Massachusetts’ witness intimidation statute (G.L. c. 268, Sec. 13B) is a giant legislative turd.
The 660-word law covers behavior that the average person would never describe as witness intimidation.
For instance, under the statute, misleading a law enforcement official during a criminal or civil investigation amounts to witness intimidation.
What’s worse, violations of the statute constitute a felony punishable by a ten-year prison sentence.
Police are fully aware of the law’s severity and its exceedingly broad scope.
Consequently, it’s one of the most frequently charged crimes in district and superior court.
Recently a lawyer made an admirable effort to have the statute deemed unconstitutional by the Appeals Court.
Alas, the justices were unpersuaded.
The facts of the case were as follows.
A woman got a restraining order against her ex-boyfriend.
The order required the man to stay away from the alleged victim.
Despite this order, the man allegedly went to the woman’s home.
While standing outside the woman’s residence, the man began to cry and his ex hugged him.
During their embrace, the man allegedly whispered in the woman’s ear and told her that he knew she was sleeping with a jail guard.
As this was taking place, a police officer pulled up to the house and asked the woman if everything was ok.
The woman–allegedly in fear of the man–told the officer that everything was fine.
The officer then left the scene.
Sometime after this, police arrested the man and charged him with violating the restraining and intimidating a witness.
The man lost at trial and his attorney appealed, arguing that the witness intimidation statute is unconstitutional.
The lawyer made three arguments and the Appeals Court rejected all of them.
First, the lawyer argued that the “recklessness standard” in the statute violates the First Amendment of the U.S. Constitution.
The statute provides that witness intimidation can occur when a defendant
directly or indirectly…threatens, attempts or causes physical, emotional or economic injury…to…another person who is a [witness]…with the intent to or with reckless disregard for the fact that it may…impede, obstruct, delay, prevent or otherwise interfere with [a proceeding]…(Emphasis added.)
Under federal law, a defendant can be convicted of inciting a riot or violence only if the government can prove that the defendant specifically intended to incite such behavior.
According to federal case law, the “specific intent” requirement is imposed on the government because incitement is but a “hair’s-breath” away from protected political speech.
The lawyer argued that the same standard should apply to witness intimidation.
In other words, the defendant must intend to intimidate a witness.
Prohibiting words that are simply reckless risks prohibited protected speech.
The Appeals Court rejected this argument.
In the court’s view, the behavior covered by the statute is more similar to “true threats.”
And under federal law, a defendant can be convicted of a true threat without specific intent.
Recklessness is enough.
Next the lawyer argued that the witness intimidation statute was substantially overbroad.
In other words, the statute prohibits a substantial amount of protected speech.
The Appeals Court rejects this argument, saying, “[t]he defendant’s argument fails in this case, however, because he has not identified the substantial amount of speech that is covered.”
Finally, the lawyer claimed that the statute should be voided due to vagueness.
Why? Because it prohibits injuring and threatening a witness with “emotional injury.”
The defendant argues that with respect to emotional injury, different peoples’ thresholds for injury and emotional vulnerabilities differ and therefore, it is vague. With respect to intimidation, he argues that the intimidation provision might depend on idiosyncrasies of the victim.
The justices reject this argument as follows,
Even if these phrases had ambiguous outer edges, something we need not decide, there is no substantial risk of a miscarriage of justice here, because the defendant’s conduct, coming onto the victim’s property in violation of an abuse prevention order, telling her that he wanted to get “back in the house” and that he knew she was sleeping with a jail guard, all while his friend, who had already told her to amend the order, was standing by, is not borderline conduct. Objectively viewed, such conduct could intimidate and cause emotional harm to a reasonable person. “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.
The full text of the slip opinion is attached below.