The Washington Court of Appeals reversed a Vancouver man’s 2022 conviction for threatening to kill a Clark County Superior Court judge, citing violations of his First Amendment protections.
In July 2022, a Superior Court jury found Mark Hensley, 49, guilty of felony harassment after two days of trial. Judge Robert Lewis sentenced him to 90 days in jail, court records show.
Hensley appealed his conviction, alleging the verdict violated the First Amendment, among other claims.
On Feb. 27, the appeals court issued an opinion finding the jury instructions in the case allowed the jury to convict Hensley without finding he intended for his threat to be believed. The opinion cited a change in the law, which increased the standard for intent. The deputy prosecutor in the case, Toby Krauel, noted the law changed 11 months after the jury convicted Hensley.
The opinion states Hensley’s appeal was not yet final when the law changed, allowing it to be applied retroactively.
The appeals court remanded the case back to Superior Court for a new trial. Krauel said Monday he plans to retry the case. A new trial date has not yet been set.
Marina Spencer, the defense attorney on the case, said she was pleasantly surprised by the appeals court’s decision. She said it was apparent throughout the case Hensley had mental health problems, and his desire to go to trial was an effort to feel heard and to highlight a lack of mental health resources. She said she doesn’t believe he ever intended to carry out the threat.
On Feb. 27, 2021, Hensley went to Costco near Camas and contacted a manager. During a conversation with her, he told her “there is a legitimate death threat that I have made to assassinate (the judge). I don’t want to do that, but I’m willing to do that,” according to court records.
Hensley recorded the conversation and emailed it to the manager, who sent the recording to law enforcement. Hensley had appeared before the judge multiple times, and the judge was familiar with Hensley’s struggles with his mental health, court records state.
During trial, the judge testified that after he was told of Hensley’s threat, he began altering his route home and checking whether he was being followed. He said he placed Hensley’s photo on his fridge and told his family to call 911 if they saw him, according to the appeals court opinion.
During Hensley’s trial testimony, he said he has Tourette syndrome, which a mental health professional who had worked with Hensley also testified to. He said he was experiencing symptoms the day he made the threats, and he thought getting himself arrested would help him get psychiatric help, the appeals court noted.
Hensley said he thought his threat was too ridiculous to be taken seriously, and he made the threat against the judge because the judge knew him and his mental health struggles. He said he thought the judge would know he was nonviolent, court records state.
