Georgia's Supreme Court says a Dodge County man who threatened to post a sex tape of a court official didn't commit a crime.
The court on Monday said it wasn't a real threat -- it was free speech.
According to the court, Dodge Court issued a bench warrant against Lister Harrell two years ago after he failed to show up for a court case. He was accused of illegally shutting off electricity to a tenant.
After the warrant was issued, Harrell allegedly posted on Facebook that he would share a sex video, featuring a deputy court clerk, unless the warrant was dropped.
There actually was no such tape. According to the case summary, Harrell later admitted lying about the court official and the sex tape.
But Harrell was charged with two counts of intimidating a court official.
On Monday, the Georgia Supreme Court threw out his conviction. They said Harrell's post was not a true threat, because he never planned violence against court officials.
According to the court, his lawyers argue that the conversation and Facebook post about the alleged sex tape were "objectionable and downright bad," but not "true threats."
The court official that he connected to the sex tape testified that she was "embarrassed" but not threatened, according to the court.
Harrell admitted making the phone call and Facebook posting and "lying" about the court officer, "but he denied any threats or intimidation," according to the court.
The court also threw out Harrell's conviction from the same trial on an animal-cruelty case. The court says the two cases were unrelated and should not have been tried together.
Harrell was convicted and sentenced to six years in state prison.
Here is the Georgia Supreme Court's summary of the decision:
HARRELL V. THE STATE (S15A1045)
The Supreme Court of Georgia has reversed the judgment against a Dodge County man who was convicted of intimidating court officers and animal cruelty.
In today's unanimous opinion, Presiding Justice P. Harris Hines writes for the Court that the acts of intimidation against the court officers did not constitute "true threats" of violence and therefore were protected by the First Amendment's right to free speech. Furthermore, the opinion says, all the charges should not have been tried together because there was no proven connection between them.
According to the facts of the case, Lister W. Harrell was charged with violating the state law that deals with a Landlord's Duties to Tenants by allegedly cutting off a tenant's electricity. When he did not appear for court, an arrest warrant was issued. In April 2013, Harrell called Dodge County Court Clerk Rhett Walker. Walker testified that Harrell said "that if I didn't have that bench warrant lifted by such and such a time that day that he was going to turn my world upside down." Walker testified the call "concerned me" and he had to "try to keep from getting a little nervous because I knew from what was going on that he may not have been stable mentally." And Walker stated, "I felt intimidated." Deputy Chief Clerk Tammy Graham testified that she learned from friends and family that Harrell had posted on Facebook a false statement that Graham had engaged in group sex with him and others. While no such video existed, Harrell claimed he would provide access to a video depicting the group sex if the bench warrant was not lifted. The posting was read to the jury. Around the same time, Harrell called Shirley Webb, his former girlfriend and the mother of his children. The two previously had been engaged in litigation, mostly regarding domestic issues. Harrell called Webb and left a voicemail that she would find a "dead pussy" in her mailbox. In a second voicemail, he accused Webb of engaging in group sex and threatened to release a video of the sex acts on the Internet. Sid Carter, Webb's current boyfriend, testified that after hearing the voicemail he went to the mailbox and found the dead cat stuffed inside. He said that while he was still at the mailbox, Harrell drove by, slowed down and pointed at the mailbox, which was by then closed. In addition to the testimony, both voicemails were played for the jury.
Harrell was arrested and in June 2013, he was indicted on two felony counts of Intimidation of a Court Officer and one felony count of Aggravated Cruelty to Animals, which charged that Harrell "did knowingly and maliciously cause death to a cat." Harrell was eventually released on bond, but his bond was later revoked when he was charged with several unrelated felonies that included Aggravated Stalking (regarding his daughter) and Driving Under the Influence. At trial, Harrell testified he did not kill a cat or put a dead cat into a mailbox on April 16, 2013. He admitted making the phone call to Graham, making the Facebook postings, and lying about Graham, but he denied any threats or intimidation. In June 2014, a jury found Harrell guilty of misdemeanor Cruelty to Animals and to both counts of intimidating a court officer. He was sentenced to six years in prison followed by six years on probation. Harrell then appealed to the state Supreme Court.
Georgia Code § 16-10-97 makes it illegal for a person to try to intimidate through "any threatening action, letter or communication" an officer of the court. Harrell argued on appeal the statute is unconstitutional because it prohibits speech that is protected by the First Amendment of the U.S. Constitution.
Today's opinion points out that "a state can criminalize some speech made with the intent to intimidate another without running afoul of the First Amendment," based on the U.S. Supreme Court's 2003 decision in Virginia v. Black. "However, we conclude that Georgia Code § 16-10-97 (a) (1) was unconstitutionally applied to Harrell."
The U.S. Supreme Court stated in Black that, "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." The U.S. Supreme Court noted in Black that "true threats" are statements in which the speaker "means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals."
In Harrell's statements to Graham, "nothing in the communications threaten an unlawful act of violence to her as required by Black," today's opinion says. And while Walker testified he "felt intimidated" by Harrell's Facebook posting and telephone call, there was "no reference to any form of violence in Harrell's communications, nor even an intimation of such."
As a result, "his speech cannot be considered to constitute 'true threats,' and thus does not constitute any proscribable act of intimidation," the opinion says, and his convictions for violating § 16-10-97 must be reversed.
Harrell also argued on appeal that he should not have been tried on the animal cruelty charge in the same proceeding in which he had to answer the charges of intimidating court officers. He stated the trial court erred in denying his motion to sever the charges, "and we agree," today's opinion says. "Although the acts were alleged to have been committed in close proximity of time, the record is devoid of any indication that they were committed in pursuit of some common scheme or that they had some connection. As alleged, they were simply separate crimes of different character, committed 13 days apart."
While the State argued that Harrell's threatening communications were intended to intimidate Walker, Graham and Webb in relation to court cases involving him, the State presented no statement or testimony "that would allow an inference that there was any case existing between Webb and Harrell at the time of the acts alleged," the opinion says. "And, there was no evidence that Harrell's motive for contacting Webb was to attempt to intimidate her into any action."
"Rather, there was simply no connection shown between the alleged animal cruelty and the alleged crimes of endeavoring to intimidate court officers," the opinion says. "As there was no showing that the crimes alleged were based on the same conduct, were part of a single scheme or plan, or were a series of connected acts, joinder was not authorized."
"Further, the failure to sever the counts must be considered harmful error," the opinion says. The charges of endeavoring to intimidate a court officer "should not even have been presented to a jury." "The prejudicial effect of having to defend the charge of animal cruelty when joined with dissimilar, unconnected charges is exacerbated when those charges are not themselves properly presented for prosecution."
Attorney for Appellant (Harrell): Thomas Jarriel
Attorneys for Appellee (State): Timothy Vaughn, District Attorney, Christopher Gordon, Asst. D.A.
