Judge to decide hate-caller's fate

Publication Date: Wednesday Feb 9, 2000

COURTS: Judge to decide hate-caller's fate

Attorney said messages weren't intended to threaten JCC

by Jennifer Kavanaugh

Lawyers have left a Palo Alto judge to decide one central question concerning several anti-Semitic messages left at a local Jewish center last summer: When do hateful words become a violent crime instead of free speech? Lawyers made their closing arguments Friday in the trial of Kevin Riley O'Keeffe, the San Jose man accused of making three threatening phone calls to the Albert L. Schultz Jewish Community Center in July and August 1999. O'Keeffe, 29, has admitted to making the calls, but his attorney argued the calls weren't intended to threaten.

Deputy District Attorney Aaron Persky argued the calls terrified the center, with references to the Holocaust and white supremacy. Since the summer, the center has hired an armed security guard, installed video cameras and built more fences and gates around the facility.

"When words become weapons of fear and intimidation, when they become surrogates for violence, they're no longer entitled to First Amendment protection," Persky said. "Those three phone calls together became weapons and crossed the line and became threats."

But O'Keeffe's attorney, J.J. Kapp, argued that his client's calls, though "despicable" in content, merely expressed his political opinion about Jews and never specifically threatened anyone.

"They've got every right to be scared," Kapp said of the center's members. "And they were scared, but that element (threat) is lacking in this case."

In particular, the lawyers have debated the meaning of O'Keeffe's third call on Aug. 11, made the day after a man shot five people at a Jewish center in Los Angeles County. In the third call, O'Keeffe praised the event and lamented the fact that the shooting victims didn't die. The call, left as a message on the center's voice mail, ended with this statement:

"(A)nd hopefully, soon we'll be upgrading our weaponry from rifles to nuclear warheads so we can target places like Tel Aviv and Haifa, and perhaps even New York. But until that wonderful day arrives, we'll have to settle with these more minor forays. Heil Hitler."

Kapp argued the statement reflects fantasy talk, and that the message gave the center no reason to think that the caller was connected to the Los Angeles shooting or planned to act out against the Palo Alto center. He asked the judge to convict O'Keeffe of the lesser charge of making harassing or annoying phone calls.

Persky agreed the center had no way of knowing about O'Keeffe's intentions, but said that was the point--given the circumstances, the center had no choice but assume the message was a threat, and that the use of the word "we" suggested the caller's connection to a hate group.

O'Keeffe, who remains in jail on $1 million bail, faces up to seven years in prison if convicted of making terrorist phone threats. Judge Charles Hayden is expected to announce his verdict on March 11.

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