Justice Rachel Wainer Apter during a session of the New Jersey Supreme Court on January 30, 2023 (Amanda Brown for New Jersey Monitor)
New Jersey’s witness tampering law is constitutionally sound, but Hudson County prosecutors may have misapplied it when they charged an accused carjacker for writing a “polite” letter to the victim that contained no threats, the New Jersey Supreme Court ruled Thursday.
Civil rights advocates and defense attorneys had argued that prosecutors were wrong to charge William Hill with witness tampering. They argued that it’s not illegal for a defendant to communicate with a victim unless a judge expressly forbids it, the letter was constitutionally protected free speech, and Hill merely professed his innocence and didn’t try to scare the woman from testifying. Prosecutors relied on the letter to persuade a jury to convict him in a 2018 carjacking in Harrison.
In an appeal, Hill argued the state’s witness tampering law — which requires that a defendant “knowingly” did something “a reasonable person” would believe would intimidate a witness — is constitutionally overbroad. The American Civil Liberties Union of New Jersey filed a supporting brief that called for justices to strike down that part of the law.
But Justice Rachel Wainer Apter, writing for a unanimous court, rejected those arguments, citing a recent U.S. Supreme Court ruling that rejected an overbreadth argument in a criminal solicitation case.
“A court may hold a law facially invalid for overbreadth under the First Amendment only if ‘the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech’ relative to its ‘plainly legitimate sweep,’’” Wainer Apter wrote.
To strike down a law as overbroad, she wrote, there must be a “lopsided ratio” of unconstitutional applications of the law, compared to constitutional applications. Otherwise, challenges to the law, like Hill’s, must be decided case by case, she added.
“Defendant asks us to invalidate the witness tampering statute and threaten a wide swath of prior witness tampering convictions as a remedy for what may be one unconstitutional application of the statute: his own case. This we cannot do,” Wainer Apter wrote.
Still, Wainer Apter found the letter “facially innocuous” and noted prosecutors’ “consistent strategy” to focus jurors’ attention on the letter.
She let Hill’s carjacking conviction stand but vacated his conviction for witness tampering and booted it back to the trial court for a new trial on that specific charge. To secure a new witness tampering conviction, prosecutors would have to prove Hill intended for his letter to discourage the victim from testifying or offering false testimony, or to otherwise obstruct or delay proceedings, Wainer Apter wrote.
Hill is now behind bars serving a 12-year sentence for the carjacking; the witness tampering conviction had earned him an extra three years of imprisonment.
Alexander Shalom is director of Supreme Court advocacy at the American Civil Liberties Union of New Jersey. He noted that the letter was key to Hill’s carjacking conviction in a case where defense attorneys said the evidence against him otherwise was flimsy.
The victim testified at trial that receiving the letter “was terrifying,” a detective read it aloud to the jury, prosecutors focused on it in opening and closing statements, and jurors reviewed a copy of it and listened to a playback of it during their deliberations, according to the ruling.
“Hill got a raw deal,” Shalom said.
More broadly, Shalom found it “disappointing” New Jersey’s justices took their cues from the conservative U.S. Supreme Court.
“The United States Supreme Court has substantially limited the overbreadth doctrine. But the New Jersey Supreme Court didn’t have to follow suit. That they chose to do so is disappointing,” he said.
Waiting for unconstitutional applications of the law to pile up in order to deem a law unconstitutional is also a “bizarre” approach to protecting civil rights, Shalom added.
“If you say you can only challenge this for overbreadth where you can find lots and lots of these cases, what that means is the government can unconstitutionally apply a statute for the first several times because you haven’t built up this kind of stable of improper usage,” he said. “That’s problematic.”
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