Mansell’s clear lack of malicious intent and their absence of personal gain, a jury grudgingly convicted. Similarly, the Eleventh Circuit panel on which Judge Lagoa sat unanimously affirmed this unsettling verdict, despite Lagoa’s obvious reservations.
When good intentions are met with an iron fist, the public loses faith in our criminal justice system. A system unable to differentiate between criminal intent and actions born of a genuine, albeit mistaken, belief in doing good deserves neither our confidence nor our support. The Supreme Court must intervene to ensure that well-intentioned acts aren’t punished by a government wielding its power with such breathtaking disregard for common sense. The very integrity of our justice system hangs in the balance.
Mike Fox is a legal fellow with the Cato Institute’s Project on Criminal Justice.