Conviction overturned in airport-threat case

The state Supreme Court has overturned the conviction of a man found guilty of threatening to bomb Seattle-Tacoma International Airport in 2001, saying the jury that heard his case was given incomplete instructions.

Tracey Johnston, whose last address was in Renton, appealed his conviction, contending the King County Superior Court jury that heard his case wasn't offered the legal definition of a "true threat."

The Supreme Court, in a ruling released Thursday, noted that the state statute that covers bomb threats applies only to true threats — those likely to be carried out.

Deputy King County Prosecutor Jim Whisman said his office anticipated the ruling. He said Johnston will be retried.

Neither Johnston, who served nine months in jail after his conviction, nor his lawyers could be reached for comment Thursday.

Johnston's conviction stems from an incident on May 2, 2001, when he and another man were drinking alcohol they had brought aboard an Alaska Airlines flight, according to the Supreme Court's synopsis of the case.

A flight attendant told them that personal alcohol wasn't permitted on the flight and confiscated an alcoholic beverage from the men. She notified the pilots, who alerted Sea-Tac Airport. Port of Seattle police were also contacted.

A police officer who met the flight noted that Johnston had watery eyes and smelled of alcohol. A criminal background check found that Johnston was wanted on two misdemeanor warrants, and he was arrested, according to the Supreme Court.

During his arrest, Johnston said he would return to the airport with "a Ryder truck and some nitro diesel fuel," court papers said. He also threatened the flight attendant.

Johnston's King County conviction was upheld by the state Court of Appeals. But in reversing the conviction, the Supreme Court said, "a true threat is a serious threat, not one said in jest, idle talk, or political argument."

"We have adopted an objective standard for determining what constitutes a true threat: A true threat is a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual]," according to the court.

The court noted that the state's bomb-threat statute covers only true threats. Otherwise, it would be overly broad and could criminalize free speech.

A majority of the justices ordered the case remanded back to King County. Justice Richard Sanders, in the court's ruling, said he agreed with his fellow judges but would dismiss the case.

Whisman said he knew there were "problems" with the jury instructions because in 2004 the Supreme Court reversed another King County case because prosecutors never spelled out what constitutes a true threat.

Though Whisman wasn't involved in the first trial, he said prosecutors at the time followed the law.

"The defendant in this case made an allusion to the Oklahoma City bombing," Whisman said, referring to the 1995 bombing of the Alfred P. Murrah Federal Building, carried out with explosives in a rented Ryder truck.

"We think if you make a statement like that, reasonable people will think he'll carry it out."

Whisman said when the case is retried he will be more specific with the jury instructions and define what a true threat is.

He likened such a threat to "shouting fire in a crowded theater."

"By making others believe that there is a fire, you cause a general panic," Whisman said.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com