Hon. Mustafa T. Kasubhai
Wayne Morse United States Courthouse
405 East Eighth Avenue
Eugene, Oregon 97401
RE: United States v. Thomas Murphy – 6:19-cr-00530-AA
Review of Detention – December 18, 2019
 
Dear Judge Kasubhai:
On December 18, 2019, Mr. Thomas Murphy comes before the Court
for a review of the detention order entered on December 4, 2019 by Judge
Coffin.
1 This letter is intended to provide the court important information and
documents that support Mr. Murphy’s release to his mother’s home on
conditions.2
A. The procedural background of the case strongly supports Mr.
Murphy’s release.
In this case, the procedural background is important to the court’s
evaluation of release under the Bail Reform Act. On February 16, 2018,
1 Because counsel learned on December 4 that Mr. Murphy had never
participated in a pretrial services interview and counsel had no information
about Mr. Murphy's ties to the community, no information was provided to
Judge Coffin in support of Mr. Murphy's release.
Thomas Murphy was arrested and charged via complaint with violating 18
USC §§871(a) and 875(c) for online communications that allegedly
represented true threats against the president. He made a first appearance
before Judge Coffin that same day, the federal public defender’s office was
appointed, and a preliminary examination took place. Because he had not
participated in a pretrial services interview, and his attorney did not present
any information in support of release, Mr. Murphy was detained at that time.
It was at this point that the problems with Mr. Murphy’s representation
began. Without conducting any independent investigation or obtaining a
psychological evaluation, less than a week after being appointed, Mr.
Murphy’s attorney filed a notice under FRCP 12 of intent to rely on an insanity
defense and calling his client incompetent to stand trial. See ECF #8.
On the
verge of retirement, Mr. Murphy’s counsel certainly understood that such a
notice would generate a response from the government demanding that Mr.
Murphy undergo a psychological evaluation. See ECF #9.
Unbelievably, Mr. Murphy’s first lawyer filed this notice without any
prior discussion with his client. In fact, Mr. Murphy did not know this notice
had been filed until current counsel met with Mr. Murphy for the first time on
December 4, 2019. Only 656 days had passed since the notice was filed.
Over the several hours we have spent talking since then, Mr. Murphy
has never manifested any behavior or made any statements suggesting that he
is schizophrenic or delusional. He has been respectful and polite despite the
manifest injustice he has experienced and the incompetence of his lawyers.
There is no question that he is capable of aiding and assisting in his own
defense.
B. Because of his lawyer’s neglect and the government’s
negligence, Mr. Murphy has already served at least six months
more than the high end of the guideline range.
Under §2A6.1(a)(1) the base offense level is
12. None of the enhancements apply. Assuming he went to trial and very
conservatively estimating him as Category II Criminal History, the guideline
range would be 12-18 months. With good time reductions, his eligibility for
RDAP, and statutorily required early release Mr. Murphy might have served
as little as the six months necessary to complete drug treatment.
Instead,
thanks to his lawyers and the government, Mr. Murphy has only been in
custody 22 months.
The weight of the evidence against Mr. Murphy is weak.
The charges Mr. Murphy face require criminal intent, although
precisely what that intent is remains a mystery. See Elonis v. United States,
135 S. Ct. 2001, 2012–13, 192 L. Ed. 2d 1 (2015)(declining to specifically
define the mens rea required); Watts v. United States, 394 U.S. 705, 708
(1969)(“[W]hatever the ‘willfullness’ requirement implies, the statute initially
requires the Government to prove a true ‘threat.’”).
Considering Elonis, the
Ninth Circuit withdrew its model jury instruction for this offense, and it has
not been updated. This legal uncertainty supports Mr. Murphy’s release. No
matter what jury instruction the District Court provides about the criminal
 
