- The Washington Times - Wednesday, March 3, 2010

A construction worker charged with threatening to strangle Maryland Gov. Martin O’Malley could get a new trial, after a special appeals court ruled last week that a Baltimore County trial judge failed to instruct the jury on the difference between threats and political speech.

Maryland Attorney General Douglas Gansler must now decide whether to appeal to Maryland’s highest court or send the case back to Baltimore County to be retried.

On Monday, State’s Attorney for Baltimore County Leo Ryan vowed to retry the case if the state does not appeal.

“There’s always a tension between political speech and illegal speech that threatens a public official,” he said, acknowledging the error at trial. “Courts struggle with that, and rightly so.”

Walter C. Abbott Jr. of Parkville, Md., was convicted in October 2008 of making a criminal threat and sentenced to six months in jail, a $500 fine and two years’ unsupervised probation. The jail time was suspended.

The case arose in March 2008 after Mr. Abbott sent a message via the governor’s Web site, which solicited constituent feedback. Claiming he was angry that his business was hurt by the governor’s immigration and labor policies, Mr. Abbott wrote: “If I ever get close enough to you, I will wrap my hands around your throat and strangle the life from you.”

Police came to Mr. Abbott’s house within hours of the message and found a 9 mm handgun, which was registered to Mr. Abbott. They also discovered that a week earlier, he had been in Annapolis at a political event attended by the governor. Mr. Abbott, who had no criminal history of violence, was charged with threatening to injure a public official.

After rejecting a plea offer of probation before judgment, Mr. Abbott was convicted by a Baltimore County jury - but without the jury receiving a critical instruction from Judge Dana M. Levitz.

“I find it disgusting, I find it outrageous,” Judge Levitz said at trial, refusing a request by Mr. Abbott’s lawyer that he instruct the jury on the difference between a threat and free speech. “It doesn’t make any difference that you say ‘because I disagree with his politics.’ The law doesn’t permit that.”

The appeals court disagreed.

“The [judge] never informed the jury that only a true threat falls within the statute, and that political vitriol may fall outside its ambit,” the three-judge panel wrote. “The [judge] should have instructed the jury as to the requirement of a true threat, which is distinguished from constitutionally protected free speech.”

Arthur M. Frank, attorney for Mr. Abbott, hailed the ruling, saying he felt “all along that the guy didn’t get a fair trial.”

Yet Mr. Ryan, the prosecutor, insisted that Mr. Abbott’s statement clearly constituted a threat.

“You can call an official an idiot, you can call him foul names, but you can’t say you’re going to harm him,” he said.

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