Note: Both individuals at the center of this case were 16-year-old students at Flagler Palm Coast High School a year ago, when the issue arose on Dec. 10, 2018. Neither attends the school anymore. We are not publishing their names. For the sake of clarity and to avoid confusion and clunkiness, they’ll be referred to by generic first names–Jane and John.
A circuit judge this afternoon tried a white, 17-year-old former Flagler Palm Coast High School student accused of making death threats laced in bigoted language against her black English teacher a year ago. But there was no decision: he took the case under advisement and will issue a ruling in coming days or weeks.
Unusually, the judge asked both sides to draft proposed orders, what amounts to written closing arguments that will anticipate an almost certain appeal, should the decision go against the girl. The only words of substance the unvoluble judge allowed was that the case may not be as “nebulous” as supposed.
The one-day, non-jury trial before Circuit Judge Chris France was a rare look into the trial phase of the sort of case that has become almost routine since the Parkland high school massacre nearly two years ago, with nearly a dozen Flagler school district students between last year and this year similarly charged. The bigotry that embittered the language the two students used in this particular case made it more shocking and immediately drew significantly more attention, including that of the local NAACP, whose members were initially critical of the Flagler County Sheriff’s handling of the matter.
At first, neither student involved in the case were charged. Then they were charged with misdemeanors, and only weeks later charged criminally, with a second-degree felony.
Both Jane and John were in 11th grade when the case began. Jane never returned to FPC, switching her education to an online program. She is graduating this December, according to her attorney. John left the United States to return to his native country.
They were in separate classrooms at around 10:30 a.m. the morning of Dec. 10, 2018. Jane was in English teacher Kimberly Lee’s class. She’d been upset that Lee would not let her make up a test right then, because Lee had the class focused on finishing a larger project and had suggested Jane could take the test after school. Rather than work on the assigned project, Jane messaged John in another class, and the two began to talk about how they’d maul, torture and murder Lee at her house, in the language of degradation and slur-ridden bigotry that recalls the white supremacist vocabulary of Jim Crow.
“I won’t get in trouble, you know why?” One of the students wrote (in words reproduced here exactly as transcribed by school authorities.) “Cuz niggers don’t have rights,” the other one writes. They go on to ask each other when they’re going to “kill her.” They say they know where Lee lives. They set a time. “Okay okay good. We have a time set.” One of them writes: “WERE GONNA GET AWAY WITH MURDUR TONIGHT.” “Thye gonna give you a medal for killing a nigge.” “Well its not really murder. Were doing the world an amazing thing.”
It wasn’t the first time Jane was referring to her teacher that way: “my teacher is a fucking bitch, I’m going to kill her in her sleep,” she’d written four days earlier, Assistant State Attorney Lewis, who prosecuted the case, revealed. “So it wasn’t the first thing that popped into her head” that December 10, he told the judge, establishing a recurring pattern. His intention was to show that Jane had the motive to execute her threats, though she was found to have neither the means nor, according to what she told detectives, the will: she said she was joking. Upset, but joking.
Lewis, who typically uses defendants’ own language to indict them in court, began his argument before France by repeating some of the phrases Jane had used, and summed up the case as coming down not to facts on paper, but to law–whether an individual may be found guilty of making threats under current law, even though the threats were not spoken or written directly to the allegedly intended target. Lewis said the individual may.
Josh Davis, the attorney representing Jane, argued the law doesn’t apply that way. The written threats, he said, went through three or four hands at the school–a teacher, a dean, a school resource deputy–before Lee was informed, and realized, that she had been the target. He did not argue that the words written were depraved and “immoral.”
As written, Davis argued, the law of written threats to kill applies to “a mass shooting, some sort of bomb threat or an act of terrorism.” But when two children in class exchanging texts between them, it doesn’t fit the intent of the law. “If we get to the point where that’s considered an act of terrorism or a mass shooting, we’re going to have a lot of kids in the system,” Davis said. “This was never sent or received by Ms. Lee or a member of her family.”
That was the core of Davis’s case. “Ultimately, Ms. Lee ended up hearing about these messages and were related to her by the principal,” he said, “so we have several layers that it was not sent to Ms. Lee or it was not sent to her family members.”
“This depravity” was the last thing the girl wanted seen, Davis argued in his closing. “Judge, it’s not a mass shooting, it’s not an act of terrorism, it was a terribly thought through conversation between two idiot children, and if every single conversation that was had by high school kids was dissected and brought in front of a court, judge, I don’t believe we’d have any children in school left, we’d have them in lock-up.”
Lewis didn’t buy it: “That’s not what kids write, judge, I have to respectfully disagree, that’s what people do when they write threats, and that’s not protected speech,” he said, though conceding that it was a bit harder to prove in this case that the words were intended directly to Lee.
“The teacher could have seen it, she knew she was monitoring it,” Lewis argued, noting that the students knew their work on their computers were all visible to their teachers, who warned them that they were being monitored: Lewis argued that Jane could well have intended for her messages to be seen by her teacher. It was a stretch, and Lewis knew it. “I know it’s an unusual scenario,” Lewis conceded, “we believe it’s sent to the teacher, judge.”
Lee herself never saw the messages as they were being written at the time. It was a nearby teacher in another classroom who told her of them, and only in the abstract: the other teacher was not aware that Lee was the target, either. It was only later when the dean, Erin Davis–who testified today–began to delve into the messages that she realized “it didn’t sound like a joke to me anymore.”
The incident upended Lee’s life and her 20-year career as a teacher. “This experience affected me emotionally, it affected me physically, impacted my family financially, it just tore me down,” Lee said, testifying for the prosecution. “I didn’t understand how this could happen and why it happened, so it affected my health, I couldn’t function, so I had to take that unpaid leave.” And buy a gun to defend herself and her children, she said.
At one point Lewis asked Lee to identify Jane. It was the first time the two had been in the same room in almost exactly a year. Lee raised her arm and pointed at Jane. “She’s sitting over there, she’s wearing a white sweater and a black shirt,” the teacher said. Jane looked down at that point.
Jane did not testify. But Lewis played her audio interview with sheriff’s detective George Hristakopoulos.
“I would never hurt anybody and even if I texted it, I would never even do it, I was never even thinking about that,” Jane says on the tape. “I was just upset, I need to take this test.” The messages “got escalated, but it didn’t get escalated in my head, it got escalated as a joke.” The teacher, she conceded, wasn’t picking on her. “She doesn’t want to give students a free pass.”
The detective pressed her on the bigotry in the messages. The girl portrayed herself as a flower child. “I really do not care, I’m the type of person that you can be gay, straight, bi, trans, I don’t care, as long as you’re happy I’m happy,” she said. She’s been “open to anything since I was young,” she insisted.
“I just want you to know that people who have committed murders that I interview tell me that they’re not the person who would do that sort of thing,” Hristakopoulos tells her. “They tell me yeah, I did it, but I’m not a killer, so one of the reasons of me explaining this to you is this is one of the reasons why this is being taken so seriously.”
The sheriff’s office had at one point considered forwarding a hate-crime charge, but the State Attorney’s Office filed only the one charge of making written threats to kill, a second-degree felony. Typically, the State Attorney will tender a plea offer that ranges from a diversion program to probation to some form of juvenile incarceration. The prosecutor would not discuss whether there was such a plea offer in this case, saying he could not discuss juvenile cases. Davis said the only offer was to plea as charged.