Hardball Litigation Among Neighbors, or Obstruction of Justice?

Not such "a winner" after all.

|The Volokh Conspiracy |

From Cook v. State (Ind. Ct. App. Mar. 31, 2020):

Darren Collins … became aware of a dispute between [Jennifer] Cook and the Brumleys regarding noise coming from Cook's house. Collins lived less than a quarter mile from Cook's residence, the noise bothered him, and he called and made reports about it. At some point, a court proceeding was initiated as a result of the dispute, and Collins was subpoenaed to provide a deposition for the trial.

On April 26, 2018, Collins was mowing his cousin's property, and Cook, whom he had not previously met, stood in the path of the mower and motioned for him to stop. Collins stopped the mower and removed his earplugs so he could hear what she was saying. Cook told him she wanted to meet him and he was one of the persons suing her, even though he had not sued her. She stated she wanted to know why he "was doing this" and asked what he "had to gain from this." Collins said he did not know he was suing her, and she said, "well you are one of the persons that is involved with this." Collins believed she was referring to the case with the Brumleys.

Cook said he had made numerous reports and she had a "document file of all of the times that [he had] called in." Cook told him he "needed to consider what was going on and take this opportunity to bow out of the proceedings so that … [he] wouldn't be further involved and … that [he] wouldn't lose anything in the end." She also said that she was a successful woman and "she had uh, the proof of that, by her home, and her cars and all of that, that she was a winner" and he "could stand to lose everything, and that [he] would wind up with nothing." She also told him he "needed to make the right decision." After the conversation, Collins was a "nervous wreck," started parking his car differently, did not stay at home "a lot," and was "just tore up." …

The court found Cook guilty of attempted obstruction of justice as a level 6 felony … [and] sentenced Cook to one year all suspended to probation….

The majority, written by Judge Elaine Brown and joined by Judge Patricia Riley, upheld the conviction:

Ind. Code § 35-44.1-2-2 governs obstruction of justice and provides that "[a] person who … knowingly or intentionally induces, by threat, coercion, false statement, or offer of goods, services, or anything of value, a witness or informant in an official proceeding or investigation to … withhold or unreasonably delay in producing any testimony, information, document, or thing … commits obstruction of justice, a Level 6 felony …." An " '[o]fficial proceeding' means a proceeding held or that may be held before a legislative, judicial, administrative, or other agency or before an official authorized to take evidence under oath, including a referee, hearing examiner, commissioner, notary, or other person taking evidence in connection with a proceeding." …

"Under the obstruction of justice statute, the term 'coercion' 'carries with it, at a minimum, the sense of some form of pressure or influence being exerted on the will or choice of another.' " "The form of pressure or influence 'may vary widely—and certainly includes harassment, physical force, intimidation, and threats—as long as it is exerted knowingly or intentionally to induce conduct by a witness or informant that is proscribed' by the obstruction of justice statute." In addition, the failure to comply must be accompanied by a consequence….

We respectfully disagree with the dissenting opinion's characterization of the statements by Cook to Collins, who was a witness subpoenaed to provide a deposition, that he needed to take the opportunity to bow out of the proceedings so that he would not lose anything in the end, that he could stand to lose everything, and that he would wind up with nothing, as merely a standard conversation between neighbors. When asked if he believed she was threatening him with something, he answered affirmatively….

Based upon the record, we conclude the State presented evidence of probative value from which the trier of fact could find beyond a reasonable doubt that Cook committed attempted obstruction of justice as a level 6 felony….

One of the three judges (John G. Baker) dissented:

Under First Amendment principles, it is well established that "[s]tatutes which threaten to inhibit the exercise of constitutional rights or which impose criminal penalties are subjected to greater scrutiny and less vagueness is tolerated in them than in other types of laws." Though I do not question the constitutionality of the obstruction of justice statute, I note that we must evaluate these types of statutes with greater scrutiny, as they can chill ordinary speech between private individuals. And in my opinion, this colloquy between Cook and Collins amounts to a standard conversation between neighbors, plain and simple. Cook approached Collins while he was mowing his lawn, Collins was wearing earbuds and listening to music, and beyond Collins testifying that he "started parking the car differently and … didn't stay home a lot," he did not testify that he thought Cook would actually come through on anything she said.

It is true that Collins had previously given a deposition for a court proceeding involving Cook. But to convict Cook of attempted obstruction of justice for the aforementioned language is concerning and, quite frankly, a bit of a stretch. Nothing in this criminal statute precludes Cook from discussing the case with her friends, family, or even random strangers. And going forward, it is worth wondering what other "threatening" or "coercive" language might be proscribed under this statute and under the analysis employed by the majority.

