The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.