State v. Springer-Ertl

SABERS, Justice

(dissenting).

[¶ 37.] I disagree with the majority opinion’s conclusion that the trial court or this court should write a correct First Amendment jury instruction for Debra.

[¶ 38.] I agree that the real question here is whether the defendant placed her posters in Martin, South Dakota to “target prospective jurors particularly, with the specific intent to influence their verdict.” Because that is the real question, the First Amendment is not an issue. •

[¶ 39.] Debra was charged with the crime of attempting to influence jurors under SDCL 22-11-16, which provides:

Any person who attempts to influence a juror, or any person summoned or drawn as a juror, or chosen an arbitrator or appointed a referee, in respect to his verdict or decision in any cause or matter pending, or about to be brought before him:
(1) By means of any communication, oral or written, had with him, except in the,regular course of proceedings upon the trial of the cause;
(2) By means of any book, paper or instrument exhibited otherwise than in the regular course of proceedings upon the trial of the cause; or
(3) By publishing any statement, argument or observation relating to the cause;
is guilty of a Class 6 felony.

[¶ 40.] Essential to imposing criminal penalties under SDCL 22-11-16 is a finding that Debra had the criminal intent to influence potential jurors. The statute only prohibits speech and conduct that is intended to influence a juror, including “any person summoned or draum as a juror” in his or her capacity as a juror in a particular case. The conduct here, the deliberate and calculated displaying of posters in a small town where her son’s trial was to commence and where the jury was to be selected from, is within the core of the conduct prohibited by SDCL 22-11-16. Whether the content of the posters was admissible or inadmissible is of little relevance because the statute prohibits the intent of using any information in an effort to influence jurors. This content-neutral statute is narrowly tailored to prevent criminál behavior and is unrelated to the suppression of free expression. It is also irrelevant that “Debra did not personally solicit any juror whose name had been drawn.” Again, it is the intent and the acting on that intent that is evaluated; that is, whether Debra had the criminal *779intent to influence jurors when she distributed her posters.6

[¶ 41.] The majority opinion concludes, in section C, that “the State imposes a prohibition on [an] individual that it is unprepared to impose on the press.” I disagree. Debra’s question, “if the paper can write that stuff, why can’t I[?],” can be answered as simply as it is asked: there is simply no evidence that the newspaper reporters or publishers possessed “the requisite intent to influence jurors’ actions as jurors in particular eases.” Turney v. State, 936 P.2d 533, 544 (Alaska 1997). See also Rapp v. Disciplinary Bd., 916 F.Supp. 1525, 1535 (D.Haw.1996) (stating that the “petitioners’ asserted reasons for the interviews, ‘while not without first amendment significance, [were] not “paramount” like the public’s right to receive information necessary for informed self-government.’ ”). Furthermore, newspaper editorials criticizing judicial proceedings are protected by the First Amendment. See Pennekamp v. State of Florida, 328 U.S. 331, 346-50, 66 S.Ct. 1029, 1037-39, 90 L.Ed. 1295 (1946); Bridges v. State of California, 314 U.S. 252, 268-78, 62 S.Ct. 190,196-201, 86 L.Ed. 192 (1941). In fact, the United States Supreme Court held that such commentary is punishable only if the risk of an unfair administration of justice is “ ‘extremely serious and the degree of imminence [is] extremely high.’ ” Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 845, 98 S.Ct. 1535, 1544, 56 L.Ed.2d 1, 14 (1978) (quoting Bridges, 314 U.S. at 263, 62 S.Ct. at 194).

[¶ 42.] Clearly, communications directed to jurors differ from communications directed to the general public.7 Here, we are not determining First Amendment rights of the media. Instead, we are determining whether Debra was entitled to jury instructions on the First Amendment. She was not so entitled because “[t]he [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out h[er] illegal purpose.” United States v. Barnett, 667 F.2d 835, 842 (9th Cir.1982). Therefore, Debra’s comparison of her conduct to a newspaper’s ability to publish information for the general public is essentially a comparison of broccoli, not apples, to oranges.

[¶43.] Debra chose to distribute her posters in the town of Martin, population 1,151, which is located within the county of Bennett, population 3,206. South Dakota Legislative Manual 1999-2000 613, 626. She did not choose to distribute her posters in Stanley County, where the murder occurred. Nor did she choose to distribute them in Marshall, Minnesota, where she resided. It was no accident that Martin was the only town in which Debra distributed her posters. To the contrary, it was a strategic, deliberate and calculated decision made for the obvious criminal intent to influence any of the 150 potential jurors who were summoned to appear for jury duty two weeks prior to the scheduled date for her son’s trial. The jury found, beyond a reasonable doubt, that the State proved the elements of the crime and that Debra was guilty of attempting to influence jurors.

