Posted on 09/07/2013 11:59:11 AM PDT by oxcart
A judge Friday ordered Sooner Tea Party co-founder Al Gerhart to face trial in a blackmail case.
Gerhart, a carpenter, is charged with two felonies over an email he admits sending to a state senator in an effort to get legislation passed.
Oklahoma County Special Judge Susan K. Johnson rejected defense arguments that the email was protected political speech.
“Your First Amendment rights are on trial, not just mine,” Gerhart told news reporters after the ruling was made at the end of a two-hour preliminary hearing.
Sen. Cliff Branan, R-Oklahoma City, said he felt anxious when he first read the email. “It kind of got the hairs up on the back of my neck,” he said.
Gerhart, 55, of Oklahoma City, is charged with blackmail and violating the Oklahoma Computer Crimes Act. He pleaded not guilty Friday.
Gerhart sent the email March 26, promising to make the senator a laughingstock unless the Senate Energy and Environment Committee passed a bill dealing with a United Nations plan.
Branan is chairman of the committee.
Misspelling one word, Gerhart wrote: “Branan, Get that bill heard or I will make sure you regret not doing it. I will make you the laughing stock of the Senate if I don't hear that this bill will be heard and passed. We will dig into your past, yoru family, your associates and once we start on you there will be no end to it. This is a promise.”
Under state law, blackmail can involve a written communication that threatens to expose information about someone “which would in any way subject such person to the ridicule or contempt of society.”
The senator testified that at the time he got the email he had not made a decision whether the Senate Energy and Environment Committee would take up the bill on the U.N. plan. He acknowledged, though, that he had been inclined not to hear it.
“I felt it was a solution to a problem that didn't exist,” he said.
The House-passed bill ended up not being heard in the committee because the Senate sponsor pulled it from consideration after learning of Gerhart's email.
Assistant District Attorney Robert McClatchie asked Branan: “Did you believe it was trying to make you do something you did not want to do?”
“Yes,” Branan replied.
“I definitely felt threatened,” the senator said.
“It was not your normal email,” he testified. “I felt like my two young children are out of bounds, as well as my wife.”
The senator explained that he worried Gerhart had sent the email to others and somebody who was mentally unstable would do something irrational.
Tommy Johnson, an agent with the Oklahoma State Bureau of Investigation, testified Branan said Gerhart had a Rolodex of crazy people.
Admitted into evidence during the preliminary hearing was a recording of Gerhart's April 2 news conference at the Capitol.
At the news conference, Gerhart told reporters “the scuttlebutt” at the Capitol was that the senator reacted the way he did to the email because of fears an infidelity with an executive assistant would be uncovered.
The senator, who has been married almost 19 years, said Friday the affair allegation was not true.
His longtime executive assistant, Kathy Townsend, testified, “That is absurd. If Sen. Branan was going to … I don't know that he would choose a gray-haired grandmother to have an affair.”
Gerhart can raise his constitutional defense again before the trial judge. His next court hearing is Sept. 18.
“...Gerhart. Sounds like he is a bad apple in the Tea Party basket.”
A lot of the principals in landmark civil right cases are not folks we might invite over for dinner. This email to an elected politician should be found to be 1st Amend. protected speech. The words did not include direct violence to the person or his family, only research to expose past or present stands which may humiliate the politician. A public person has to expect criticism of this type - a private person so criticised may have a threat complaint.
On reflection, I think he may be acquitted, not because it is acceptable political speech, which according to the statute it isn’t; but because it is not a tangible threat of something known.
That is, if he had said he had evidence of something that would ruin him politically, it would have been blackmail.
But he said he would *find* such evidence and use it against him. That is too nebulous to be blackmail.
I am in agreement with you. That he is irascible and disliked by fellow TP activists is not insignificant. He probably will be exonerated on this charge since it is obviously a free speech issue. That he got under the judge’s skin is clear.
This guy was an idiot to send that email. Yikes.
I agree with the opinion below that the statute is written very generously in favor of the state which makes conviction “easy”.
However, there are at least two big problems with this case.
