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Off to the dubitante ball

Federal law prohibits making threats to injure someone else.

The statute, 18 U.S.C. § 875(c), has been on the books since the 1930s, and it has been used to prosecute everything from extortion to stalking to basic promises to commit bodily harm.

Government prosecutors in Tennessee made some legal history when they scored a conviction under this statute against a guy who threatened a judge in a YouTube video. The case marked the first time YouTube provided the means to commit the crime.

The defendant, Franklin Delano Jeffries II, was embroiled in a tangled visitation fight. He wrote a song, “Daughter’s Love.”

But this tune wasn’t one of those “Butterfly Kisses”-like paeans to his kid. It wasn’t even a tune in which he was off in his truck and stopped to call from a pay phone to say, “I’m on my way, darling.”

No, it included tender lines such as, “Take my child and I’ll take your life” and “you don’t deserve to be a judge and you don’t deserve to live.”

Jeffries posted the video on YouTube, then sent messages about it to a number of his Facebook friends. He took it down 25 hours later. Too late. His ex-sister-in-law saw it and tipped the judge. The authorities also viewed the video and federal prosecutors went after Jeffries, gaining a conviction under § 875(c).

The 6th U.S. Circuit Court of Appeals affirmed this week in a unanimous panel opinion written by Judge Jeffrey S. Sutton.

Sutton worked through the defense arguments, which included discussion of whether the threat had to be objectively real to a reasonable person or subjectively real in the mind of the victim. And the First Amendment came into play as well.

But the Jeffries case was somewhat unusual. Sutton filed the affirmance, but he filed a second opinion – an “opinion dubitante.”

Wait a minute, you say. You’ve got concurrences and dissents. What is a dubitante?

It’s actually a third category that doesn’t get used very often. It’s a way for the judge to say, “I have some doubts and I’m not entirely happy with this result, but I’m not going to say it’s wrong. But I have some doubts.”

If you’ve never heard of it, you are not alone. A Marquette law prof, Jason Czarnezki, wrote a law review article a few years ago that said as of 2006, there only had been 626 dubitante opinions in American jurisprudence ever. The U.S. Supreme Court has used it 12 times.

What sent Sutton off to the dubitante ball in the Jeffries case?

He wondered if the 6th Circuit had been reading the law right. The statute doesn’t contain a definition of “threat,” which one might assume automatically requires some subjective sense of discomfort from the victim. But the conviction was in line with precedent.

Jonathan Harwell, Jeffries’ lawyer, told an Associated Press reporter that the dubitante opinion may be an invitation to ask the 6th Circuit should look at the case en banc; he is reviewing his options.

As for Jeffries, he is back in jail, Harwell said. He served 18 months for the YouTube video, then had his probation revoked. Presumably he has his guitar with him, but not his computer.

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