In rushing to charge self-proclaimed “performance artists” Sean Stevens and Peter Berdovsky with disorderly conduct and placing a hoax device, Attorney General Martha Coakley’s office violated a cardinal rule of the criminal-justice system. To ensure fair enforcement of the law, prosecutors are supposed to move slowly and deliberately, unlike police and anti-terror squads facing potentially time-sensitive public-safety concerns, and news media facing deadlines and competitive pressures.
As the entire world now knows, Stevens and Berdovsky were hired by a New York advertising firm to place, at highly visible locations, magnetic light boxes advertising the Cartoon Network cartoon feature Aqua Teen Hunger Force. But despite the widespread sensationalistic description of Stevens and Berdovsky’s “guerrilla” advertising campaign as a “hoax,” the boxes were anything but.
To make the felony hoax charges stick, Coakley would have to prove the two placed the devices “with the intent to cause anxiety, unrest, fear or personal discomfort,” and that the devices were capable of “endangering life or doing unusual damage to property, or both, by fire or explosion….” As for the misdemeanor disorderly conduct charges, any dolt could see that there was no disorderly conduct, just disorderly thinking—and most of that was on the part of the authorities and the media, not the defendants.
Prediction: Stevens and Berdovsky will cut a deal rather than go to trial. Berdovsky, a political refugee in this country facing notoriously capricious immigration officials, cannot afford to pick a fight with either the state or federal government, nor risk even a remote chance of a felony conviction. Stevens probably would accommodate his friend. The path of least resistance for the defendants, and least embarrassment for the prosecutors, is to “continue the case without a finding,” putting both on probation for six months or a year. If both keep out of trouble, the charges would then be dismissed.
This ill-considered case will end not with a bang (so to speak), but a whimper.
-Harvey A. Silverglate