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Death threats protected by First Amendment, attorney says

News File Photo The Alpena County Courthouse is seen in this April 2020 News archive photo.

ALPENA — A 26th Circuit Court judge will weigh whether death threats should keep a man in jail if they’re considered free speech.

A judge set a $150,000 bond when David Frey said was arrested on a terrorism charge for allegedly threatening to kill someone, among other charges. But the terrorism charge, the most serious of the charges Frey faced, was dismissed by District Court Judge Thomas LaCross, so the bond should be lowered, Frey argued in Circuit Court.

If the alleged threats aren’t part of the current charges, they are protected speech under the First Amendment, defense attorney Alan Curtis argued.

“It’s not a crime to say, ‘In the future, I might kill you,'” Curtis said.

The bond is too high for the remaining charges, Frey said, and should be lowered to an amount he can pay so he can leave jail while his case proceeds in court.

Frey is accused of breaking car windows and kicking in a door at the home of a man Frey said he thought might be hurting Frey’s son.

The terrorism charges — connected to verbal death threats made against the man and his family — could have led to a 20-year prison sentence.

With that alleged offense no longer in play, Frey should be able to pay less to be released from jail, Curtis, a court-appointed attorney, said.

Alpena County Prosecutor Cynthia Muszynski argued the bond amount is reasonable, despite the lesser seriousness of the remaining charges, because Frey continued making threats via the phone in the county jail after he was arrested.

Curtis also made the First Amendment argument before LaCross in District Court, when the terrorism charge was dropped, but LaCross ruled the bond amount should not change.

Circuit Judge Ed Black, who has not seen a transcript of the court hearing in which LaCross decided to drop the terrorism charge, told the parties that, while retaining the $150,000 bond amount “does not sound like something I would have done,” he doesn’t have all the facts LaCross used in his decision.

Frey will appear in court again in July, after Black has been supplied with the same information originally available to LaCross, to argue for a lower bond.

At that time, the court will also address a motion that Black recuse himself from hearing Frey’s case because Black handled other cases related to Frey while Black was Alpena County prosecutor.

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