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Friday, April 01, 2005


Posted by: Hammer / 12:38 PM

Atrios has a letter from Senator Lautenberg to majority leader Tom DeLay:
I was stunned to read the threatening comments you made yesterday against Federal judges and our nation’s courts of law in general. In reference to certain Federal judges, you stated: "The time will come for the men responsible for this to answer for their behavior." ...

You should be aware that your comments yesterday may violate a Federal criminal statute, 18 U.S.C. §115 (a)(1)(B). That law states:

"Whoever threatens to assault ... or murder, a United States judge ... with intent to retaliate against such ... judge ... on account of the performance of official duties, shall be punished [by up to six years in prison]"

Threats against specific Federal judges are not only a serious crime, but also beneath a Member of Congress. In my view, the true measure of democracy is how it dispenses justice. Your attempt to intimidate judges in America not only threatens our courts, but our fundamental democracy as well.

It's not a hard case to prove, either. In my last criminal trial I defended a man accused of threatening a judge. Now, I've been known to exaggerate for comedic effect, but I assure you that the following facts are not exaggerated. It has been five years, so I might have a few details out of order.

The words my client used were never defined. The only actual witness against him was a deaf woman who read his lips. The deaf woman had serious history of mental illness, which the judge would not allow into evidence. Just to be clear -- she couldn't remember exactly what my client said or who he was talking about other than being angry about some "judge". At one point, she thought the judge's name started with a "P", but later backed away from that. She was so upset by the comments that she waited a couple of days and then spoke to the police.

Before the trial, I argued that my client had a first amendment right to vituperative speech and, based on a long series of cases, there was an objective standard that the speech had to meet in order to be considered a threat. The witness couldn't identify what my client had actually said, therefore the objective test could not be met. I further argued that because the witness didn't know which judge was being threatened, it was impossible to prepare a coherent defense. If the comments were a threat against Judge Gonzalez, we were going to put her on the stand so that she could testify that she had never felt threatened when my client appeared before her. If the comments were against Judge Montabon, we were going to argue that there was no reason to be upset, as he only sentenced my client to probation.

Remember the Judge P? My client wasn't charged with threatening Judge Perlich, but the judge did allow the state to charge my client with threatening both Judge Gonzalez and Montabon with one indistinct statement.

Yes, I argued against that, as well.

It's too late to make this long story short -- and I'm skipping the part where the trial judge allowed an employee of the local post office to testify that my client made grossly insensitive remarks following the Oklahoma City bombing (which occurred 5 years before the trial) and where the police officer testified that he had never seen a this logo before -- but my client was convicted on two counts of threatening a judge. He as a repeat offender and he got the maximum on both counts. That's a total of 20 years in prison (plus a year for disorderly conduct for calmly saying something to his friend in her kitchen). He'll be eligible for parole this fall.

I oppose injustice, even for those who deserve it, like DeLay. His comments were grossly insensitive and inappropriate, but not criminal. DeLay, a successful man walking the halls of Congress will get the benefit of the doubt that my client, an indigent, transient loser with a nasty mouth and poor disposition, never received. In this case, neither person deserves criminal punishment. But if I had to pick one person to bear the weight of this injustice, I'd go with the Bug Man.



Out of curiosity, do you know if the "threatening" remarks were made on the Congressional floor? I will assume that since Congress was in recess that the comments in questions were not made on the floor of Congress.

The reason I ask is that Ba Ha Ha Jr. and I had a conversation this past week while on holiday in our nation's Capitol about free speech, and the fact that not all speech is free. For example, you can't shout "Fire" in a theatre. Being from America's Dairyland, the Honorable Senator Joseph McCarthy came into the conversation.

Now it is my understanding that the only place you can slander/threaten someone with no legal repercussions in on the floor of Congress. Any truth to this?

By Anonymous Anonymous, at 10:31 PM  

Senators and representatives are immune from slander for statements made on the floor. It's the "Speech or Debate Clause" of the Constitution. Article 1, Section 6. The immunity has been intrepreted broadly: "To 'prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary,' Gravel v. United States, 408 U.S. 606, 617 (1972), Art. I, 6, cl. 1, of the Constitution provides that 'for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place.'". Doe v. McMillan, 412 U.S. 306 (1973)

By Blogger Hammer, at 8:21 AM  

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