United States v. Thomas Murphy
Review of Detention – December 18, 2019
Page 6 of 11 - 12/16/2019
intent required, the precise issue not addressed by Elonis is presented here.
What intent is required? Unbelievably, no one knows.
There is also significant legal uncertainty about whether the facts
alleged constitute an offense, both because of Elonis, and because of the First
Amendment. Under the Supreme Court’s First Amendment jurisprudence, it
is not enough that Mr. Murphy made a threatening statement on Twitter, he
must have intended that statement to be a true threat. Virginia v. Black, 538
U.S. 343, 359 (2003).
“True threats” encompass those statements where the
speaker means to communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual. Id. There is no evidence of
that here. Mr. Murphy had no reason to think that inflammatory and sarcastic
statements he made while engaged in puerile political debate on Twitter would
somehow end up coming to the attention of the president and be perceived by
him as a threat.
The government must prove that Mr. Murphy intended for his
communication to be understood as a threat even though it was not
communicated directly to the president. The direct evidence in this regard is
nonexistent.
Accepting as true the allegation that Mr. Murphy made the statements,
they were posted in an online forum in response to another individual and not
specifically directed to or addressed to the president. Mr. Murphy did not send
these threats to the White House nor did he address them to the president on
Twitter or in any other manner.
If he had intended a true threat against the
president, Mr. Murphy would surely have made it directly on the president’s
Twitter feed. Absent any proof that they were sent to the president, it is
difficult to see how the government prove that he intended a true threat against
the president rather than simply to agitate some other person online.
There is
no evidence that Mr. Murphy knew that any online threat against the president
made anywhere in any form might be captured by government surveillance
and treated by the Secret Service as though it were made directly to the
president.
It is the government’s burden to prove this was something more than
hyperbole
and locker room talk and yet there does appear to be any evidence
that Mr. Murphy undertook any action in the real world supporting an
inference of a true threat. When his home was searched no guns or other
weapons were found.
Besides the two statements alleged indictment, the
government cannot point to any pattern of threatening communications
directed at the president or anyone else.
Searches of his electronic
devices did not reveal any other information linking him to other threats
against president or anyone else. The government found no evidence that he
was about to book a hotel room in Washington DC.
There is no evidence he
was doing research about how to escape the country. There is no Google
search for how to kill the president. In short, there is no evidence that he took
any step in the real world that would sustain the government’s requirement to
prove beyond a reasonable doubt that his statements online were more than
hyperbole.
If Mr. Murphy had been in custody for a week, then the little evidence
the government has suggesting a criminal offense took place might suffice to
keep him detained. After 22 months in prison without a trial, it falls woefully
short.
The Bail Reform Act of 1984 requires the release of a person facing
trial under the least restrictive condition or combination of conditions that will
reasonably assure the appearance of the person as required and the safety of
the community. See 18 U.S.C. §§ 3142; United States v. Gebro, 948 F.2d
1118, 1121 (9th Cir. 1991).
Under the Bail Reform Act, release is required
unless no combination of conditions can reasonably assure the appearance of
the person and the safety of the community. Only rarely should defendants be
denied release, and any doubts regarding the propriety of release should be
resolved in favor of release. Id.
On a motion for pretrial detention, the government bears the burden to
show by clear and convincing evidence that no condition or combination of
conditions of release will reasonably assure the safety of other persons or the
community. 18 U.S.C. § 3142(f)(2).
Respectfully,
 
s/Matthew Schindler
Matthew Schindler
Attorney for Thomas Murphy
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Ezekiel. (use pic "note1")
 
You were in Eden, the garden of God.
…  I ordained and anointed you
as the mighty angelic guardian.
You had access to the holy mountain of God
and walked among the stones of fire.
“You were blameless in all you did
from the day you were created
until the day evil was found in you.
… and you sinned.
So I banished you in disgrace
from the mountain of God.
I expelled you, O mighty guardian,
from your place among the stones of fire.
Your heart was filled with pride
because of all your beauty.
Your wisdom was corrupted
by your love of splendor.
So I threw you to the ground.  (Ezekiel 28:13-17
Then the LORD spoke to Job out of the storm. He said…
“Where were you when I laid the earth’s foundation?
Tell me, if you understand….
while the morning stars sang together
and all the angels shouted for joy? (Job 38:1-7)
 
