Feb
21

Tague v. Emory: Two Peas In A Pod

I don’t know if Muskegon County Prosecutor Tony Tague is a humorless prick. He might just be stupid. Or mean. Or perhaps he is a representative of the kind of government we want, and therefore deserve. But one thing is certain: Mr. Tague met his match in Evan Emory.

Emory is a 20-year-old kid hoping to make a name for himself in the movie business. So he asked school officials at the Beechnau Elementary School if he could serenade a classroom of first graders. He waltzed into a classroom of first graders and struck up a tune. Then he posted the video on YouTube.

You won’t find the video posted any longer. It has been removed as offensive. And Emory has been charged with a felony carrying up to 20 years imprisonment. He stands accused by Tague of manufacturing child sexually abusive material.

The YouTube video is adolescent dark humor. Emory sings salty lyrics to the first graders, replete with such winning lyrics as: "I’m going to use my sausage to make fettuccine, then for desert have a Harry Houdini," and "I want you to suck on my testes until I spurt in your face." As the words are sung, images of first-grade girls laughing or covering their mouths appear on screen. It is hardly edifying.

But it turns out that the offensive speech was not sung to the first graders. Emory actually sang a song called "Lunch Lady Land," as one of Mr. Rogers’ lieutenants, a first-grade teacher, stood by. The film shown on YouTube dubbed the lewd lyrics over the vanilla content.

But here is, dare I say it in a case involving claims of sexual misconduct?, the rub: when the film was broadcast, the children’s images were associated with the salacious lyrics. The girl next door was shown to the world giggling about sausage and fettuccine.

Michigan law permits a prosecution not just for using children to make "sexually abusive material,." a category of conduct the outer limits of which are by no means clear. It also penalizes making it appear that children were actually used in such a production. So Emory faces prosecution for a felony, potential imprisonment, inevitable registration as a sex offender, and mandated treatment as a sex offender. Has the law gone mad, or is it simply that prosecutors have too much discretion about when, what and whether to charge a crime?

Emory’s conduct crossed a line. But the line may not even rise to the level of a civil tort. The tort of false lights, using a person’s image to create the impression that the person endorsed or otherwise condoned conduct without the person’s consent, is the closest harm I can discern. But the video does not suggest that this class of first graders were porn stars in training. The children were in a public place, a school, to which school officials gave Emory access. He breached no one’s privacy.

But Tague thinks otherwise. "The bottom line in this case is that he walked into a classroom and took advantage and victimized every child in that classroom," Tague said. But this eager beaver of a prosecutor doesn’t really mean that. If he did, he would be charging Ravenna school officials with being accessories to this horrendous felony. Tague lacks the anatomy for such a move. It is far easier, and politically more expedient, to attack the kid with deplorable judgment.

As the video began, Emory is seen writing on a chalkboard: "Disclaimer: No children were exposed to the `Graphic Content’ of this video." No one disputes that not one of the children in the classroom was exposed to lewd comments. Just how Emory thought this stunt was going to advance his career as an artist is unclear, although it did yield a questionable notoriety.

Evan Emory is reported to have said he feels like an ass. He should, frankly. Funny as his stunt was in some dark and twisted sort of way, it is really an act of poor judgment, and it might even be tortious. But a crime? A felony requiring imprisonment? Lifelong branding as a sex offender?

I’d like to see this trial, if the case gets that far. Neither Tague nor Emory inspire much confidence. The young singer lacks the judgment to discern the boundary between what is and is not appropriate. But he shares that lack of judgment with the prosecutor, Tony Tague. This is a ridiculous prosecution, and proof that, in the end, all is reduced to farce.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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