After more than a month trying to get an official statement from the U.S. Marshals Service as to why one of its deputies became involved in a state misdemeanor case, Lagniappe finally got a response, but very few answers.
In early May, U.S. Marshal Josh Devine called online journalist John Caylor and pressured him to surrender to Daphne police on a state misdemeanor charge related to Caylor’s publication of expunged criminal records. Caylor has alleged Devine was improperly using federal authority to bully him into removing records related to a federal judge and her clerk. And a Daphne police investigator says Devine contacted him around the time of Caylor’s arrest looking for information and claiming the reporter was a possible threat to the federal court.
An audio recording Caylor made May 8 of Devine calling him appeared to bolster some of Caylor’s claims. It took the Marshals Service more than a month to respond, but Public Information Officer Delvin Brown only revealed during the month’s time there was apparently no investigation into Devine’s involvement in the case.
Brown also repeatedly said if Devine were involved in an investigation, the Marshals would not be able to discuss it, but followed by saying he was unaware whether Devine was officially involved or not.
In the recording Devine tells Caylor he was not officially investigating the matter.
“As far as I know there is not a federal arrest warrant for him,” Brown said of Caylor. Asked again why Devine would then be calling Caylor, Brown ended the conversation and hung up.
Caylor has said Devine pressured him to remove not only expunged arrest records for attorney Scott Smith III that were published on insider-magazine.com, but also records pertaining to a land deal involving U.S. District Court Judge Ginny Granade and her relatives. Smith is a clerk for Granade and the Marshals Service is tasked with protection of the court.
Caylor was arrested in March for violating a 2014 state law that set up a method for expungement of certain criminal records and simultaneously criminalized publication of such records. He subsequently became a fugitive when he left the state after being charged for a second time May 4, saying he was fearful he would be hurt or killed in jail because of what he had published.
The following weekend Caylor recorded Devine calling about the warrant for his arrest and pressuring him to return to Daphne. Devine told Caylor he was calling out of fear the reporter might end up with federal charges for some unspoken reason. At that point Caylor denied ever having written anything threatening and said he was simply doing investigative reporting. None of Caylor’s writing about Granade or Smith read by Lagniappe reporters has contained threats to either.
Caylor says Devine telephoned him after he was arrested in March and awaiting a hearing in May and urged him to remove both Smith’s and Granade’s records from the website. In their recorded conversation, Caylor mentions Devine specifically asking him to remove that information. Devine neither disputes or acknowledges that in the recording.
Daphne Police Cpl. Jason Vannoy has been the investigator for Caylor’s case since March. On Monday of this week Vannoy told Lagniappe he was contacted by a U.S. Marshal named Josh Devine around the time of Caylor’s May 3 hearing in Daphne Municipal Court. Vannoy said the marshal asked for general information regarding the case.
“I am aware that the U.S. Marshals contacted him about being a potential threat to the court, but I’m unaware of exactly what they believed the threat was,” Vannoy said.
Caylor disputes any inference he is a threat and said such statements are designed to pressure him. He says in earlier conversations with Devine the marshal said he must have a “demented mind” to look up the type of information he’d published about Smith and Granade.
“I’m an investigative journalist and I’m just doing my job,” Caylor said. “I published actual records so people can see what I’m writing is true. They just don’t like that.”
Caylor has remained out of state.
The issue of expungements has gained traction over the past several years, but Alabama’s law appears to be different from the rest. The Vera Institute of Justice, a nonprofit criminal justice research center, recently reported that between 2009 and 2014, 31 states passed expungement laws.
Margaret Love, a federal clemency attorney who works for the nonprofit Collateral Consequences Resource Center, said Alabama was not the only state to criminalize the act of exposing a person’s expunged criminal record, but penalties are usually levied against government and law enforcement officials instead of private citizens or the media.
“I know there are a few other states that have done so,” Love said. “I do think there should be some kind of penalty for doing so because those sealed records are intended to be private. I think usually, though, the penalties are levied against government officials who release sealed information. They should know better, so there ought to be a penalty.
“I do think, for a private citizen, or for someone reporting for a newspaper or a newspaper publisher, there are definitely First Amendment issues,” Love added.
Love referenced a 2015 federal defamation case, Martin vs. Hearst Corp., in which the U.S. Second Circuit ruled when a news source reports on an arrest, which is later expunged or erased, the stories they previously published do not become defamatory. The ruling protected Hearst Corp. from being made to modify or remove online articles.
According to the court in the Martin Case, Connecticut’s expungement statute “creates legal fictions, but it does not and cannot undo historical facts or convert once true facts into falsehoods.” While it does provide for penalties against government or law enforcement officials, the court of appeals ruled Connecticut’s statute was intended to prohibit disclosure by government agencies, but was not intended to create a cause of action against private parties or publishers.
Love said expungement laws in the U.S. are far more lenient than their counterparts in the European Union.
“I also know that in Europe there is a movement by governments to push Google to remove any expunged or sealed court information from Google searches,” Love said. “European governments don’t share the same ideas we have about freedom of speech.”