There was a silent moment–a long, silent moment–when Circuit Judge Terence Perkins asked Joseph Washington if anyone was forcing him to plead out to the charge that he’d made written threats to kill his dean at Matanzas High School. It’s usually a straight-forward question. Washington didn’t answer. His somewhat impatient attorney, Spencer O’Neal, had to intervene and explain to him.
“Outside of the circumstances of this case, is there anybody that’s forcing you to enter this plea,” O’Neal told him, like somebody threatening him of forcing him. Only then, Washington–who never took down the song from Soundcloud and spoke of his surprise in a video of having even faced arrest over it–said no. (April 9 update: the song was taken down.)
Washington, 18, was arrested in January after Matanzas High School faculty got word of the song, which he calls “Racial Profiling,” and in which Washington sings lyrics that explicitly tell Tom Wooleyhan, the Matanzas dean who is named in the song, that “You should be afraid of me cause I’ll come and take your life / Smoke ya with this Uzi like…” The lyrics also extend the threats to Wooleyhan’s family. Washington wrote and published the song after Wooleyhan suspended him for a few days over a dress code violation that Washington had compounded by insulting Wooleyhan to his face.
After his arrest on a second-degree felony charge of written threats to kill, his attorney made clear that the case would be fought on First Amendment grounds of free expression, and let the court know, as he did again today, that “nobody wants to litigate the free speech issue.” It didn’t get anywhere near that far. The prosecution filed its charge only in mid-March. Soon afterward, prosecution and defense had a pre-trial diversion agreement and a plea from Washington.
This afternoon, Washington pleaded guilty to a third-degree felony charge of making written threats to kill. The plea deal is generous. But getting to its term in 18 months will be unusually difficult and costly.
Washington will not serve any jail or prison time. According to the pre-trial intervention agreement, he’ll be on probation for the next 18 months. He’ll have to continue wearing an ankle monitor and pay for it–a previously contentious issue that almost derailed the agreement today–and stay away from the Matanzas campus, Wooleyhan and his family (he does not live in the county). As with any probation terms, he must abstain from all intoxicants and submit to random urinalysis. He must also write Wooleyhan an apology letter and obtain a GED. He must also pay some fines and court costs.
If Washington abides to all the terms of the contract for the next 18 months, the charge will be dropped. If he violates the terms, he faces the possibility of prison.
Perkins, who termed himself “surprised” by the leniency of the agreement, but did not object, went through the terms of probation with Washington like a teacher with his student, asking Washington to explain to him what the terms were rather than the other way around.
“So if you do everything that you’re required to do within that 18 month period, what happens to the charge?” Perkins asked him.
“It goes away,” Washington said.
“And if you don’t?” Washington, who spoke in a tone nowhere near as audible or assertive as in his song or video, said he could face up to five years in prison.
But the original agreement did not include him wearing a GPS monitor, and it bothered O’Neal when the matter came up.
“The only thing I want is a GPS,” the judge said.
“Judge when Mr. Lewis Mr. O’Neal and I were discussing the case, the issue of the GPS never came up,” Assistant State Attorney Jaime Telfer said, referring to her colleague, Jason Lewis, the managing attorney.
“I’m okay. I’ll accept a PTI. I was a little surprised, but I’m okay with that,” Perkins said. “I’m okay with a PTI. I just I think that I just needed a GPS. I need something that will verify what Mr. Washington will be telling us, which is –whatever this is, whether he was writing a song or this was a threat or whatever this was, that he’s past that, this isn’t a threat, that we can verify independently he’s not on the school grounds or he’s not being a potential issue with regard to the victim.”
“I understand what you’re saying, Your Honor, this is not what was negotiated,” O’Neal said. “It’s not what was asked for by the victim. As we discussed at the last hearing, the GPS monitor almost has nothing to do with this case except keep him away from the school. And he’s not going back to school. Everybody there knows who he is. If he was going around the school he’d be spotted within a mile. He hasn’t gone back to this day, he has no intention of going back. It’s not within his best interest to go back anyways.”
“I want nothing to do with that school at all,” Washington jumped him, his crispest statement at the hearing.
“It’s a financial burden,” O’Neal continued. The monitor costs $3.10 a day, all of it, plus maintenance, having to be paid by its wearer. That’s $95 a month, and what will amount to $1,700 for the duration of Washington’s probation–a heavy burden for a family with few means, and an unusual added punishment after he’s been sentenced. “It’s a physical burden. It’s setting him up to have a possible violation for something that, if you wanted to wear it for nine months of a piece, that’s a long time to have an ankle monitor on yourself. It’s a long time.”
“Agreed,” the judge said. But he wasn’t budging.
“He’s got no criminal history. He’s a high school student,” O’Neal said, reminding the court that Washington had abided by all his pre-trial release terms so far. “I don’t know that this is appropriate.”
Then came the judge’s interpretation of the song and the incident. “Okay, well, I read this as a threat,” Perkins said. “And I read it as a threat not just to the school, not just to the individual, but to his family. And I want some verification that Mr. Washington is complying with the letter and the spirit of the pre-trial intervention contract. I’m not second-guessing the pre-trial intervention contract. It’s not what I would have selected. But I’m not second guessing that. I’m prepared to accept a pre-trial intervention contract. But I want verification. I don’t know how to get it other than in the way I’m suggesting, which is a GPS. I understand there is a financial price to be paid for that. There is. I don’t know that that’s something that you can’t ask to change at a later time. You can ask to change any element at a later time. But at this point in time, I want some verification.”
O’Neal asked to confer with his client. They retreated to a room just outside the courtroom and returned a few minutes later. Washington had conceded, and the formal part of the plea and sentence followed.
Neither has Soundcloud taken down the song, nor does the pre-trial intervention agreement require Washington to take it down, which could be an implicit recognition of the case’s thornier First Amendment angles. It isn’t clear if Washington will appeal on those grounds. Despite his plea, he retains the right to appeal the sentence.