John Anderson wasn’t happy to see his wife outside his girlfriend’s residence in Coeur d’Alene, Idaho. Understandably, she wasn’t thrilled by the encounter, either. In entirely predictable fashion the confrontation got physical, and Anderson shoved his wife, thereby compounding his adultery with criminal battery.
The subsequent arrest and brief incarceration did nothing to improve Anderson’s mood. When he got out of jail, rather than apologizing to his wife – which should have been his first priority – Anderson called the cop who had arrested him, Officer Timothy Neal of the Coeur d’Alene Police Department, who was away from his desk.
Officer Neal later reported that Anderson left a voice mail message saying that if the case went to trial, he would “get me on the stand and let people know I’m gay.”
Making that claim in public would apparently injure Officer Neal, so he charged Anderson with felonious intimidation of a witness – thereby making that claim part of the public record. Anderson, who acted as his own defense counsel during his trial, was convicted on charges of misdemeanor battery and felonious witness intimidation.
Sentenced to a year in prison and two years of supervised probation, Anderson appealed his case to the Idaho Supreme Court, which overturned the latter conviction because of improper instructions to the jury. The trial judge erred by failing to explain that the State had to prove every element of the offense, which includes not only an effort to intimidate or harass a witness, but the intention to prevent the witness from “testifying freely, fully and truthfully” in court.
“The jury may have concluded that Anderson did not leave the recorded message for the purpose of preventing Officer Neal from testifying freely, fully, and truthfully, but rather for the purpose of venting his anger or simply to irritate or annoy Officer Neal,” observed the Court. “It is the State that bears the burden of proving beyond a reasonable doubt that Anderson possessed the intent at issue….”
According to the Idaho Supreme Court, it isn’t a form of “witness intimidation” irritate, annoy, harass, or even threaten a police officer who is planning to testify against you in court, unless the prosecution can prove that this was done for the specific purpose of either preventing the officer from testifying, or inducing him to commit perjury. A subsequent ruling expanded that principle to encompass overt acts of violence against potential witnesses.
Sarah Phelps, a bartender in Sandpoint, Idaho, contacted the police to report that a man named Mike O’Neill had sold drugs – of the non-government-approved variety – to customers in her bar. Ms. Phelps – who, as we will see, had substance issues of her own to deal with – agreed to act as a police informant and a witness against O’Neill.
Following O’Neill’s arrest, he made a phone call from jail to his nephew, Robert Sutton, in which he characterized Phelps as a “bitch” and said that “I want to see that bitch on the stand so I can look at her and f******g spit.” He made several other remarks that could be construed as an invitation for his friends to intimidate and threaten the potential witness.
On the following day, while Phelps was walking her pitbull, the dog discovered two balls of raw hamburger, which the animal quickly devoured despite his owner’s frantic efforts to stop him. In short order the dog became violently sick and was taken to a veterinarian for treatment.
Anguished and afraid, Phelps went to her bar and downed a half-dozen screwdrivers. Somehow she made it back to her house and passed out – only to be startled awake by Sutton and his adult son, who barged into her home uninvited.
“We know that you narced,” the elder O’Neill reportedly told Phelps, caressing her cheek with the barrel of a .45 caliber handgun. “Michael told us. You’re f****d. You’re going down.”
After delivering the threat, the Suttons left, and Phelps called the police.
The elder Sutton was charged with burglary, aggravated assault, and felony intimidation of a witness. Owing to problems with Phelps’s credibility, the jury acquitted Sutton of the first two charges, but convicted him of witness intimidation.
As happened in the case of John Anderson, the Idaho Supreme Court heard Sutton’s appeal, and overturned his conviction because the State had failed to prove that the hideous treatment inflicted on Phelps was intended to prevent her from testifying truthfully.
“An argument can be made that Sutton’s purpose for the alleged break-in was retaliation” against Phelps for “narcing,” instead of “affecting future testimony,” noted the Court. Whether or not they are treated as “intimidation,” violently trespassing on Phelps’s property and threatening her with a gun are of themselves grave crimes, but the jury didn’t convict Sutton of those offenses.
A few years before that episode unfolded in Idaho, Alabama resident Leon Carmichael was accused of intimidating potential witnesses and DEA agents in a federal drug case. A search of Carmichael’s home following the drug-related arrest of two employees found eleven large duffel bags filled with marijuana.