1 Corinthians 6
ἢ] WH CEI Nv NM
 
omit] ς NR ND Riv Dio TILC
 
 
κρινοῦμεν,... βιωτικά;] ς WH NA
 
κρινοῦμεν;... βιωτικά.] NR CEI ND Riv Nv
 
κρινοῦμεν;... βιωτικά;] Dio TILC NM
μήτιγε] Byz ς WH UBS
 
μήτι γε] NA
 
 
καθίζετε;] WH NA CEI TILC NM
 
καθίζετε.] NR ND Riv Dio Nv
 
καθίζετε;or καθίζετε.] ς
ἔνι] Byz WH
 
ἐστιν] ς
 
 
οὐδεὶς σοφὸς] WH
 
σοφὸς οὐδὲ εἶς] Byz ς
αὐτοῦ, 6 ... ἀπίστων;] WH NM
 
αὐτοῦ. 6 ... ἀπίστων;] TILC
 
αὐτοῦ; 6 ... ἀπίστων;] ς NA
 
αὐτοῦ; 6 ... ἀπίστων.] NR CEI ND Riv Dio Nv
αὐτοῦ, 6 ... ἀπίστων;] WH NM
 
αὐτοῦ. 6 ... ἀπίστων;] TILC
 
αὐτοῦ; 6 ... ἀπίστων;] ς NA
 
αὐτοῦ; 6 ... ἀπίστων.] NR CEI ND Riv Dio Nv
οὖν] p11vid ‭א2 A B C D1 Ψ Byz syrp syrh* ς WH [NA] NM
 
omit] p46 ‭א* D* 6 33 630 1739 1881 2495 pc NR CEI ND Riv Dio TILC Nv NM
 
 
ὑμῖν] Byz WH
 
ἐν ὑμῖν] ς
διὰ τί οὐχὶ μᾶλλον ἀδικεῖσθε] Byz WH
 
διατί οὐχὶ μᾶλλον ἀδικεῖσθε] ς
 
 
διὰ τί οὐχὶ μᾶλλον ἀποστερεῖσθε] Byz WH
 
διατί οὐχὶ μᾶλλον ἀποστερεῖσθε] ς
τοῦτο] WH
 
ταῦτα] Byz ς
 
 
θεοῦ βασιλείαν] WH
 
βασιλείαν θεοῦ] Byz ς
κλέπται οὔτε πλεονέκται, οὐ] WH
 
πλεονέκται οὔτε κλέπται οὔτε] Byz
 
κλέπται οὔτε πλεονέκται οὔτε] ς
κληρονομήσουσιν] WH NR CEI ND Riv Nv NM
 
οὐ κληρονομήσουσιν] Byz ς Dio
 
 
ἀλλὰ ἐδικαιώθητε] WH
 
ἀλλ' ἐδικαιώθητε] Byz ς
Ἰησοῦ] A D2 L Ψ 0150 6 88 424 614 1241 1852 1984 2495 Byz Lect l603(pt) geo2 John-Damascus ς ND Dio
Ἰησοῦ Χριστοῦ] p11vid p46 ‭א D* (l63(pt) Χριστοῦ Ἰησοῦ) itd ite Irenaeuslat(3/4) Tertullian Tertullian Cyprian Ambrosiaster Basil1/2
Ambrose1/2 Didymuslat Didymusdub(1/4) Chrysostom1/2 Niceta1/2 Pelagius1/2 Augustine3/7 Cyril Varimadum NA NR CEI Riv TILC Nv
ἡμῶν Ἰησοῦ Χριστοῦ] B Cvid P 33 81 104 181 256 263 326 330 365 436 451 459 629 630 1175 1319 1573 1739 1877 1881 1912 1962 2127 2200 2464 l596 l884 itar itb itdem itf itm ito itr itx itz vg syrp syrh* copbo arm eth geo1 slav Origenlat Adamantius Athanasius Marcellus Basil1/2
Apollinaris Ambrose1/2 Didymusdub(3/4) Ps-Vigilius Epiphanius Chrysostom1/2 Niceta1/2 Pelagius1/2 Jerome Augustine4/7 Euthalius Theodoret Ps-Athanasius (WH [ἡμῶν]) NM
 
ἡμῶν Ἰησοῦ] copsa
 
ἡμῶν] Irenaeuslat(1/4)
 
omit] 2492
ἐξεγερεῖ] p46 ‭א C D2 K L Ψ 33 81 104 256 263 365 424* 436 459 1175 1319 1573 1852 1881 1962 2127 2200 2464 Byz Lect itar itf ito vg copsa copbo arm eth geo (slav) Marcionaccording to Tertullian Irenaeuslat Tertullian Methodius Hegemonius Ambrosiaster Chrysostom Pelagius Augustine Cyril Varimadum ς WH
ἐξήγειρεν] p46 B 6 424c 1739 itb itr vgmss Origenaccording to 1739 Jerome
 
