Why were charges never filed against Gessler’s alleged harasser?

If someone harassed and/or threatened Secretary of State Scott Gessler in 2012, why were charges never filed?

Until now, the Denver District Attorney’s office has only answered that question by saying there was no violation of the law. But a document obtained via the Colorado Open Records Act details the specific reasons the DA’s office did not prosecute. The rationale is likely to raise the debate regarding a potential double standard by the DA’s office given the two recent instances where charges were filed against individuals for making threats against Democrat lawmakers during the recent gun control debate in Colorado. The notion of a double standard has already been raised by Westword magazine.

The document obtained is authored by Deputy District Attorney Greg Long, and is sometimes referred to as a “letter of declination.”

Explanation from Denver District Attorney’s office why no charges were filed in Gessler case

The theory laid out by Deputy DA Long appears to center on three themes:

1) The alleged offender in the Gessler case, Richard Wiscomb, called the Secretary of State’s office, and not Mr. Gessler personally. However, Wiscomb is reported to have said during that call that people “know where the Secretary lives.”

2) The difference between a threat and something else that might simply be considered offensive language could boil down to the use of the first person singular. At one point when questioned by detectives, Wiscomb says, “I threatened, I didn’t threaten personally, but I did say that somebody should put a bullet in his head.”

3) Does the alleged threat convey an immediate and imminent threat? Wiscomb’s statement that “somebody should put a bullet in [Gessler’s] head, did not “place another person in fear of imminent serious bodily injury,” in the eyes of Deputy DA Long. Furthermore, Long says that, “…and on no occasion did [Wiscomb] say anything like ‘I am going to do this or that.”

Compare Mr. Wiscomb’s statements to David Cassidy, the man recently arrested for allegedly threatening Senator Andrew Kerr. (Read Mr. Cassidy’s arrest affidavit here.) In a voicemail, Cassidy said, “Andy Kerr, you and the rest of the communist Democrats are going to regret what you’re doing. Either by ballots or by bullets we are going to get you out of office.”

Cassidy’s words were left on a voicemail belonging directly to Senator Kerr. However, like Wiscomb, at no point did Cassidy “say anything like ‘I am going to do this or that,'” (see page 3 of the document) which raises questions of imminency. Finally, Deputy DA Long comes to the conclusion that in the case of Wiscomb’s words to the Secretary of State’s office, “…it is unlikely that a preliminary hearing judge would find them more than an expression of hypotheticals.” This is the same defense Cassidy is saying about his own statements in the voicemail to Senator Kerr. In an interview with CBS 4, Cassidy said, “What I said was meant in a figure of speech. I meant it as a hyperbole. It could have very well been, ‘We’re going to remove you from office by hook or by crook.”

When asked for comment on the document, and the differences between Mr. Cassidy’s alleged threats and Mr. Wiscomb’s threats, DA spokeswoman Lynn Kimbrough said:

Because Mr. Cassidy’s criminal case is still pending, this office cannot speak directly to that portion of your question because of the limitations imposed by the Colorado Rules of Professional Conduct other than to say that the facts and circumstances in the Cassidy case are different and have a different legal significance from those disclosed in the Gessler investigation, which involved a phone call to an administrative assistant. It is understandable how a superficial reading of media coverage of the two matters lends itself to the mis-leading appearance of them being the same under Colorado law.