9th Circuit holds that jury should decide whether a threat is real

Jury should decide if threat is real, 9th Circuit says

A Bay Area man must stand trial for repeatedly emailing threats to kill Senate Minority Leader Mitch McConnell, a unanimous 9th Circuit panel ruled.

Monday's unpublished decision reversed an opinion by Judge Charles R. Breyer of the Northern District of California, who dismissed the government's case, ruling that, as a matter of law, the messages were not real threats. United States of America v. Howard Weiss, 475 F. Supp. 3d 1015 (N.D. Cal. 2020).

The 9th Circuit panel found that Breyer improperly substituted his judgment for that of a jury, when he held that Howard Weiss' "statements predicted that other people would hurt Senator McConnell, not that Weiss would."

The case stems from a slew of emails Weiss sent to the Republican senator from Kentucky over the course of a year, beginning in October 2018. Sent from fake email addresses, these messages claimed "the Resistance" would kill McConnell, and stated such gruesome things as, "The Kentucky Resistance says they are going to cut your throat from ear to ear ...."

The core legal issue in the appeal was whether a judge has the power to decide the defendant did not have a connection to "The Resistance."

-- Ilan Isaacs