Lawyers representing a Los Angeles man accused of making annoying phone calls to the wife of Rep. Devin Nunes (R-Tulare) hope to have the criminal case against him thrown out of court on procedural grounds.
Hearing Rescheduled
In August, eight months after the allegedly illegal telephone use in January of 2020, defendant William Burden was charged with a single misdemeanor crime, making “annoying telephone calls” to Elizabeth Nunes, wife of the congressman, an alleged violation of the State Penal Code. Last week, attorneys for Burden expected to argue the charges against their client were not specific enough and the Tulare County Superior Court has no jurisdiction to hear the case.
“Harassing phone calls is basically what they’ve charged him with,” said Visalia attorney John Sarsfield, who, with co-counsel Maggie Melo, is representing Burden.
Instead of getting their day in court as planned on April 7, the matter was rescheduled for mid-May.
Charges Too Vague
The demurrer–essentially a request by the defense to drop charges against Burden–claims the language used by the Tulare County District Attorney’s office in its charging documents doesn’t say with enough specificity how the phone calls Burden allegedly made to Nunes constitute harassment. According to Sarsfield, the penal code identifies three kinds of harassment: obscenity, threats and annoyance. The charges, he said, don’t make clear the grounds for prosecution.
“We’ve filed the demurrer to clarify,” Sarsfield said.
The type of harassment the DA intends to allege must be specified, he said, in order for the defense to tailor its counter arguments. According to the demurrer, the wording used in the complaint could lead to a variety of accusations, including making threats to the safety of Nunes and her family, or merely causing inconvenience.
“There are so many possible permutations that it is unfair, amounting to a due process violation, to allow the current complaint to stand,” the demurrer reads.
Further, if the DA intends to allege obscenity, the burden of proof becomes much different, with previous court decisions almost invariably upholding a defendant’s right to use harsh language.
“This language might be rude, but it’s not obscene,” Sarsfield said of language at the center of previous obscenity cases. “There are very few spoken-word cases where you can hang somebody for obscene words.”
DA Seeks Denial
In its response, the DA’s office requested the demurrer be denied, apparently arguing the motion amounts to an improper means test of the evidence the DA intends to present against Burden, as well as denying that facts of the case–that Burden was on a cruise ship flying under a foreign flag while outside US territorial waters when the allegedly harassing calls were made–can be introduced as a cause for dismissal.
“This court does not lose jurisdiction over crimes committed in this county by another California resident simply because he committed his internet crime while on vacation,” the DA’s response states.
The DA also maintains its complaint against Burden meets the court’s rules regarding filing charges.
Should the demurrer be granted when the matter is finally heard, the DA’s office will have 10 days to respond with amended charges against Burden or let matter drop.
“If they do amend, then we start all over again,” Sarsfield said.
Challenge to Jurisdiction
Meanwhile, facing criminal charges has been difficult for Burden.
“This has turned his life upside down,” Sarsfield said.
Should the case move forward, Sarsfield said he and Melo intend to challenge the court’s right to hear the case. Their client, he said, was on a cruise ship registered in the Bahamas and sailing in international waters when the alleged communications with Elizabeth Nunes and the school where she teaches took place.
An article by the Daily Wire published at the time the charges against Burden were announced reported the congressman’s wife received “a series of threatening and lewd communications … aimed at her and her children.”
Feds, Locals Investigated Burden
Similar “threats” were also allegedly sent to Sundale Union Elementary School District, where Elizabeth Nunes is a third-grade teacher, Daily Wire reported, and the FBI is apparently involved in the investigation into the alleged annoying phone calls, with Nunes office also claiming a possible criminal conspiracy on Burden’s part.
“Nunes’ office said it hopes the FBI can determine whether Burden was responsible for both sets of messages or if he was working with someone else,” the Daily Wire reported.
Terri Rufert, superintendent for Sundale Union, issued a statement to the Daily Wire that shows the extent of the investigation leading to the single misdemeanor charge against Burden.
“We would like to thank the US Capitol Police, the Tulare County Sheriff’s Office and the Tulare County District Attorney for taking action to protect our students and teachers,” the Rufert’s statement to the Daily Wire said. “We take threats aimed at our school and our kids seriously. We will not tolerate any form of harassment or stalking directed at any of our students or teachers.”