In other words, should a conviction like this be upheld, I am worried that other individuals might be caught in the crosshairs of criminal prosecution for attempted obstruction of justice should they engage in similar conversations. If anything, we would encourage friends and neighbors to resolve disputes amongst themselves without any court involvement; allowing Cook's conviction to stand could discourage these very resolutions from taking place. In my view, the evidence here is insufficient to support a conviction for attempted obstruction of justice, and no reasonable factfinder could find the elements of this crime proved beyond a reasonable doubt.

 

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  1. The majority were right. The face to face confrontation makes this “conversation” an implied threat.

    1. Cook told him he “needed to consider what was going on and take this opportunity to bow out of the proceedings so that … [he] wouldn’t be further involved and … that [he] wouldn’t lose anything in the end.” She also said that she was a successful woman and “she had uh, the proof of that, by her home, and her cars and all of that, that she was a winner” and he “could stand to lose everything, and that [he] would wind up with nothing.”

      “Implied” threat my Aunt Annie’s Ass.

    2. But are all threats actionable?
      What about threats of libel actions?

      False fire alarms have always been a big problem in student dormitories, not only does it suck having to get up and go outdoors in the middle of the night (sometimes multiple times) but they lead to neither students nor the fire department taking them seriously, and there are real fires in dorms. Three students died (58 injured) at Seton Hall in 2000, ten died at Providence College in 1977, etc.

      Today we have cameras and facial recognition, but back in the 1980s universities came up with the idea of giving a $500 cash reward ($1500 today) to any student who identified the perp who pulled the false alarm, this in addition to the social incentive of being a good citizen reporting a crime to the authorities (along with not having to go out into the snow tomorrow night).

      So A would report observing B having pulled the fire alarm, and as long as A was credible (e.g. identified the correct pull station*), the university would proceed with student conduct charges against B.

      Then B’s parent’s attorney would threaten to sue A for libel, unless, of course, A would admit to be mistaken about identifying B as the person who pulled the alarm, or otherwise recant. As hiring an attorney to defend against a libel suit would cost a lot more than $500, even back in the ’80’s, A would inevitably recant.

      And in fairness to B’s parents and their attorney, most of the kids pulling false fire alarms are so drunk that they literally have no memory of having done it (alcoholic blackout) and hence honestly believed that they were being falsely accused. And perhaps some of them were.

      The end result is that I don’t know of any institution that has taken the reward approach in at least the past 25-30 years, and I never heard anything about obstruction of justice relative to the libel suit defense.

      * In resetting the alarm, you (staff & FD) learn which one it was that had been pulled — usually you have to physically reset it. Hence you know which one was pulled.

      1. “And in fairness to B’s parents and their attorney, most of the kids pulling false fire alarms are so drunk that they literally have no memory of having donIe it (alcoholic blackout) and hence honestly believed that they were being falsely accused. And perhaps some of them were.”

        “I was so drunk I didn’t know what was happening” is plausible, but the way I remember it, the fun was in seeing just how many dudes came out of the womens’ dorm in the fire drill. This was occasionally the subject of betting, on an over/under basis, and the gamblers usually weren’t drinkers. YMMV.

  2. Seems relevant to me that Collins was a witness, not a plaintiff, though it seems Cook didn’t understand that. A witness under subpoena has an obligation to tell the truth, which makes any attempt to influence the witness improper. A plaintiff, on the other hand, has discretion whether to press his case, so trying to influence the plaintiff isn’t per se improper. It becomes a question of whether the means used to influence are improper. Obviously any threat to do something that it itself illegal would be out of bounds. But what about a threat to do something that is itself entirely lawful? (I realize there’s a blackmail analogy here.)

    1. “Seems relevant to me that Collins was a witness, not a plaintiff”

      I’m not sure that Collins was a witness — a lot of this municipal stuff is brought as a convoluted civil action (so as to avoid having to provide the defendant counsel) and it often really isn’t clear who is (or isn’t) a plaintiff.

      1. The plaintiff’s name is on he complaint, in the caption.

  3. [a] person who … knowingly or intentionally induces, by threat, coercion, false statement, or offer of goods, services, or anything of value, a witness or informant in an official proceeding or investigation to … withhold or unreasonably delay

    I’m wondering whether “induces” implies success. Obviously you can offer an inducement, but fail to move the person you are trying to induce, but that sounds more like “attempts to induce” than “induces.”

    I’d have thought you’d struggle to “induce…a witness..to withhold….testimony” if the witness goes a head and testifies.

