I interviewed Terry J. Nolan, the criminal defense attorney representing Evan Emory – who is the young adult arrested, jailed, and arraigned in a Michigan court in Muskegon County on child pornography charges for dubbing footage of grade school kids into a video intended for comedy on YouTube. Terry shared with me the entire backstory to why the controversial video was made, the legal arguments he plans to make for Evan's defense; and some revealing information being left out by the mainstream media.
Since ReelSEO's Jeremy Scott's coverage of this news story to our audience last week, we've been following the latest information over at the Muskegon Chronicle's news site, mlive.com. We've also been conducting our own interviews, and we are planning to put a daily series all this week with our own unique coverage. We're doing this because we think its very important to bring more attention to the important legal issues that are happening with YouTube – especially those involving criminal charges; and help shape the debate over how online video is forcing us to re-examine how we define and protect freedom of speech; and at the same time, addressing concerns of others' of how children should be protected from unscrupulous video pranks.
From Riches to Rags to Redemption: The Legal Saga of Attorney Terry J. Nolan
Even without the Evan Emory case, Terry J. Nolan has been regarded by the media as Muskegon County's best-known private attorney. "Nolan was easily Muskegon County's highest-profile criminal-defense lawyer, and arguably its most successful" up to early last decade, Said Muskegon Chronicle reporter, John Hausman.
However Terry J. Nolan's substance abuse problems got him arrested several times and serving time in jail himself, filing for bankruptcy, and having his law license suspended. After going through much therapy and financial recovery, Nolan regained his law license in 2009 and arranged to set up his solo practice including criminal defense.
My Interview with Terry J. Nolan, on the Evan Emory YouTube Case
The following interview was conducted by myself with Terry J. Nolan from his law office on Friday, February 18, 2011.
Let's start with telling our audience what happened with Evan Emory that led up to all this?
Evan went into Beechnau Elementary, which is part of Ravenna schools (here in Michigan). Now, to give you a little history, Evan went to Ravenna Schools his whole life, and he was a really well-liked student here. He was a good student, played five musical instruments, did variety shows, represented Ravenna in the entertainment showcase, which is all the schools in this county perform in; and he took second in that competition.
He plays the guitar and he sings; he's a comedian, and he basically does a variety show at the clubs around here. He has little gigs here and there, and he has a variety show. He does funny songs, little stand-up comedy, little interaction with the audience, plays his guitar, does "Lunch Lady" by Adam Sandler – a lot of fun things.
So he goes into his old elementary school and he films himself. He has a friend filming himself with shots of the audience, which are little first-graders; and they're adorable, and very clear shots of their faces and their bodies and everything else.
He sings and performs to the kids "Lunch Lady" and "Splish Splash" – which are two songs that kids will just laugh their butts off to the lyrics of. He gets them making all these funny expressions that are going to fit his video that he wrote. I'll call it the "Naughty Song" because that's what the media here has dubbed it, "The Naughty Song.”
So it has all these explicit lyrics, which he has performed many times around here on the local clubs in performances and for his friends. And it's the — have you ever heard of "Jizz in my Pants" or "A Dick in a Box?”
Yep, the popular Saturday Night Live Skits (available on Hulu and the SNL.com website)
It's very similar to those in like, he masturbates a guitar and all this other stuff. And audiences have found it hilarious. He always wanted to make a music video of it. And he tried to think, "What would be a really clever music video?” So he decides he's going to get these kids to watch "Splish Splash" and "Lunch Lady" and then he's going to dub it in while he goes back in the school — after school now, and sings the song by himself and has his buddy film it.
Then he goes back to his house and edits it all. So it looks like he's performing the "Naughty Song" in front of the kids and their expressions to some his lyrics, which are very explicit, sexual lyrics, looks like they're reacting to that song. His idea was it's a very inappropriate song and I think it would be — and it's a funny inappropriate song; and he thinks, what would be the funniest inappropriate audience I could get? Kids.
Now, [it was a] silly idea; he never got permission from the school to do what he was actually doing. He tricked them by getting in there and performing the one song. And, of course, they trusted him because he's a long-time student there and he performs for the classes. After he did "Splish Splash" and "Lunch Lady" all the other teachers wanted him to come and perform for their classes. But see, they didn't know he had an ulterior motive.
So he did do something wrong here. He put these kids' faces on this video with explicit, sexual lyrics. He never got permission from anybody to do that, and he tricked the school in the way that he did it. Those are things I think we can agree that are wrong. But are they criminal? Does it fit this statute? I don't think so, Grant. I don't think it does.
