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Appeals court hears free-speech, mens rea arguments in Commonwealth v. Ecker
Summary
At the Massachusetts Appeals Court on April 10, defense and the Commonwealth argued whether Counterman/Cruz require a subjective mens rea to sustain a criminal harassment-based probation revocation for defendant John Ecker; the panel heard conflicting views and took the case under submission.
The Massachusetts Appeals Court heard arguments April 10 in Commonwealth v. John Ecker over whether recent First Amendment case law requires the Commonwealth to prove a subjective mens rea before criminal harassment can support a probation revocation.
The issue matters because the defendant, John Ecker, sent repeated emails that a judge below found caused objective alarm and revoked his probation; defense counsel argued that after Counterman and Cruz, the Commonwealth must also prove that Ecker subjectively understood his communications’ threatening character.
The three-justice panel — presiding judge Catherine Hand and Justices Marguerite Grama and Chauncey Wood — questioned counsel closely about waiver and the…
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