On February 1, 2018, a Fond du Lac Jury of 12 acquitted Carlos Martinez on charges of allegedly making felony terrorist threats and misdemeanor disorderly conduct. Daniel Kaminsky represented Mr. Martinez and J. Foss Davis tried the case for the Fond du Lac County District Attorney.
At trail the facts became readily apparent: on April 27, 2017, Carlos was talking with friends between classes and lamented over being inundated with recent school shooting fears, reports, and troubled kids. The boys were playing the “bottle flipping game” and Carlos ironically said to one of the boys something to the effect that “if I land this next bottle flip then I will shoot up the school.” All of the boys testified that there was no possible way anyone could have taken this as anything but dark sarcasm.
The comment was partially overheard by two girls. They testified they only heard pieces of the conversation. Evidence was presented that both girls had a prior grudge against Carlos. One girl reported the alleged comments to her mother, who is also a teacher. She did not report it to the teacher in charge of the class where it happened.
From there Carlos was brought before the then principal and school resource officer and asked if he made the comment. He acknowledged that he did and tried to explain the context, that it was a joke, and tried to give them the names of the students he was talking to. On the witness stand, then Principal Michelle Hagen admitted that once she heard Carlos acknowledge the words, she really didn’t concern herself with the context.
Carlos was arrested within minutes and Officer Kristina Meihlan of the Fond du Lac Police Department referred charges for felony terrorist threats that same day.
The next day Meihlan went out and interviewed only 4 of about 30 students in the class. The officer failed to interview the boy Carlos was talking to or the parent/teacher who initially received the report from her daughter.
“It astonished me that none of the adults within the decision making process, from the then principal, to the officer, to the District Attorney who reviewed this case, had the common sense and perspective to step back and ask ‘what are we really doing here?’ Nobody ever sat down with Carlos and got his side of the story. Not only was Carlos’s ironic joke protected by the First Amendment, there was virtually no disruption at the school. The officer obviously knew it wasn’t serious because she didn’t search his backpack, locker, home, or make any real inquiry into whether he had access to a firearm, which he didn’t. In fact, he has never even held a gun. She then sat in front of the jury and wanted them to believe his comments could have been a credible threat. It appears she tried to interview only students that would validate the fact that she arrested a 17-year-old high school student over a bad joke.” Daniel Kaminsky.
“I am very thankful that the jury saw the truth and did not give in to the lies of the police department and the school accusing me of being a terrorist. What I went through was very terrible. I was an outcast and treated differently by everyone. I was kicked off the football team. I sat in isolation for most of the summer. I didn’t feel comfortable in my own skin until the new school year started because I was afraid of persecution. Students made fun of and made mimes of me. I had other kids’ parents saying they didn’t want me on the Rugby team. I feel like I can finally move forward and stop shutting people out of my life. I don’t understand how something like this can happen. I hope my case helps prevent this from ever happening to someone else.” Carlos Martinez.
“I think in Carlos’s own way, he was trying to say ‘I’m not going to be afraid anymore,’ and making a joke about it was his way of quelling those fears. While some may have found his humor offensive, there should have never been a question as to this somehow being criminal. The District Attorney’s Office completely failed in its duty here. I think our legislature has to take a long hard look at the merits of stationing police officers in our schools, or at least creating some rules about how students are interviewed. As it stands, officers can call students to the office and obtain statements without either a parent or attorney present. There is substantial inequality in sophistication and knowledge between the officer and the child, and often advantage is taken and the child is intimidated into signing a statement, under oath, which is simply not a fair and accurate report of events. We send our children to school to learn not just academics, but to be nurtured as they mature into adults. Bad judgment and mistakes should be expected. I cannot in good conscience sit silent while the very people we trust to help our children are instead taking advantage of them and in some instances ruining kids’ lives.” Daniel Kaminsky.