After being charged with conspiracy to sell drugs and launder the proceeds, Carmichael decided to go on the offensive. A website was established – Carmichaelcase.com, which is now defunct – that published names, photographs, and other identifying information about the informants and the DEA agents involved in the case.
“We will have photos and information on all of the courtroom participants – Defendant, Defense Attorneys, US Attorneys, DEA Agents, Informants,” announced the website. “Only public records will be published on this site. This includes all participants in this case, including their names, pictures, and statements.”
A few months later, the website was reformatted to resemble a “Wanted” poster. Visitors to the website were asked if they had “any information about these informants and agents, regardless of how insignificant you may feel it is,” and if they did were invited to contact Carmichael’s attorney. A similar message was published in the form of full-page advertisements in local newspapers.
On two occasions, the federal government filed motions seeking an injunction ordering Carmichael to take down the website. The first was summarily dismissed by US Magistrate Delores Boyd, who ruled that there wasn’t sufficient evidence of either harassment or criminal intent. The second petition led to an evidentiary hearing during which witnesses and DEA agents claimed that the website posed a credible threat to their well-being.
Sherry D. Pettis, whose name and likeness were provided by the website, told a US District Judge that the publicity made her “fearful of what people might do to [me],” causing her to flee the state. Another witness, Robert Patrick Denton, reported that he had been approached at a restaurant by a stranger who claimed that Carmichael was planning to kill him. Carmichael’s co-defendant, who had been offered a deal to turn state’s evidence, told his DEA handler that he was worried his children might be killed if he testified. Having his personal information published in an antagonistic website amplified his anxieties.
Those concerns were plausible, given that Carmichael had previously been convicted of murder, which means he was the kind of violent criminal who tends to service the market for illicit mind-altering substances under prohibition. Judge Boyd agreed that she could impose a protective order to prevent harassment of a witness, but pointed out that this only applies to conduct that inflicts “substantial emotional distress” without serving a “legitimate purpose.”
Carmichael’s website, Boyd ruled, had an entirely legitimate purpose – the collection of information to mount a defense in a criminal trial, as guaranteed in the Sixth Amendment.
The government could require Carmichael to take down his website only if it could demonstrate that the statements published therein constituted a “true threat,” Boyd concluded.
While the U.S. Supreme Court has never provided a clear definition of a “true threat,” its central precedent on the subject, the 1969 ruling in Brandenburg v. Ohio, holds that incendiary speech is protected by the First Amendment unless it displays an intent to bring about imminent, lawless action.
Under this standard, even incitements to criminal violence offered in the midst of political upheaval don’t qualify as “true” threats when they lack “imminence.” This was the finding in the 1982 decision NAACP v. Clairborne Hardware, which addressed speeches made by civil rights agitator Charles Evers during boycotts targeting Mississippi businesses accused of discrimination.
On one occasion, Evers warned that people who broke the boycott would be “disciplined.” On another, Evers told his audience that “If we catch you going in any of them racist, stores, we’re gonna break your damn neck.”
Even though this unambiguous threat of criminal aggression was offered as counterpoint to several episodes of violence, the Supreme Court insisted that such “rhetoric” did not “transcend the bounds of protected speech set forth in Brandenburg.”
Set against this body of case law, the “witness intimidation” charge filed by the Ada County DA’s office against political activist Matthew Townsend is revealed to be consummately devoid of merit, an amalgam of retaliatory viciousness and prosecutorial incompetence.
Townsend’s purported crime was to publish a Facebook post demanding that a similarly meritless charge of “resisting and obstructing” a police officer be dropped. He also promised to wage “a non-violent and legal shame campaign that will be remembered” if the officials behind the charge – including the arresting officer, Meridian Police Corporal Richard Brockbank -- didn’t withdraw it.
Through the familiar alchemy of institutional corruption, the Meridian PD and the Ada County DA’s office transmuted that eminently legitimate exercise of the right to petition for redress of grievances into a terroristic “threat.”
The Meridian PD’s “General Report” claimed that the post “named several specific members of Corporal Brockbank’s family,” which means that the “statements are threatening in nature with the intent to intimidate, influence, and harass Corporal Brockbank and prevent him from testifying as a witness.”
This description is deliberately deceptive. None of Brockbank’s family members was named in the text of the message; they were tagged because Townsend simply forwarded the message to everyone he could find who shared the officer’s surname.
In order to give the widest possible dispersal to his petition, Townsend tagged dozens of people – public officials, friends, fellow activists, and various media personalities and news outlets. Since there’s no rational basis for believing that any of those people were the target of a “threat,” the same must be true of the family members who were incidentally tagged by the message, as well.
