Defense attorney: Sain’s attorney ‘making things worse’

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DENVER -- One day after FOX31 Denver broke news about the arrest of a man who sent death threats to a state lawmaker who is sponsoring gun control bills, that man's attorney addressed the media.

The attorney, Siddartha Rathod, argued that Franklin Sain was well within his First Amendment rights to send what some have called vile, racist emails and voicemails to state Rep. Rhonda Fields, who he threatened with violent retaliation should her bills, including a ban on high-capacity magazines, become law.

Rathod, a protege of David Lane (an attorney who has represented Ward Churchill and is known for taking up high-profile cases), also repeatedly mentioned Sain's military service.

In a written statement and a series of television interviews, Rathod suggested that Fields, not his client, was to blame.

"We appreciate Representative Rhonda Fields’s service to our community; however, we remind you that Mr. Sain valiantly served his country as a decorated Iraqi war veteran," Rathod said in a statement. "Rep. Fields appears to be furthering her political agenda by trampling on Mr. Sain’s constitutionally protected free speech in order to infringe on all Coloradans’ Second Amendment rights."

"Mr. Sain hired some very good lawyers in this case. Unfortunately, I think in this case those lawyers are making things worse," said David Beller, a defense attorney with the Denver firm Recht-Kornfeld.

"First of all, there is no one educated in the law -- no one who has a working understanding of the law -- who is going to call these statements 'free speech'. Most speech is protected. True threats are not protected by the Constitution. They're just not," Beller said.

Threats of intimidation were exempted from First Amendment protections in a decade-old Supreme Court ruling in the case of Virgina v. Black, and in several other rulings.

Additionally, Sain's Army service has no bearing on the legal merits of his defense, Beller said.

"Just because you fought for Constitutional rights doesn't mean you have any expanded Constitutional rights than any other American," Beller said.

Sain was suspended Tuesday from his job as Chief Operating Officer at Softec Solutions, a minority-owned Englewood-based Internet technology company.  Rathod conceded that he's not likely to ever work there again.

While Rathod argues that Sain did not break any law, Beller is almost certain that District Attorney Mitch Morrisey will file charges.

"The statute that he's going to be prosecuted under has been challenged many times based on the First Amendment and it has been upheld every single one of those times," Beller said.

"Virtually every Constitutional amendment has restrictions. You have the Second Amendment right to bear arms, and yet you're not allowed to have a rocket launcher or a tank in your backyard."

Ironically, Sain is in trouble for going too far in expressing anger over proposed restrictions to the Second Amendment and, based on his lawyer's statements, relying on greater First Amendments than actually exist in mounting his defense.

"Here, he's saying he doesn't want restrictions on his Second Amendment -- they already exist -- and he's saying that he doesn't have to abide by the restrictions of the First Amendment," Beller said.  "There's a lot of irony in that."

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