    1. Attempted obstruction of justice.

      1. Indeed. The court noted she was conviced of attempted obstruction of justice.

        I was simply asking whether other folk agreed with my interpretation that “induces” implies success. Obviously you can attempt to induce someone and fail. But presumably the attempt would an attempt to succeed at inducing them.

        The cited code provision does not, so far as I can see, mention attempts. Presumably that is imported from elsewhere. In any event, nobody seems to have doubted that an attempt was criminal.

        1. Per the opinion, it’s imported from Ind. Code § 35-41-5-1, adopting “substantial step” toward the commission of the crime.

          I agree with your interpretation that the obstruction provision requires success to convict for obstruction. I don’t have any idea how Indiana courts have treated it, but since there’s already an offense for attempted obstruction, there should be no reason for them to have to interpret “induces” differently.

          1. Well spotted.

        2. “nobody seems to have doubted that an attempt was criminal.”

          Attempting to commit a crime is criminal. What radical thinking.
          I’m pretty sure it’s taught that way in Criminal Law class, even though I didn’t take that class.

  4. I have a very different take on this — often one neighbor seeks to drive another out of the neighborhood. Often its over something quite petty like a property line dispute or where vehicles are parked, I know of one case where the dispute was about a grade that the neighbor’s *father* had given her in high school, some 40 years earlier.

    So the malicious neighbor goes around the neighborhood, promulgating falsehoods to third parties and encouraging them to act on them, i.e. call the police. So doesn’t the other neighbor have the right to go to the same third parties and say “Hi, I’m B, why are you saying this about me?”

    1. Absolutely, he has that right. But, not the right to threaten the neighbor. And it’s clear that there can be physical threats and also economic threats. The court found that such a threat had been made. I, having not been present, am in no position to question the accuracy of that decision. But yeah; absent a restraining order, nothing can or should prevent neighbors from talking with each other…as the dissent noted, we want to promote extra-judicial resolutions very often in the case of neighbor disputes.

    2. “often one neighbor seeks to drive another out of the neighborhood”

      Do you live in Westeros? It sure sounds like you live in a contentious neighborhood.

  5. Protected speech or illegal threats? Somebody has to judge.

    That’s why judges earn the big bucks.

    1. But doesn’t “due process” mandate that a person of average intelligence know what conduct is permitted and what is prohibited?

      1. Yes but there are always fringe cases. That’s not new. Violent threats have always been unprotected, but there can be fringe cases there too.

        The citizen of average intelligence does not dance on the rim of the canyon.

      2. Trying to convince people who may be testifying against you that they should not testify at all is one of the “prohibited” column.

  6. Definitely sounds like tampering with a witness (using the common English definitions of these words, not necessarily using the precise legal definitions) You have a right to confront witnesses against you (in court). Trying to intimidate them from actually appearing in court is, and should be, off-limits.

    1. I agree with you re this case (as I have posted, earlier). But I expect that lots of cases are really close calls. If you complained about me, do I have the right to chat with you and note that I have been keeping records of your own late-night parties? May I mention that I know your son has been selling drugs to his high school friends (I even have video of these transactions), but I’ve been a good neighbor and haven’t yet turned them over to the police?

      I don’t know the answer to that. I *do* know that, if I’m the father of this drug-selling child, I REALLY WANT the opportunity to hear from my disgruntled neighbor before he takes his evidence to the cops . . . I think most people would love to have the opportunity to make a fully-informed decision, while knowing all the relevant possible consequences. (Eugene [?? Maybe someone else??] had a number of very interesting posts about the possible benefits of blackmail years ago–related to the David Letterman blackmail case, I recall.)

      I can totally imagine this defendant, a few years from now, encountering a similar situation with a new neighbor. But now, she does go ahead and countersues the new guy. And drives the guy into bankruptcy. When he asks her, “Why did you do this? Why not just talk to me first?”, she has to respond with an explanation of what happened to her when she did try a conversation in the past.

      I like this result. But I see lots of complications, gray areas, and confounding variables.

      1. I don’t know enough criminal law to speak to the precise legal requirements to make a charge of witness tampering stick (I didn’t even take criminal law in law school), but it seems to me if you find out someone is going to be called to testiy against you in court, you can’t proceed to present an argument of any kind that they ought not to testigfy.

        1. Damn typoes. I know how to spell “testify”.

          1. I figured you were auditioning for a position as presidential twitterator.

            1. When I run for President, I will campaign on the single plank of turning Seal Teams loose to pursue spammers.

      2. “I see lots of complications, gray areas, and confounding variables.”

        That’s how law generally works. If it were all easy, law school would be a lot shorter (and cheaper).

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