After three hours of deliberation on Tuesday, October 25, a Madison County jury found the client guilty of attempt to make a terrorist threat.
Twenty-six years ago, the client was born in St. Louis to Nigerian parents. By intermediate school, the client’s father saw his son’s academic social and progress hampered by stereotype: his scrawny son’s teachers suggested that, while he might never be any good at math, he most likely would be great at football, and the son had begun emulating the majority of African-American men he saw in the popular consciousness: entertainers. Therefore, the father decided to send his son to boarding school abroad.
The son spent some summers at home in the States, and eventually came back from boarding school to attend Southern Illinois University in Edwardsville.
Although the son was a pretty bad student, when later questioned by the police, his professors had nothing bad to say about him. Nor did his police-interviewed friends and acquaintances. By the time of his arrest, he was the president of his (African-American) fraternity. He was an aspiring entrepreneur and rapper. Of the 2000 or so pages from his notebooks entered into evidence and sent back with the jury, at least 80% of the writing devoted to his nascent rap lyrics and various business plans. He had performed on campus (and actually had released a single featuring Project Pat in late summer 2011).
He loved music, throwing parties, girls, and guns. He was a registered firearms owner and had recently purchased three .380 hi-points for approximately half their market value. He purchased these three pistols at the same time as a semi-automatic Mac-10, hoping to resell the pistols to fund the more interesting gun.
July 2007 was a busy time for the client. He was enrolled in summer school classes, and also in the process of moving between apartments on/near campus. He was a 22-year-old male college student, and gradually moving between the nearby locations. His car was not only filled with the usual car junk, but also extra items he was moving, including his winter clothes.
Moreover, his girlfriend lived in St. Louis, about 25 minutes away. As he drove back from her place one day, he ran out of gas, approximately two blocks from his on-campus apartment. He pulled over and parked his car on the rural campus road, intending to come back for it once he got gas money.
Over 48 hours later, campus police considered the detritus-filled car abandoned and began the process of towing it, including entering the locked vehicle and rifling through its contents. The car was filled with notebooks, loose papers, trash, CDs, clothing, and other items one might typically find in a 22-year-old-boy-in-the-process-of-moving’s car. On the floor between the center console and the driver’s seat, the police found a crumpled-up piece of paper, about 2″ by 4″, from a promotional asthma inhaler prescription pad. The paper had various notes on each side, including the words, “send $2 to….paypal account if this account doesnt reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another
prestigious highly populated university. THIS IS NOT A JOKE!”
Upon rifling through his car and finding this crumpled-up note on the floor, the police arrested the client. The grand jury charged him with attempt to make a terrorist threat, which is the act of committing one or more substantial steps toward committing the following crime (in relevant part):
“(a) A person is guilty of making a terrorist threat when, with the intent to intimidate or coerce a significant portion of a civilian population, he or she in any manner knowingly threatens to commit or threatens to cause the commission of a terrorist act as defined in Section 29D-10(1) and thereby causes a reasonable expectation or fear of the imminent commission of a terrorist act as defined in Section 29D-10(1) or of another terrorist act as defined in Section 29D-10(1). (b) It is not a defense to a prosecution under this Section that at the time the defendant made the terrorist threat, unknown to the defendant, it was impossible to carry out the threat, nor is it a defense that the threat was not made to a person who was a subject or intended victim of the threatened act.”*
The jury was also instructed that a “threat” is a statement “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals….Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536, 1547-48, 155 L. Ed. 2d 535 (2003) (emphasis added).
Upon the defense’s push, this case finally went to trial over four years after the client’s arrest. The attorneys voir dired 70 jurors, 69 of whom were white. The prosecution peremptorily struck the sole African-American juror within the first hour of voir dire. The venue is rural, but the defense did not seek a venue change because the surrounding Illinois counties are even whiter than Madison. Less than 20% of the 70 jurors had a college degree. Of the 12 jurors and two alternates, one was under the age of 30; two were under the age of 40. Jury selection began Monday, October 17 and ended Tuesday, October 18.
Halfway through the trial, the state’s very competent (and, might I explicitly editorialize, nice) forensic computer expert found a Microsoft Moviemaker project file that contained language very similar to that found on the note in question. This project essentially would have been powerpoint-like, in that it featured words, images, and background music. However, only the words were intact; neither the image nor sound files were accessible, although the project file showed where said files would have gone. This file was found on the computer’s autobackup drive, because someone had manually deleted the file in early June 2007. Although the expert stated that it is much easier to save a file, in that saving is generally automatic and there is a “save” option within the program, while someone must exit the program and go out of his way to delete the file, the judge found the file probative of the charge and admitted it in an evidentiary hearing on Monday morning.
In their closing argument, the assistant state’s attorneys presented their theory that the client had written the note, crumpled it into his car, and deliberately left his car on the side of the rural campus road with the knowledge and intent that the police would notice his car, enter his car, rifle through the items in the car, find the piece of paper on the floor between the center console and the driver’s seat, and communicate these six (of 40 or so) lines of text to the greater community, so that 25,000 hearers each would deposit $2 into the unspecified paypal account to reach the $50,000 requirement.
In his closing argument, the defense counsel argued that there was no specific intent to communicate the relevant message to anyone other the client, himself. The piece of paper was found in the location described above. The project file had been actively deleted, and nobody had ever heard of it before. The defense argued that the guns, which the state’s attorney had put into the jury’s view as often as possible — to the extent that the state had placed them on the witness box ledge when the defense’s expert witness on sociology and hip-hop was testifying about hip-hop’s content and creative process — were irrelevant to the charge of, essentially, intending to communicate a threat.
After three and a half hours, the judge called defense counsel because the jury had come to a verdict. As the jurors filed into the courtroom, all stared at the ground. The under-30 juror was the foreperson and read out the verdict of guilty.
The sheriff immediately took the client into custody, ignoring the father, who was standing two feet away and requesting to speak to his son.
Late that same evening, a local paper reported the verdict, and quoted the Madison County state’s attorney: “Gibbons said he felt the defendant’s own writings hurt him in the jurors’ eyes.’Having read hundreds of pages of the notebooks myself, there are the most despicable acts depicted in his writings,’ the state’s attorney said. ‘This is what he considers creative and art. He’s not ingratiating himself to anybody by writing and promoting that kind of filth. This case really comes down to his own words; if his own words show the kind of person he is, the jury judges him by who he is.'”** (Obviously, the jurors heard much more information than that included above. However, I have included only that which is probative of the charge, itself.)
*IL ST CH 720 § 5/29D-20