Is he really facing a 20-year sentence if he's convicted?
Michigan courts have guidelines: They take into account the guy's record, of which he has none. He has no contacts with the system, ever. They also take into account the factors in the offense itself. When you score all the factors, this is a case where he would go to prison, probably the highest range on running that is about three years. It's a 20-year felony, but he's not literally looking at 20 years in prison. He's probably looking at a maximum of three, and a judge could actually give him probation. But the worst thing about it is if he's convicted of these charges, he goes on the Michigan Sexual Registration list, which he has to be on for 25 years. Four times a year he has to report as a sexual offender for the next 25 years.
At this time, Evan has been arraigned in court. What are the next steps in this court case?
In Michigan the next step would be the preliminary examination where they have to prove there's enough evidence to charge him. I've had a meeting with the prosecutor, and they're already softening their position a little bit; they're willing to talk. And so we're probably going to waive that preliminary examination; and then the case goes up to Circuit Court, which is the only court in Michigan that has jurisdiction to hear it. At that point in time, we'll continue negotiating and see if we can work something out satisfying both sides.
What if you can't come to a resolution with the district attorney's office?
If we can't, that is where we would file quite a few motions. He was just arrested this week. We're still doing a lot of research.
What can you tell us about your research in preparing for Evan's case?
The issues that we're researching are the First Amendment, The Family Education Rights, and the Privacy Act. The [Michigan] statute itself is two-and-a-half pages long. We're probably going to read as many cases as we can that are associated with that statute; because this set of facts, we don't think fits the statute.
[Download a copy of the Michigan Penal Code on "child sexually abusive activity or material"]
Then we're going to look at other laws that he may have broken, for two reasons. Number one, in the hopes that we can find something a little more docile that might be a resolution. Secondly, we want to be prepared for the idea that they could add more counts, more charges, to this case.
Evan's freedom of expression, his First Amendment Rights; they're huge in this case. The Circuit Court would be the forum we would want to file those appropriate motions. We think this case right now is more legal then factual.
What do you mean by it being more of a "legal case" than a "factual case?”
In a factual case, it goes to the jury – where I think we're in good shape. But I'm hoping we can either reach a compromise, and if we can't, get it thrown out legally, which would mean motions in front of the judge.
It seems like the charges by the district attorney's office are based around their interpretation of Michigan statute on child pornography. Can you summarize what their argument they're making based on that statute to prove in court that Emory broke Michigan law?
Basically what they're saying is by dubbing these kids into this video, okay, that – and suggesting that the children were watching this video, even though it had disclaimers at the front and back end. I don't know if you knew that?
You're saying that Emory had an actual disclaimer in the video the he posted up on YouTube?
The video had a disclaimer at the beginning saying, "Children were not actually used in the performance of this song… [It was] at the beginning and at the end.”
Why didn't the Muskegon Chronicle mention that? I didn't see anything mentioned about that, or anywhere else online.
Nobody's seen the video except the lawyers. I have seen the video, and, you know, I can see it whenever I want, but I have to go to the Prosecutor's office to view it, which I did again today; but I don't have possession of a copy. I would let anybody send it to you, either.
Let me tell you why: Right now, that entire video is considered by our local office here to be abusive material, pornographic, abusive material depicting children. So for me to even send you a still [image], I could be also charged with distributing [child pornography].
We had a lot of comments from our readers at ReelSEO about what's the school's responsibility in all of this? I haven't heard of the district attorney's office doing anything with them; or not publicly like they've been doing with Evan, at least. What's their responsibility in this case?
In Michigan, obviously, like anywhere as far as I know, it's complete prosecutorial discretion. They see the school as being the victim in this case. The school, the parents of the kids, and the kids – they see as the victims. So they're probably not going to pursue the school because they feel they were deceived and tricked and you know. I'll just say, and I doubt he's going to go after the school. [Tony Tague, Muskegon County Prosecutor] has a good relationship with school administration.
Video Links of the Evan Emory YouTube Case
- CNN – Singer arrested over YouTube Video
- YouTube – Singer arrested over YouTube video
- YouTube – Speaking with Evan Emory's family
Coming Up In My Series Coverage on the Evan Emory YouTube Criminal Case:
- An interview with the school superintendent, John VanLoon
- An interview with a family law attorney and former prosecutor on child pornography cases
- An interview with a political activist on parental rights in education
- An analysis of the Michigan Penal Code on child pornography
- Important legal tips for parents, schools, and video producers
Feature image from Kendra Stanley-Mills, © Muskegon Chronicle
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