Does `Dead' Mean Just That? -- Sen. West's Case Could Test Limits Of Rough-And-Tumble Political Speech

OLYMPIA - If the Thurston County prosecutor follows the recommendation of Olympia police and files felony charges against state Sen. James West for threatening a veteran political operative, it could be a tough case to win in front of a jury, according to attorneys who have worked both sides of the law.

While prosecutors review the case for a decision later this month, West is relying on history, literature and a prominent criminal defense lawyer to show that when he said "dead," he meant dead politically, not dead physically.

After all, from Winston Churchill to Bill Clinton, politicians often use the language of violence and talk of fatal consequences.

There are lots of metaphors of war and street violence, even of terminal illness.

It's difficult, though, to find examples similar to the late-night anonymous telephone message found last month by Tom McCabe, executive vice president of the Building Industry Association of Washington (BIAW).

Family, friends and supporters of McCabe are not interested in deconstructing the threat. Dead, they say, means dead, and West clearly violated the law that says you can't threaten to kill people.

West was angry about a full-page BIAW newspaper advertisement in his hometown of Spokane that criticized the Republican for not supporting a bill to eliminate school "impact fees" homebuilders pay on new construction.

His anger prompted a terse call to McCabe's answering machine,

with an abrupt "you're dead," as part of it.

Olympia police investigated and last month recommended the prosecutor file felony charges against West for making the phone threat.

As part of that investigation, police looked not just at the McCabe threat but at a 1995 incident in which West blew up at former Sen. John Moyer, R-Spokane, and a Moyer aide in a door-slamming temper tantrum that made news at the time. West screamed at Moyer's staff and at Moyer, then 74.

"I almost punched him out," West said at the time.

On March 17, police interviewed a former Moyer aide. The aide confirmed that police asked whether she ever witnessed West lose his temper, but she would not agree to be interviewed for this story.

West said the incident helps his case because it shows that while he may have a bad temper, he showed no intention to hurt anyone.

To help him in discussions with the prosecutors, West has hired prominent Seattle criminal attorney James Lobsenz.

Prosecutors and defense attorneys say juries are reluctant to convict on the seldom-used state law that police say West violated.

Thurston County prosecutors said they can't find any cases here in which felony charges were filed for a telephone threat.

In King County, there were 57 such felony charges filed last year, with just two going to trial. Both defendants were acquitted. In 19 cases, the defendant pleaded guilty before trial.

Of the King County cases, nearly all were domestic disputes and often were filed along with domestic-violence charges.

"The harassment charges are very hard to prove to a jury because it is words - words alone," said Lynn Moberly, managing attorney for King County's Regional Justice Center.

"Juries say, `Oh, he didn't mean it. People get angry, and people say that all the time. Why would she think he was really going to kill her? He didn't have any weapons on him.' "

The telephone-harassment statute says it is a misdemeanor to make a call "threatening to inflict injury on the person or property of the person called or any member of his or her family or household."

It becomes a felony when the call includes a death threat.

Here's the message West left March 6 on the voice mail at McCabe's Olympia office:

"McCabe, you son of a bitch, you better get me, because if you don't, you're dead."

The caller didn't say who it was, but after a careful listen, McCabe figured out it was West. West acknowledged making the call.

The constitutionality of the telephone-harassment law was challenged in 1995 as overly vague, but was upheld by the state Court of Appeals.

"It is always problematic when you are punishing speech because speech is typically protected in the name of freedom of expression, even freedom of angry expression," said public defender Miriam Schwartz, who represented two defendants in the unsuccessful challenge.

Schwartz said the law doesn't require that people who got the threat actually be afraid or think their lives are really in danger.

"The criminality rests all on the words themselves," she said.

The words had an effect on McCabe and his family.

In a letter to the News Tribune of Tacoma, McCabe's wife, Susan, wrote, "After the anonymous call on Friday, I spent my weekend chasing our 3-year-old away from the picture window, fearing he would be vulnerable there in case the caller attacked. I spent too many hours of the night with my eyes wide open wondering if someone was going to break in and attempt to carry out the `you're dead' threat to my husband."

A BIAW employee also wrote the paper saying West shouldn't make excuses for his behavior. Linda Praast compared West's defense to what was offered by Adam Pletcher, a 22-year-old Chicago man convicted two weeks ago of making death threats against Bill Gates.

Pletcher sent letters to Gates saying he would kill the Microsoft chairman, his wife and daughter if he was not paid $5 million. But at trial, Pletcher claimed he was only trying to get material to write a novel based on a Sylvester Stallone movie.

"The law is the law, and words have meaning. Jim West broke the law by using threatening, abusive words," Praast wrote.

But they're just words, West argues. Since the news first broke of the police investigation, he has said McCabe should have known better than to take the phone message as a death threat.

At a Spokane Republican dinner last month, a constituent handed West a photocopied page from "Debt of Honor," a Tom Clancy novel. It was a scene of a lobbyist pressuring a U.S. senator for a vote on a weapons system.

Said the senator, "Roy, I know we've worked together for ten years, but if I vote against TRA, I'm dead, okay? Dead. In the ground, with a wood stake through my heart. . . . "

Such talk has been around at least since 1920 when Churchill compared war and politics, saying, "In war you can only be killed once, but in politics many times."

When Bill Clinton was running for re-election as governor of Arkansas, he was asked by a committee of the state teachers union how he would respond if he didn't get the union endorsement.

According to the Clinton biography, "First in His Class," a union official said Clinton threatened to "tear our heads off and beat our brains out if we endorsed another candidate." When union officials said Clinton had threatened them, Clinton responded that he was only talking politically and that he left no implication that he would hold it against them.

According to the same book, Clinton once told a Democratic National Committee election workshop his policy for dealing with negative campaigning: "When someone is beating you over the head with a hammer, don't sit there and take it. Take out a meat cleaver and cut off their hand."

These stories give comfort to West because he says it shows the rough-and-tumble language of politics.

But with felony charges hanging over his head, West could be excused for feeling a bit like Jack Stanton, the Clinton clone of "Primary Colors," who says in the depth of scandal:

"They all think I'm dead. They're gonna look at me and not look me straight in the eye. It's going to be sickening."

David Postman: 360-943-9882. E-mail:

To hear state Sen. James West's phone message to lobbyist Tom McCabe, call The Seattle Times InfoLine, 206-464-2000, from a touch-tone phone and enter category CALL (2255). This is a free call in the local Seattle calling area.