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Free Speech

Illinois Appellate Court Reverses Conviction for Threatening a Judge

A defendant's telling his lawyer, "when I get out of here, I'm going to get that judge" and "I don't make threats[,] I make promises" isn't a true threat, the court holds.


From People v. Roach, decided Thursday by the Illinois Appellate Court (opinion by Justice Robert Steigmann, joined by Justices Peter Cavanagh and James Knecht):

In November 2020, during a meeting with defendant at the Winnebago County jail, defendant told [his lawyer,] Braun, "When I get out of here, I'm going to get that judge" [referring to Judge McGraw -EV]. Braun responded, "That sounds like a threat." Defendant said, "I don't make threats. I make promises." Braun testified defendant was a little agitated, and Braun took defendant's statements seriously "based upon all the information [Braun] had at that time."

Braun alerted the judge of the threat, which led the defendant being prosecuted for it and ultimately being convicted and sentenced to two years in prison. In the course of the investigation, a detective interviewed defendant on video:

During the first 25 minutes of the video, defendant denied threatening McGraw. At around the 25-minute mark of the video, the detectives left the interview room and defendant began speaking to the camera. Defendant expressed his anger with McGraw, trial counsel, and the police through a cacophony of expletive-filled, violent statements, punctuated by brief asides to say he was not threatening anybody. Defendant's comments toward the camera continued until Witt returned to the interview room, at which time defendant maintained to Witt that he did not threaten McGraw.

The appellate court reversed, concluding that the statements fell outside the "true threats" exception to the First Amendment, and thus weren't covered by the state threats statute:

[N]otably missing from Braun's testimony is any mention of violence by defendant, explicit or implicit. The only detail Braun provided regarding the circumstances of defendant's isolated statements to Braun ((1) "[w]hen I get out of here, I'm going to get that judge" and (2) "I don't make threats[,] I make promises.") was that defendant was a little agitated when he made them.

The State relies heavily on the video recording of Witt's interview with defendant to explain the purpose and meaning of defendant's statements to Braun. The State asserts that in the interview, defendant clarified what he meant when he told Braun he was going to get McGraw. However, that interview took place months after defendant made the statements to Braun and after defendant had been charged with threatening McGraw. Further, at no point in the interview did defendant clarify what his statements to Braun meant. Instead, defendant maintained all along that he did not threaten McGraw.

This court's earlier opinion in Dye, is instructive. In Dye, the defendant was meeting with the public defender when he became irate after receiving bad news regarding his case.  The defendant then raised his voice, threatened to complain about the public defender to the trial judge, and accused her of "selling him out and working for the State." After the public defender told him to leave, defendant told her multiple times, "I'm gonna get you," while pointing at her.  She asked if he was threatening her, to which he replied, "No, no. I ain't threatening you." A paralegal then stepped between the two because of "'the way [the defendant] was standing, his mannerisms, how aggressive he was with his speech, [and] his posture.'" The trial court found the defendant guilty of threatening the public defender.

On appeal, this court reversed the defendant's conviction, concluding that no reasonable trier of fact could conclude that the defendant intended to physically threaten the public defender. In so holding, this court emphasized the ambiguity of the phrase "I'm gonna get you"—namely, that the phrase does not necessarily mean a threat of violence. Instead, the court noted, "[T]he victim of a prank or of Machiavellian office politics might tell the perpetrator, 'I'll get you for this,' without intending to be understood that the retribution will be physical. The Internal Revenue Service will get you if you lie in your income tax return." Accordingly, this court held that the statement "I'm gonna get you" was too vague and ambiguous to be a threat of violence.

Although, the defendant's statement in the present case, that he was going to "get" McGraw, is nearly identical to the defendant's statement in Dye, we note that the evidence providing context for the threatening nature of the statement in Dye was much stronger than in the present case. Here, just like in Dye, defendant's statement was too vague to communicate anything of substance; instead, his statement requires us to speculate as to what exactly defendant even threatened to do to McGraw. Without more context or additional clarifying statements, defendant's statements do not rise to the level of a true threat….