Tuesday, December 20, 2011

People v. Lowery (Cal. Ct. App. - Dec. 19, 2011)

Eddie Lowery was in prison for allegedly stealing $250,000 from 88-year old Joseph Gorman, whose mobile home he and his wife occasionally cleaned.  Lowery was acquitted, but during his time in jail, he made a tape-recorded statement in which he told his wife (over the jailhouse phone):  "Well, guess what I'm gonna do? I'm gonna kill the bastard. And I'm gonna go down to Mr. Gorman‟s house, maybe this week, and I'm gonna blow his fucken‟ head away."

Lowery says that he wasn't serious; that he was just blowing off steam to his wife, and so this wasn't a true "threat" -- but was instead protected by the First Amendment.  The California Supreme Court takes up the case and narrows the statute so that it's consistent with the First Amendment, and then remands the case to the Court of Appeal to apply the new test.  The issue is whether, on the facts of this case, the statement was really a threat.

The Court of Appeal holds that the trial court erred, but that the error was harmless.  Its core argument is that the evidence was pretty strong that Lowery was making an actual threat because he made these statements over the jailhouse telephone even though he knew -- and was repeatedly advised during the call -- that the call was monitored.

Which struck me as strange.  I'd have thought this argument went the other way.  That you know the authorities are listening seems to me to be evidence that you're not serious when you say you're going to kill someone.  As few people make such actionable threats when they're, say, right in front of a cop.