Furthermore, an announced intention to do something legal cannot be construed as a “threat” in any sense. Even if Townsend had been sufficiently foolish to make an overt threat against Brockbank, doing so wouldn’t constitute witness intimidation under Idaho or federal case law if this was done for cathartic or retaliatory purposes.
Townsend’s message was a plea for relief from official retaliation inflicted on him by Corporal Brockbank, whose arrest was patently unlawful. The report on Townsend’s initial arrest on January 30 (not February 2, as I have mistakenly reported) makes it clear that Brockbank had no evidence of an actual offense.
Brockbank recalls seeing Townsend – dressed as the Grim Reaper, holding an anti-tax protest sign in one hand and a plastic scythe in the other – “enter the crosswalk as the cross light was flashing.” In the middle of the crosswalk, after the “don’t walk sign had turned solid red” but before the traffic light changed, Townsend “raised both hands up approximately head height with the sign in one hand and the pick ax [sic] in the other.”
What Brockbank admits here is that he did not see Townsend commit an actual violation.
Idaho traffic laws require pedestrians to proceed “within a marked crosswalk or within an unmarked crosswalk at an intersection” and dictates that “they shall yield the right-of-way to all vehicles” using a street or highway. Stopping within a crosswalk to hold up a protest sign is not a violation of that ordinance, and nowhere in Brockbank’s report does he offer testimony that Townsend failed to yield the right-of-way.
Nonetheless, Brockbank primly recounts, “I determined I needed to stop and speak with [Townsend] to educate him on crosswalk laws and proceeding directly across on a flashing don’t walk [sign].” Since Townsend’s conduct was legal, his understanding of the law wasn’t deficient. What aggrieved Brockbank was the fact that the protester wouldn’t admit to committing a non-existent violation, or provide identification when he wasn’t required to under Idaho state law.
“I asked [Townsend] if he wanted to go to jail for refusing to comply with me,” observed Brockbank in words that practically pout on the page. His sense of official entitlement was further offended when Townsend “said he wasn’t doing anything wrong, did not need to provide me with identification, and could not be taken to jail.”
In Townsend’s version of the encounter, he explained to the armed stranger that he wasn’t carrying identification, but supplied his name to the officer when asked to do so. This point should be easy to clarify, since Brockbank, like all Meridian patrol officers, is accoutered with a bodycam. However, the Meridian PD has not provided audio or video recordings to Townsend’s attorney, and denied my public records request for the same.
Brockbank’s documented intention in accosting Townsend was to tutor him – and the officer got schooled in the law by a mere Mundane. But having the law on one’s side avails nothing when dealing with an armed state functionary who is granted “qualified immunity” from it.
Accordingly, when Townsend ended the contact and began to cross the street, the petulant officer “told [him] I was not done with him and to stop” – that is to say, he commanded Townsend to commit the same supposed violation that had led to the initial encounter, stopping in the middle of a crosswalk. Once on the other side of the street, Brockbank arrested and handcuffed Townsend “without incident.”
As Brockbank’s report documents, he arrested Townsend without evidence that the victim had committed an offense. Brockbank simply took him into custody as punishment for refusing to comply with his arbitrary commands. In doing so, Brockbank himself committed a serious crime – an “Illegal arrest or seizure” as defined by Idaho State Code section 18-703.
If the Meridian PD were led by people burdened with so much as a particle of honesty, the department would have dropped the charge, as Townsend demanded. Instead, as prosecutor Abbey Germaine acknowledged in court, Chief Jeff Lavey chose to escalate the retaliatory campaign against Townsend by filing an equally spurious felony charge against him, one that carries a five year prison sentence and a $50,000 fine.
Those responsible for filing that charge know – or in any case have no excuse not to know – that nothing Townsend did or said comes within a parsec of satisfying the elements of the offense as defined by the Idaho Criminal Jury Instructions -- every one of which must be “proven beyond a reasonable doubt” in order for a guilty verdict to be achieved.
But the objective is not to protect a victim, or to prove a criminal offense. It is to continue the perverse exercise in armed pedagogy begun by Corporal Brockbank, who wanted to teach an uppity Mundane his “proper” place.
I am deeply grateful for the generous help we have received over the past week. I have tried to thank each of you personally, and will do my best to address any oversights. On behalf of my family, thank you once again.
Dum spiro, pugno!