People v. Wood, 2017 IL App (1st) 143135 (November). Episode 426 (Duration 12:38)
Defendant thought his rant against the judge to the Public Defender was being made in confidence…not.
Defendant was on probation for telephone harassment for threatening to kill a coworker that got him fired.
Then the judge denied Defendant a chance to transfer his probation to Virginia where his girlfriend lived. Defendant was fired from multiple jobs and had difficulty meeting his probationary financial requirements, and he blamed the terms of his probation for his hardship.
Even though his probation was set to be terminated in April 2013, defendant figured he would not be released from his probation because he could not afford the fees.
He Makes The Call
Frustrated one night in March 2013, defendant looked up the public defender’s phone number and left a voicemail.
“There is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge, and the utter hate I feel for the prosecuting attorney, and the utter hate I feel for the corporation that bound me in chains. There’s not a day that goes by that I don’t pray for the death and destruction upon the judge and upon every single person who sentenced me, and in front of witnesses, in front of everyone, and my utter hatred of you and of every other attorney there. You make me sick to my motherfucking stomach. And I hate you. And I hate the prosecuting attorney. And I hate Judge Calabrese. And I hate you all so very, very much. For the evil you did is un-freaking speakable and the lack of remorse I feel is because of the injustice done to me. You all can suck it because I hate you all with the bottomless, deepest hate of my heart.”
Five days later, Assistant Public Defender Barry Horewitch went to Judge Calabrese’s courtroom, and while the judge was on the bench, told the judge that he needed to speak to him about something important.
Horewitch told Judge Calabrese about the voicemail and then played the voicemail for the judge in the presence of an assistant State’s Attorney.
At that time, no one knew the identity of the person that left the voicemail.
The judge alerted the sheriff in charge of security and his supervising judge.
A police officer was assigned to investigate.
About three weeks after the call was made and two weeks after the judge heard the message, defendant was identified as the caller.
Defendant was arrested and charged with threatening a public official. He admitted making the call, but claimed it was not a threat.
Was It A Threat?
Judge Calabrese testified at trial that he took the voicemail as a threat. He changed his routine, would not stay at the courthouse after hours, and was otherwise vigilant. He was scared for his own safety and that of his family.
Defendant claimed he was overwhelmed by his legal troubles and wanted to tell the public defender exactly how he felt. He claimed that he never intended the message for the judge nor did he think the judge would ever hear it.
Following a jury trial, the jury found defendant guilty of threatening a public official. The trial judge sentenced defendant to two years in prison.
Threatening A Public Official
To sustain a conviction for threatening a public official, the State must prove three elements beyond a reasonable doubt:
(1) that defendant knowingly and willfully communicated, directly or indirectly, a threat to a public official;
(2) that the threat would place the public official in reasonable apprehension of immediate or future bodily harm; and
(3) that the threat was related to the official’s public status.
Defendant argues that his conviction should be reversed because he did not convey any communication to Judge Calabrese at all, either directly or indirectly, and because the content of the communication was not a true threat.
We begin by analyzing whether defendant even made a threat to Judge Calabrese.
A true threat is…
a communication in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
The Case Law
Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.
Again, the part of the defendant’s communication that the State principally relies upon to argue in favor of upholding the conviction is defendant’s statement that
“there is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge” and
“there’s not a day that goes by that I don’t pray for the death and destruction upon the judge.”
It Was Just A Dream
Neither of those statements individually nor the communication in its entirety threatens “immediate or future bodily harm, sexual assault, confinement, or restraint.” See 720 ILCS 5/12-9(a)(1)(i) (West 2012).
Neither of the statements nor the communication in its entirety contains a “serious expression of an intent to commit an act of unlawful violence to a particular individual.”
A person expressing a dream for revenge is not the same as an expression that the person intends to undertake physical retaliation or commit violence. Dreaming about revenge in no way proves that defendant was communicating an intent to seek violent retribution.
Defendant made no actual threat of undertaking any act related to his dream for revenge. In the same way, praying for the death and destruction of the judge does not amount to a threat that defendant is going to do anything so that his prayers are realized.
The statements are not “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual,” as the Supreme Court requires for criminalizing such speech.
Defendant never said he was going to do anything—just that he hoped and prayed bad things would befall those that he felt had wronged him.
On the flip side, defendant testified that he did not intend for the judge to hear the communication and specifically chose the public defender because he thought he could air his grievances confidentially.
The State points out that defendant was admittedly upset with Judge Calabrese’s ruling and that he called after-hours, from a blocked number, and did not leave his name.
The State emphasizes that defendant mentioned Judge Calabrese by name in the message.
Defendant also had a previous conviction for threatening a former coworker on the phone.
When reviewing the record, there is no evidence justifying a reasonable inference that defendant intended to convey the idea of violent retribution. Hypothetical and aspirational statements are not true threats as a matter of law.
Even back to the basic dictionary definition, defendant did not communicate an “intent to inflict harm.” He did not communicate an intent to do anything.
While distasteful, inept, and crude, defendant’s statement is not criminal. It is a vague, hyperbolic statement expressing defendant’s feelings, not making a true threat.
The State cannot criminalize a defendant’s hope that a judge dies, even if the defendant articulates those hopes. The State cannot criminalize a defendant’s dream for revenge unless, along with that expressed dream, the defendant seriously expresses an intention to commit an act of unlawful violence to fulfill his dream.
There was no such expression in this case.
Was It Reasonable For The PD To Believe It Was A Threat?
The referenced statements do not warn of any future harm. They are vague and ambiguous; they do not indicate defendant has the means to carry out a threat; they do not indicate any actual intent to carry out a threat or any intent to affirmatively do anything.
The lack of specificity and the lack of an expression that defendant had any intention to do anything makes it impossible to find defendant’s rant to be “a serious expression of an intent to commit a violent act.”
The State offered no evidence that defendant intended for the judge to hear this communication.
He’s In The Clear
There is a difference between the public defender feeling obligated to alert the judge about the message and defendant knowingly transmitting a threat to the judge.
The evidence at trial proved the former, but not the latter. Reversed.