On September 28, 2002, Jeffrey Manzelli, a sound engineer and indie journalist, was covering an anti-war protest on the Boston Common. During the protest, Manzelli saw officers Brian Harer and Victoria Riel standing near the entrance of the Park Street subway station. Manzelli took a picture of Harer with his camera.
According to Manzelli, Harer saw him take the picture and threatened him, saying “Don’t take my picture. If you publish it I can sue you personally.” Harer wrote in an affidavit that he “asked Mr. Manzelli to stop taking my picture and asked him not to use any photos he had taken of me in any way shape or form… I told Mr. Manzelli that he needed my permission to use such photos and I was not giving it to him.”
Shortly after this first encounter, Harer and Riel began speaking with MBTA Inspector Charles Kenneally. Manzelli approached the group to interview the officers. He asked if there was really a law against taking pictures of others in public. During this time, Manzelli was holding a microphone in his hand and audio-recording the conversation.
Harer and Kenneally both noticed the microphone and asked Manzelli if he was audio-recording them. At this point, Manzelli, fearing that the officers planned to confiscate his tapes, threw a bag containing his tape recorder and tapes towards a crowd of protesters, yelling something to the effect of “Take the tapes!,” and ran away from the police.
The police chased after him, arrested him, and charged him with felony wiretapping and disorderly conduct.
The Massachusetts wiretapping statute that Manzelli was charged under prohibits the “secret” creation of audio-recordings of others. Manzelli denied that his recording was created in “secret.” “I was holding my camera in one hand, and I had the microphone right in my hand like this. No intention to hide it,” he told The Boston Phoenix.
In an affidavit, Officer Harer wrote that Manzelli “was holding a microphone in his left hand angled up towards” him and the two other officers. Nowhere in the affidavit did Harer accuse Manzelli of concealing the microphone.
But when Manzelli’s charges went to trial, the prosecution argued that Manzelli’s recording was created in “secret,” claiming that he hid the microphone in his jacket. Officer Harer testified that the microphone “wasn’t something you’d really notice.”
During the trial, the prosecution was unable to present the audio-recording Manzelli allegedly created as evidence. The police claimed that they were unable to recover Manzelli’s tapes after he threw them.
Despite the problems with the prosecution’s case, Manzelli was convicted of wiretapping and disorderly conduct. He was ordered to pay a $450 fine, perform 100 hours of community service, and spend two years on probation.
Manzelli appealed his case, arguing that the prosecution had failed to present sufficient evidence to convict him since did not have the audio-recording he allegedly created. The appeals court rejected this reasoning. “For most crimes, indirect or circumstantial evidence is generally sufficient to prove any or all of the elements of an offense,” wrote the court. “Stated differently, provided a jury’s verdict does not rest upon speculation or conjecture, the mere absence of direct evidence with respect to one or more elements of a crime by no means mandates a finding of legal insufficiency… Here, we conclude that the government met its threshold burden of proof, even without an audiotape.”
Manzelli’s conviction was upheld.
- Daniel Rowinski, “Police fight cell phone recordings,” The Boston Globe, January 12, 2010 (mirror of story hosted here)
- Mike Miliard, “Sound off,” The Boston Phoenix, December 13, 2006