Orin Kerr has a disturbing post involving a man convicted for violating a law that no one seemed to know existed:
Each day around lunch time, Sam Peterson would drive to the Union Street Cafe, park his car and--without actually entering the coffee shop--check his e-mail and surf the Net. His ritual raised the suspicions of Police Chief Andrew Milanowski, who approached him and asked what he was doing. Peterson, probably not realizing that his actions constituted a crime, freely admitted what he was doing.
"I knew that the Union Street had Wi-Fi. I just went down and checked my e-mail and didn't see a problem with that," Peterson told a WOOD reporter.
Milanowski didn't immediately cite or arrest Peterson, mostly because he wasn't certain a crime had been committed. "I had a feeling a law was being broken," the chief said. . . .
Milanowski, who eventually swore out a warrant for Peterson, doesn't believe Milanowski knew he was breaking the law. "In my opinion, probably not. Most people probably don't."
Indeed, neither did Donna May, the owner of the Union Street Cafe. "I didn't know it was really illegal, either," she told the TV station. "If he would have come in (to the coffee shop), it would have been fine."
The defendant did not know what did was illegal; the "victim" did not know she was a victim; and the police officer did not know what what the defendant did was illegal. Yet under these circumstances there was a prosecution? Where goeth prosecutorial discretion?
What's worse is that, if you find Orin's analysis persuasive (I do), you must conclude that the defendant did, in fact, not break any law. So we have someone being convicted of something that either a) no one knew was a crime; or b) was not a crime at all.
That, my friends, is our criminal justice system at its best.