Man’s conviction for threat against judge reversed

Friday, October 21, 2011

A Colorado appeals court has reversed the conviction of a man who was charged with threatening a judge by way of comments the man made to a mental-health evaluator.

According to the appeals court, the man could not be convicted of making a true threat under the state law unless he knew that the evaluator had a duty to report his statement to the judge.

Shannon Dillon Berry had a friend drive him to the hospital emergency room at a place and time undisclosed in court papers. At the emergency room, an inebriated Berry told a nurse that he would kill someone if released from the hospital. The nurse informed the mental-health evaluator, who then spoke with Berry.

At this meeting, Berry told the evaluator that he had been thinking of killing his ex-wife, her attorney and the judge who presided over his divorce case. The evaluator contacted his ex-wife who said Berry would make such statements only if he was drunk. However, when the evaluator further queried him, Berry said he had the same thoughts when he was sober.

The evaluator felt obligated to report that Berry was an imminent threat to himself and others and warn those individuals whom he said he would like to harm, including the judge. The police informed the judge of the threatening statements and arrested Berry under a statute that prohibits retaliating against a judge.

The law provides:

“An individual commits a retaliation against a judge by means of a credible threat … if the individual knowingly makes the credible threat:

“(I) Directly to the judge; or
“(II) To another person:

“(A)    If the individual intended that the communication would be relayed to the judge; or
“(B)    If the other person is required by statute or ethical rule to report the communication to the judge.”

After being convicted of violating the statute, Berry appealed. He argued that he didn’t violate the law because he didn’t know that the mental-health evaluator would communicate the threat to the judge. He also argued that his comments were protected by the First Amendment.

The Colorado Court of Appeals agreed with Berry’s argument in its Oct. 13 decision in People v. Berry. Focusing on Berry’s contention that the law required a credible threat be “knowingly” communicated to a judge, the court wrote:

“If such knowledge were not required, the crime of retaliation against a judge could be committed by an individual who has no anticipation that the judge would be make aware of the threat.”

The opinion added: “We conclude, then, that to commit the crime of retaliation against a judge … an individual must know when making the threat that the person to whom the threat is communicated is under a duty to report it to the judge.”

Applying this standard, the appeals court determined that the jury had no evidence to determine that Berry knew that his statements would be relayed to the judge.

Mike Saccone, communications director for the Colorado Attorney General’s Office, said, “No decision has been made on whether we will appeal. We are still assessing our options.” Attorneys did not respond to queries about when and where the incident took place.

The case drives home the point that in true-threat prosecutions, the best argument often is not a broad-based constitutional argument, but simply a well-reasoned argument from the language of the law.