He doesn’t threaten to expose anything in particular. It’s just a promise to do what any politician already expects (either does or should) of a competent political adversary. The fear of a disgruntled constituent or political adversary digging up dirt just goes with the territory of public office, and should come as no surprise to anyone. If the email referenced something very detailed like a known crime or deviant act along with a demand for money or individual favor then maybe it would be a good case.
But these facts have only to do with a citizen wanting public policy that affects all to be addressed. And there’s nothing mentioned that would be revealed or done that isn’t already commonplace and expected.
Lastly, the best defense here is that the statute is unconstitutionally vague and broad under the 14th Amendment to the US Constitution.
The statute as written easily captures a whole range of speech that is protected under the 1st Amendment.
If I were his attorney I would start with the constitutional deficiencies of the statute and be certain to preserve that error for appeal. If that argument fails at the trial level then I would craft a whole laundry list of scenarios whereby harsh, disrespectful, and challenging language (all protected speech) could be criminalized if you mess with the elite.
I don’t see an Oklahoma jury going for it if the defense attorney plays the narrative right.
That said, if I were the judge I would probably strike down that statute for being unconstitutionally vague and overly broad.
This is so stupid. They are wasting time and money on a waa=waa case. Branan is wasting time and money pretending to be someone of integrity with a case- Going to this extreme to cover his ass. Mr. Gerhsrt isn’t the one looking like a crazy fool. What was said was probably nothing but the truth, but It hurt his feelings...awwww. Bransn and who ever else is playing games needs to man up. This state has to many real issues that they aren’t taking care of. What a bunch of petty idiots. Can’t wait for election time.
Jeeze, of all the internet forum posts on this issue you guys probably understood this persecution and the risk to everyone better than anyone.
Google BrananTheBigot to hear the rest of the story. In short it was a public email, a reply all back to a mass email that included a bcc list, me, and the senator/cry baby. Even they admitted at the preliminary trial that email might have reached hundreds of others so it was in no way a private communication, done in the shadows type of communication.
Another key part was that I sent two emails that night, killing a key senate bill with the other email. The word reached the first set of attorneys, one worthless sycophant that a friend had recommended on another matter the previous year, and an ACLU guy that was competent but no trial lawyer and he was way over his head. Anyway, the word was sent to the first set of attorneys :Gerhart is to be punished because he has gone too far. Meaning I could kill their really stupid self serving legislation, not the marginal stuff, just the really stupid bills, by leaning on the House members.
Third point, the D.A. that charged me personally signed the charges. I had drug his sorry corrupt corpse before a grand jury a few years earlier. He scrambled to repay 10 grand in illegal campaign contributions and finally prosecute four or five lawyers that had been arrested on felonies up to four years earlier (all campaign contributors, some maxed out). Grand jury doesn’t get enough votes to indict him, typical voters unwilling to challenge the establishment. Grand Jury report gives my group credit for forcing the investigation over the recommendations of the A.G. office.
Of course the Judges wife worked for the D.A. that prosecuted me, no conflict here in their eyes. And the ACLU did an excellent job explaining how numerous Supreme Court decisions had settled coercion/free speech issues and how six states have previously had their similar blackmail laws struck down. They gave a laundry lists of problems from a store owner threatening to post a bad check to a lawyer threatening to file a lawsuit.
None of it mattered, the judge slammed down on the vast majority of our witnesses and evidence including the dude that sent me and the senator/cry baby the email, the senator that asked everyone to pressure the senator/cry baby over the bill, and they even showed only half of the press conference at the trial, leaving out the part about the D.A. being in a conflict of interest situation over the Grand Jury testimony I gave against him.
Prosecutors repeatedly interrupted in closing statement and was sustained. Pointed his finger at me in front of the jury and said although the email took thirty seconds to write and send, that I could murder someone in thirty seconds or rob a bank in thirty seconds. That was allowed by the judge, overruled my attorneys.
Found guilty, given a thousand dollar fine and another two or three in court costs. Appealing based on overly broad/14th amendment basis.
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