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Prosecutors say trustee's e-mail was not a crime

October 11, 2001

The e-mail that San Diego school board trustee Sue Braun sent to colleagues musing about shooting two board rivals might be an enormous political gaffe -- but it is not a crime, prosecutors said yesterday.

The missive cost Braun her position as president of the fractious board, but she won't be hauled into court.

That's because under the law, what Braun wrote "is not even a threat," said Deputy District Attorney Paul Morley.

Prosecutions against threatening communications are usually brought under Section 422 of the Penal Code. As defined under that law, threats must be made with the "specific intent" that it "be taken as a threat, even if there is no intent of actually carrying it out" and be communicated directly to the target by the person making the threat.

Braun's case had neither of those elements, Morley said.

After a contentious board meeting, Braun sent the e-mail to some administrators and trustees complaining about her inability to control the meeting. She specifically complained about rivals John de Beck and Frances O'Neill Zimmerman.

She sought suggestions about how to maintain better order, then added: "The only other idea I have is to shoot the both of them. I was thinking of a way to get them both with one bullet, but now think they are each too heavy for that to work."

Braun apologized and said the comments, while inappropriate, were made in jest and in private. She also stepped down as president of the school board.

Morley said it is clear from the context of the message that Braun did not have the specific intent to threaten or scare de Beck and Zimmerman.

"When you look at the text of the e-mail, it does not come across as something intended to be a threat," he said.

Further, the fact that the e-mail did not go directly to Braun's adversaries also is a factor. "It was not communicated, nor is there any indication it was even intended to be communicated, to those two people," he said.

Prosecutors frequently file threatening communication charges in domestic violence, stalking and hate crime cases. The maximum penalty upon conviction is three years in state prison.

In March, an 18-year-old Maryland youth, Patrick Smith, was charged in San Diego for making threats via an Internet messaging system to two students at East County high schools.

The threats came just days after the shootings at Santana High School, in which two students were killed. Smith eventually pleaded guilty to a felony charge of making a threatening communication. Stephen Cline, Smith's attorney, argued throughout the case that his client was goofing around during the computer conversations with the two students.

Cline said yesterday that he was annoyed when he learned Braun would not face charges.

"That's the same defense my kid had," he said of Braun's explanation that her remarks were in jest, "and it didn't help my kid very much. I clearly think it's a double-standard."

Deputy District Attorney Michael Groch, who handled the Smith case, said prosecuting Smith was appropriate under the law.

"He clearly intended these to be taken as treats," Groch said. "I don't think you can say as resolutely the same was true in (Braun's) situation."

Smith also admitted to investigators that he wanted to scare people, Groch said. And the prosecutor pointed out that one of the victims asks Smith in the exchange of messages if he was joking. Smith responded that he was not.

But Cline wasn't buying that. Years ago, he said, the charge was routinely tacked on to domestic violence cases and often used as a negotiating tool in hammering out plea bargains, he said. Now a conviction counts as a strike -- a serious felony -- under the state's three-strikes law.

Cline said that over the years prosecutors have extended the threats law to fit a variety of crimes. "I think if you are going to stretch that statute as far as it has been stretched, you have to do it for everyone," he said.

Before the district attorney's ruling, city schools police chief Tom Hall said school-related threats were being taking seriously and investigated following the school shootings, and in the aftermath of the nation's worst terrorist attacks. Zero-tolerance policies do not apply to elected officials, but Hall had acknowledged that if similar remarks were made by students or employees, swift action would be taken. Students would likely be expelled and employees removed from their position pending an investigation and disciplinary hearing, Hall said.

By Greg Moran, UNION-TRIBUNE STAFF WRITER. Copyright © 2001 Union-Tribune Publishing Co.


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