PAX Centurion - March / April 2014

www.bppa.org PAX CENTURION • March/April 2014 • Page 23 Legal Thoughts: Thomas Drechsler, Esq. Byrne & Drechsler, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Intimidation statute amended See Intimidation on page 24 I n 2006 the legislature enacted a substantial amendment to the crimi- nal statute generally entitled “Intimidation of aWitness.” M.G.L. 268 §13B. Prior to that amendment, the statute encompassed conduct which clearly fell within the purview of what all of us would recognize as witness intimidation. The amended statute bears the same title, but it has really been expanded in scope and transformed into a state obstruction of justice statute. The limitation in the title of the statute has led to some confusion. The statute still includes all of the things that one would think of as witness intimidation, such as threats or attempts to cause physical injury to a witness. It also includes a form of what resembles bribery, or attempted bribery, as it criminalizes the conveyance of gifts, offers or promises of anything of value to a witness in a crimi- nal investigation. However the amended statute also prohibits a much broader category of conduct. M.G.L. 268 §13B: (1) Whoever, directly or indirectly, willfully (a) threatens, or attempts or causes physical injury, emotional injury, economic injury or property damage to; (b) conveys a gift, offer or promise of anything of value to; or (c) misleads, intimidates or harasses another person who is: (i) a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type; (ii) a person who is or was aware of informa- tion, records, documents or objects that relate to a violation of a criminal statute, or a viola- tion of conditions of probation, parole or bail; (iii) a judge, juror, grand juror, prosecutor, police officer, federal agent, investigator, defense attorney, clerk, court officer, probation officer or parole officer; (iv) a person who is furthering a civil or criminal proceed- ing, including criminal investigation, grand jury pro- ceeding, trial, other criminal proceeding of any type, probate and family proceeding, juvenile proceeding, housing proceeding, land proceeding, clerk’s hearing, court ordered mediation, any other civil proceeding of any type; or (v) a person who is or was attending or had made known his intention to attend a civil or criminal proceeding, including criminal investigation, grand jury proceed- ing, trial, other criminal proceeding of any type, probate and family proceeding, juvenile proceeding, housing proceeding, land proceeding, clerk’s hearing, court-ordered mediation, any other civil proceeding of any type with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished by imprisonment in a jail or house of correction for not more than 2 and one-half years or by imprisonment in a state prison for not more than 10 years, or by a fine of not less than $1,000 nor more than $5,000, or by both such fine and imprisonment. (2) As used in this section, “investigator” shall mean an individual or group of individuals lawfully authorized by a department or agency of the federal government, or any political subdivision thereof, or a department or agency of the commonwealth, or any political subdivision thereof, to conduct or engage in an investi- gation of, prosecution for, or defense of a violation of the laws of the United States or of the commonwealth in the course of his official duties. (3) As used in this section, “harass” shall mean to engage in any act directed at a specific person or persons, which act seriously alarms or annoys such person or persons and would cause a rea- sonable person to suffer substantial emotional distress. Such act shall include, but not be limited to, an act conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including but not limited to any device that transfers signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications. (4) A prosecution under this section may be brought in the county in which the criminal investigation, grand jury pro- ceeding, trial or other criminal proceed- ing is being conducted or took place, or in the county in which the alleged conduct constituting an offense occurred. As you can see, the amended statute goes far beyond the crime of witness intimidation. It now criminalizes, for example, the act of “misleading” a large category of individuals who might be involved in legal proceedings. Misleading is obviously a much broader term than harassment or intimidation. The amended statute criminalizes the act of misleading several categories of individuals including: 1) witnesses or potential witnesses at any stage of a criminal investigation or proceeding; 2) a person who “is or was aware of information, records, documents or objects that relate to a violation of a criminal statute, or a violation of conditions of probation, parole or bail”; 3) “a judge, juror, grand juror, prosecutor, police officer, federal agent, investigator, defense attorney, clerk, court officer, probation officer or parole officer.” But the statute does not stop there. It includes misleading a “person who is furthering a civil or criminal proceeding, including criminal investigation, grand jury proceeding, trial, other criminal proceeding of any type, probate and fam- ily proceeding, juvenile proceeding, housing proceeding, land proceed- ing, clerk’s hearing, court ordered mediation, any other civil proceeding of any type.” It even criminalizes the act of misleading someone who