ἐξεγείρει] p11 p46* A D* P 0150 69 88 1241 1912 l60 l170 l597 l599 l1021 l1356 itd
 
 
ἢ] ‭א A B C F G P 33 81 104 365 630 1175 1241 1739 1881 2464 2495 Byzpt it vg syrp Clement Cyprian Lucifer Epiphanius ς WH [NA] CEI
 
omit] p46 D K L Y 6 Byzpt Byz2005 itr syrh Tertullian
Speculum NR ND Riv Dio TILC Nv NM
θεοῦ;... ἑαυτῶν,] WH
 
θεοῦ;... ἑαυτῶν.] NR (TILC)
 
θεοῦ;... ἑαυτῶν;] Dio
 
θεοῦ,... ἑαυτῶν;] ς NA CEI ND Riv Nv NM
 
 
δοξάσατε δὴ] p46 ‭א1 A B C D F G K L P Byz ς WH
 
δοξάσατε οὖν] syrp copsa Ps-Athanasius
ἄρα γε δοξάσατε] 1611
 
δοξάσατε δὴ ἄρατε] Chrysostom
 
glorificate et portate] itg vg Marcion (Tertullian) Cyprian Ambrosiaster Lucifer Speculum
 
δοξάσατε] ‭א* itd syrh* copbo
 
 
ὑμῶν] p46 ‭א A B C* D* F G 6* 33 81 181 424 629 1175 1739* 1877 1962 l597 l603 itar itb itd itdem ite itf itg
itm(vid) (ito) itr itt itx itz vg copsa copbo copfay eth geo1 Irenaeuslat Tertullian Methodius Methodius Origen Cyprian Adamantius Ambrosiaster Lucifer Basil Ambrose Didymus (Didymusdub) Macarius/Symeon Ps-Vigilius Epiphanius Niceta Pelagius Jerome Cyril Euthalius Speculum Varimadum Ps-Athanasius John-Damascus WH NR CEI Riv TILC Nv NM
ὑμῶν καὶ ἐν τῷ πνεύματι ὑμῶν] 2464
 
ὑμῶν καὶ ἐν τῷ πνεύματι ὑμῶν, ἅτινά ἐστιν τοῦ θεοῦ] C D2 K L P Ψ 0150 1 6c 31 88 104 256 263 326 330 365 424* (436 omit second ὑμῶν) 451 459 614 630 915 (1241 1881 ἡμῶν καὶ) 1319 1573 1739c 1852 1912 1984 1985 2127 2200 2492 2495 Byz Lect vgms syrp syrh arm (geo2) slav Chrysostom1/2 (Chrysostom1/2) (Severian) Theodoret ς ND Dio
ἢ] WH CEI Nv NM
 
omit] NR ND Riv Dio TILC
 
 
lucky, ... viable?] WH NA
 
critically? ... viable.] NR CEI ND Riv Nv
 
critical; ... viable?] Dio TILC NM
did] Byz WH UBS
 
see] NA
 
 
you sit?] WH NA CEI TILC NM
 
you sit down.] NR ND Riv Dio Nv
 
or are you sitting?]
 
 
Ini] Byz WH
 
Austin
very wise] WH
 
wise byz] Byz
 
 
here, 6 ... true?] WH NM
 
that. 6 ... True?] TILC
 
that? 6 ... True?] NA
 
that? 6 ... Hippest.] NR CEI ND Riv Dio Nv
here, 6 ... true?] WH NM
 
that. 6 ... True?] TILC
 
that? 6 ... True?] NA
 
that? 6 ... Hippest.] NR CEI ND Riv Dio Nv
 
 
οὖν] p11vid א 2 A B C D1 Ψ Byz syrp syrh * σ WH [NA] NM
 
omit] p46 א * D * 6 33 630 1739 1881 2495 pc NR CEI ND Riv Dio TILC Nv NM
]µῖν] Byz WH
 
If
 
 
what's your future? Byz WH
 
because your future is yours
 
 
what are you missing for the future] Byz WH
because you have no future
 
 
that] WH
 
byz]
 
 
god reign] WH
reigned by God] Byz
 
 
stolen or advantageous, WH]
 
advantageous or stolen or] Byz
 
stolen or otherwise stolen
inheritance] WH NR CEI ND Riv Nv NM
 
the inheritance] Byz Dio
 
 
But you are justified] WH
 
Byzz
Υ͂ησοῦ] A D2 L Ψ 0150 6 88 424 614 1241 1852 1984 2495 Byz Lect l603 (pt) geo2 John-Damascus ND Dio
 
