Appeals court upholds conviction for threat during Ketchikan bail hearing

The Alaska Court of Appeals on Friday upheld Michael Jared Henderson's felony conviction for threatening to kill a witness while listening by phone to his son's bail hearing in Ketchikan. The court rejected his argument that jurors should have been told how the First Amendment defines a true threat.

Chief Judge Allard's published opinion applies Counterman v. Colorado, a 2023 U.S. Supreme Court decision. It requires proof that a speaker at least consciously disregarded a substantial risk that their words would be taken as a threat of violence.

Henderson's 18-year-old son was charged with first-degree murder in the December 2021 shooting death of his older brother. At the Feb. 1, 2022, bail hearing, eyewitness Katrina Johnson, the older brother's friend, said she would not feel safe if the son were released. Superior Court Judge William Carey lowered bail from $100,000 to $75,000 but said he was keeping it high to protect Johnson.

Henderson, who had been drinking, was listening with his then-girlfriend, Deborah Staples. During the hearing, the clerk muted and unmuted callers without announcing it, and Henderson's line ended up open.

As the parties went over paperwork, Staples asked about the bail amount. In a slurred but calm, matter-of-fact tone, Henderson said, "Don't worry about that. I'm going to kill Katrina Johnson." The prosecutor heard it and told the judge. Johnson heard it too, and she sought a restraining order the next day.

At trial, his lawyer argued the remark was meant only for Staples and that Henderson believed the line was muted. The jury convicted him of interference with official proceedings.

The appeals court said the jury instructions required jurors to find that Henderson "knowingly threatened" Johnson "with the intent to retaliate," a mental state the court said exceeded what Counterman requires.

Henderson also argued that the Alaska Constitution requires proof that a speaker intended a threat. The court said the jury necessarily found that he intended his words to be received as a threat, so it did not need to decide whether the state constitution sets that higher bar.

The court also found the evidence sufficient and upheld the denial of a new trial.

Superior Court Judge Daniel E. Doty sentenced Henderson to 48 months with 30 suspended, leaving 18 to serve, plus four years of probation. "They saw it as a real threat with real impacts on real people in a major and important real court proceeding," Doty said of the jury at sentencing.

The appeals court kept a probation condition allowing warrantless searches for firearms and deadly weapons. It struck the part of that condition allowing searches for "items used for tampering," finding no direct link to his crime.