New Jersey Supreme Court weighs free-speech claims in witness tampering case

In April 2019, William Hill mailed off a letter that seemed innocuous enough, assuring its recipient that he places his faith in God and complimenting her with a playful “you go, girl!” beside a smiley face.

But Hill at the time was accused of a violent carjacking, and the woman he wrote to was the victim.

Now the New Jersey Supreme Court must decide if the missive was constitutionally protected free speech, as Hill’s attorneys insist, or witness tampering, as prosecutors charged.

The justices heard arguments in the case Tuesday, weighing whether the letter’s content matters, whether the letter-writer’s intent is more or less important than the recipient’s reaction, and whether a letter posted on social media or sent anywhere but the victim’s home would constitute witness tampering too.

“The presumption especially under the state constitution is that speech is protected … even if speech might be alarming or disfavored speech we don’t like,” said John P. Flynn, the assistant deputy public defender who argued on Hill’s behalf.

But Patrick R. McAvaddy, an assistant prosecutor in the Hudson County Prosecutor’s Office, countered that Hill was charged with witness tampering because he sent his letter to the victim’s home, “making it clear to her that he knew who she was, where she lived, and that he was willing to act on that knowledge.”

The case stems from an October 2018 carjacking, in which the victim left her car running outside her Harrison home while she ran back inside for a sweater, according to court paperwork. When she came back outside, a man was in the driver’s seat, she told police.

She beelined to the car, ordered him out, and then jumped in the open door and grabbed the steering wheel when the robber threw the car into reverse, according to case records. The carjacker then sped off with the victim’s legs still hanging outside, stopping only after the victim shifted the gear to neutral, records say. He then ran away.

Investigators identified Hill as a suspect based on the victim’s eyewitness identification and surveillance video, records show.

A few months before his fall 2019 trial, he sent the letter in question. It contained no explicit threat but instead Hill’s “respectful request” that the victim “please tell the truth if you’re wrong or not sure 100%.”

“Please don’t be startled because I’m coming to you in peace. I don’t want or need any more trouble,” he wrote.

Hill eventually got sentenced to 12 years in prison for the carjacking, and the letter earned him an extra three years behind bars when the jury convicted him of witness tampering, too.

He appealed, saying the witness tampering statute is unconstitutionally vague and overbroad because it requires a person to “knowingly” engage in conduct that a “reasonable person” would believe would deter a witness or informant from testifying truthfully or at all.

An appeals court rejected his argument, but the Supreme Court agreed to hear it.

Tuesday, the justices and attorneys arguing the case spent part of the hearing mulling what exactly “knowingly” and “reasonable person” mean.

Flynn told the court that the trial judge who allowed the jury to read Hill’s letter “tipped the scales” against Hill because prosecutors otherwise presented “razor-thin evidence” against him.

The justices also seemed puzzled that prosecutors introduced the text of Hill’s letter into evidence, given that it contained no overt threat.

Without the letter, Flynn argued, Hill might not have been convicted. He pointed to problems with eyewitness identification, saying the victim’s initial description of the carjacker lacked details and she wavered and failed to follow instructions when asked to identify the carjacker from a photo array.

“This was an identification that was cross-racial, made in extremely poor viewing settings when it was dark out and the victim was hanging out of the car,” Flynn said.

Several groups joined Hill’s fight, including the American Civil Liberties Union of New Jersey and the Association of Criminal Defense Lawyers of New Jersey.

The association’s Doris Cheung told the court that “an ordinary person” might not know that communicating with a victim could be a crime.

Ronald K. Chen, arguing for the ACLU of New Jersey, raised concerns about how implicit bias may have influenced the victim’s reaction to receiving Hill’s letter.

“We are all subject to implicit biases through our backgrounds and how we were raised, and we will interpret different languages, different symbols, different acts differently,” Chen said. “There is a danger when one subjects a criminal defendant too much to the vagaries that can be injected when the crime is measured in some way by the reaction of a third party.”

It was hard to tell from the justices’ questions how they might rule.

“Your position is that a defendant charged with committing a crime has the First Amendment right to contact the victim awaiting trial?” Justice Douglas Fasciale asked Flynn.

“Yes,” Flynn replied, adding that judges could issue no-contact orders if they feared witness tampering.

Later, Justice Michael Noriega asked McAvaddy: “Under your theory of prosecution there, is it fair to say that a defendant is uniformly barred from ever contacting a victim outside of the context of a no-contact order?”

“No, your honor,” McAvaddy responded, explaining that defendants should not contact victims “outside the proper channels.”