First Post-Elonis Threat Case Handled By Appeals Court And We're Still No Closer To Discussing The First Amendment

Free Speech

from the procedural-errors-FTW! dept

The Supreme Court’s punt on true threats vs. free speech in the Elonis case has managed to pay off for one convicted criminal. While the nation’s top court waits for the system to generate a better test case (and for defense lawyers to add up billable hours), the country will have to make do with the with the answers/non-answers provided by the decision.

Because the Supreme Court’s ruling doesn’t explicitly consider the First Amendment question, neither will anyone else, which makes a SCOTUS rematch slightly more unlikely. And the vague set of “rules” handed down in the decision that only sort of determined what the law is not have been applied to Clifford Houston and his angry, lawyer-directed phone calls.

Houston is a lifelong criminal who was tried for his involvement in a robbery/shootout that left a sheriff’s deputy and his ride-a-long dead. Houston’s lawyer, James Logan, managed to extricate Houston from felony murder charges in two consecutive trials, which resulted in a mistrial and an acquittal, respectively. That’s some good lawyering.

Logan, however, was under the illusion that Houston would pay his legal bills. Houston obviously thought all legal work done on his behalf should be pro bono. Logan decided the only way he was going to get paid was to exercise his lien on Houston’s property, something he acquired up front before taking Houston’s case. Houston, back in jail for a firearms offense, soon expressed his displeasure at Logan’s move against “his” property.

Houston called his girlfriend from jail and said the following:

HOUSTON: I’ll kill that motherf[***]er [referring to Logan] when I get out. Hey, I ain’t kidding! I ain’t akidding! They can record it! They can do whatever the hell they want! That motherf[***]er opens up my house, I’ll kill his ass! When I get out of this motherf[***]er, he’s dead! . . .

HOUSTON: The only thing [Logan]’s gonna get from me is a f[***]ing bullet! That’s the only thing that son of a b[****] gonna get from me! That’s the only damn thing! They better get somebody to lock that son of a b[****] up! ‘Cause I’ve got something for Mr. damn Logan! You let me get out of this motherf[***]er in any shape, form, or fashion, and he’s got a damn problem! . . .

HOUSTON: You tell any of my family, you tell Cody, you tell Rachel, any of them, to kill that son of a b[****]! . . . Any of my, any of my people has got my permission to kill that son of a b[****]!

HONEYCUTT: They ain’t gonna do that. I mean, they ain’t gonna shoot nobody.

HOUSTON: Well, I ain’t got no damn problem with it. I ain’t got no damn problem with it.

Pat Honeycutt, the voice of reason in this exchange, calmly noted that Houston’s extended family was probably not going to shoot a lawyer for foreclosing on property owed to him by Houston.

This conversation led to yet another indictment for Houston, this time for “transmitting a threat in interstate commerce.” At his trial, the district judge issued the following instructions to the jury:

“A statement is a true threat if it was made under such circumstances that a reasonable person hearing the statement would understand it as a serious expression of intent to inflict injury.”

Houston was found guilty and sentenced to five years in prison. Houston appealed this decision, which worked out well for him as the Supreme Court was just reaching its Elonis decision. In the decision, the Supreme Court basically invalidated this jury instruction, stating that, as delivered, it failed to account for other mitigating factors.

“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

Once again, there’s nothing in this decision that even comes close to addressing how much distance actually lies between free speech and true threats. It’s a longish procedural discussion centering on the difference between “negligence” and “awareness.” Of the areas the appeals court explores, the discussion of Houston’s mental state during the phone calls is the closest it comes to addressing speech protections (or the lack thereof).

Anyone listening to Houston’s recorded diatribe (and we have had the pleasure) could plausibly think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening).

As the court notes, both possibilities remain about equally probable, at least in terms of theoretical jury members.

Recognizing that Houston was speaking with his girlfriend, a jury could reason that he was venting his frustration to a trusted confidante rather than issuing a public death threat to another. That Houston’s girlfriend dismissed some of his comments out of hand (“[T]hey ain’t gonna shoot nobody”) would allow a jury to infer that he was ranting and raving rather than expressing an intent to cause harm. Houston was furious, to be sure, but he was not necessarily cogent— perhaps not even cogent enough to recognize the risk that his words would be perceived as a threat, which is what even the recklessness standard would require.

It goes on to point out that because both explanations are equally credible, Houston stood a reasonably good chance of being acquitted of the threat charges, but only up until the trial court tipped the balance with its erroneous instruction to the jury that “negligence” was the same as criminal intent. Weighing this with the Elonis decision, the appeals court finds in favor of Houston, reversing his conviction and kicking it back to the lower court.

One interesting aspect of this case that has nothing to do with threats, free speech or anything else the court might have needed to consider before reaching this conclusion is the “interstate” portion of the charges. Houston also protested this section of the charges. The government claimed that the “interstate” aspect of the charge was supported by the fact that — despite it being a Tennessee-to-Tennessee phone call — the call was routed through a Louisiana server.

The court bought this assertion, claiming a “reasonable juror” would find this logical. I’m not so sure. Because this aspect will rarely, if ever, be central to a disputed case, it’s likely to remain unexamined. The problem is that prisons — both public and private — rely on a variety of (overpriced) private service providers for phone connections. Some may be located out of state for purely self-interested reasons, like dodging more restrictive local regulations. Some prisons may route calls less directly simply because it is more profitable for them — and the contractors they retains — to do so. So, in many cases, every call, no matter how local, could be considered “interstate,” a term that tends to add additional months and years to violators’ sentences.

Filed Under: elonis, first amendment, free speech, true threats