Ἰησοῦristó] p11vid p46 א D * (l63 (pt) Christó ῦησοῦ) itd ite Irenaeuslat (3/4) Tertullian Tertullian Cyprian Ambrosiaster Basil1 / 2 Ambrose1 / 2 Didymuslat Didymusdub (1/4) Chrysostom1 / 2 Nicry / 2 Augustine3 / 7 Cyril Varimadum NA NR CEI Riv TILC Nv
Cµῶν Ἰησοῦ Christó] B Cvid P 33 81 104 181 256 263 326 330 365 436 451 459 629 630 1175 1319 1573 1739 1877 1881 1912 1962 2127 2200 2464 l596 l884 itar itb itdem itf itm ito itr itx itz vg syrp syrp geo1 slav Origenlat Adamantius Athanasius Marcellus Basil1 / 2 Apollinaris
Ambrose1 / 2 Didymusdub (3/4) Ps-Vigilius Epiphanius Chrysostom1 / 2 Niceta1 / 2 Pelagius1 / 2 Jerome Augustine4 / 7 Euthalius Theodoret Ps-Athanasius (WH)
 
Imsh Issa] copsa
 
]µῶν] Irenaeuslat (1/4)
omit] 2492
 
 
ῖxigreῖ] p46 א C D2 KL Ψ 33 81 104 256 263 365 424 * 436 459 1175 1319 1573 1852 1881 1962 2127 2200 2464 Byz Lect itar itf ito vg copsa copbo arm eth geo (slav) Marcionaccording to Tertullian Irenaeuslat Tertullian Methodius Chrysostom Pelagius Augustine Cyril Varimadumς WH
 
Explain] p46 B 6 424c 1739 itb itr vgmss Origenaccording to 1739 Jerome
Cheers] p11 p46 * A D * P 0150 69 88 1241 1912 l60 l170 l597 l599 l1021 l1356 itd
 
 
ἢ] א A B C F G P 33 81 104 365 630 1175 1241 1739 1881 2464 2495 Byzpt it vg syrp Clement Cyprian Lucifer Epiphanius WH [NA] CEI
 
omit] p46 D K L Y 6 Byzpt Byz2005 itr syrh Tertullian Speculum NR ND Riv Dio TILC Nv NM
God? ... Yeah,] WH
God? ... Actually.] NR (TILC)
 
god? ... this one?] Dio
 
God, ... Heaven?] NA CEI ND Riv Nv NM
glorified δὴ] p46 א 1 A B C D F G K L P Byzë WH
 
you glorified the syrp copsa Ps-Athanasius
 
Time you glorified] 1611
 
you glorified and gave] Chrysostom
glorificate et portate] itg vg Marcion (Tertullian) Cyprian Ambrosiaster Lucifer Speculum
 
glorified] it * itd syrh * copbo
]µῶν] p46 א ABC * D * FG 6 * 33 81 181 424 629 1175 1739 * 1877 1962 l597 l603 itar itb itd itdem ite itf itg itm (vid) (ito) itr itt itx itz vg copsa copbo copfay eth geo1 Irenaeuslat Tertullian Methodius Methodius Origen Cyprian Adamantius Ambrosiaster Lucifer Basil Ambrose
Didymus (Didymusdub) Macarius / Symeon Ps-Vigilius Epiphanius Niceta Pelagius Jerome Cyril Euthalius Speculum Varimadum Ps-Athanasius John-Damascus WH NR CEI Riv TILC Nv NM
I am and I am spirit] 2464
Dῶὶὑὶὶὶἐἐ,,,,,,,, D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D C D D D D D D D D D D D D D C C C D D D D C D D D D D D C
D C C C D D C D D C D C D C D D D D D D C D D C D D D D D D C C D D D D C D D C D D D C 1 D D D C C C D D C C C 1912 1984 1985 2127 2200
2492 2495 Byz Lect vgms syrp syrh arm (geo2) slav Chrysostom1 / 2 (Chrysostom1 / 2) (Severian) Theodoret ND ND
CTS: This Court is Unclean.
https://www.youtube.com/watch?v=fPcA4bQjWFw