[¶ 44.] The majority opinion meticulously attempts to establish that the First Amendment applies in this case. However, freedom of speech is not an absolute right. See Justice Konenkamp’s writing for a unanimous court in State v. Hauge, *7801996 SD 48, ¶ 10, 547 N.W.2d 173, 176 (stating that defendant’s conduct of violating a protection order by sending a letter does not fall within the “ambit of the rights of free speech protected by the First Amendment”). See also People v. Borrelli 77 Cal.App.4th 703, 91 Cal.Rptr.2d 851, 860 (2000) (holding that a stalking statute does not infringe on free speech rights because it “does not regulate the content of speech [as much] as the manner in which the communication is made.” (emphasis in original)).

[¶ 45.] The United States Supreme Court has stated: “[a] State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491 (1965). In Cox, the Court examined'a statute which prohibited picketing near a courthouse. Id. at 560, 85 S.Ct, at 478-79, 13 L.Ed.2d at 489-90. The Court held that the statute was constitutional. Id. at 564, 85 S.Ct. at 481,13 L.Ed.2d at 492. In so finding, the Court stated:

A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State’s interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute - picketing and parading - is subject to regulation even though intertwined with expression and association.

Id. at 562-63, 85 S.Ct. at 480, 13 L.Ed.2d at 491 (emphasis added). The Court further stated: “[i]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Id. at 563, 85 S.Ct. at 480, 13 L.Ed.2d at 491-92 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834, 843-4 (1949)).

[¶ 46.] The purpose of SDCL 22-11-16 is to ensure the administration of justice by prohibiting the intent to improperly influence potential jurors. It prohibits conduct that attempts to. influence jurors. The statute is narrowly tailored. Only communications intended to affect the manner that the jury decides a specific case are prohibited. Certainly, the State has a legitimate interest in protecting and ensuring the execution of a fair and impartial judicial system. With the passage of SDCL 22-11-16, our legislature intended to prohibit any unreasonable conduct which, by its very nature, erodes the impartiality of jurors.8 Undoubtedly, it is the type of regulation envisioned by the Court in Cox as constitutional.

[¶ 47.] In Turney v. State, 936 P.2d 533, 541 (Alaska 1997),- Frank Turney, á leaf-leter for the Fully Informed Jury Association, was charged with jury tampering under AS 11.56.590.9 He challenged the *781constitutionality of the statute as a violation of his First Amendment rights. In its analysis, the Alaska Supreme Court stated:

Speech aimed at influencing the juror’s conduct as a juror, i.e, the juror’s execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected. Justice Frankfurter noted that
In securing freedom of speech, the Constitution -is hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote.

Id. (quoting Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029,1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring) (emphasis added)). The court went on to conclude that the statute was indeed constitutional and determined:

In our view, the statute is not so imprecise that persons wishing to engage in constitutionally protected speech would be discouraged from doing so. The statute describes the prohibited conduct and required intent. It distinguishes between speech directed at the jurors who will decide a particular case and speech aimed at the general public.... Because the conduct must be accompanied by the intent specified by the statute, there is a correlation between the words of the statute and the constitutionally unprotected conduct.

Id. at 542-43 (emphasis added). See also United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (involving an unsuccessful First Amendment challenge by defendant convicted of burning his selective service registration certificate publicly to influence others to adopt his ;anti-war beliefs).

[¶ 48.] In aligning with the Turney court’s rationale, I conclude that the First Amendment does not grant immunity to Debra. To the contrary, “[c]onduet of this nature is obviously not protected by the guarantees of free speech provided for in the First Amendment.” State v. Crelly, 313 N.W.2d 455, 457 (S.D.1981) (holding that an unlawful obscene telephone call statute was constitutional); see also Hauge, 1996 SD 48, ¶.10, 547 N.W.2d at 176 (stating that defendant’s conduct of violating a protection order by sending a letter does not fall within the “ambit of the rights - of free speech protected by the First Amendment”). Debra went beyond her right of freedom of expression in a public forum and intruded upon the impartiality guaranteed within the justice system. She can not now assert that the First Amendment shields her from responsibility.10

[¶ 49.] The majority opinion recognizes that Debra’s proposed instruction is “obviously inadequate,” but excuses the “inadequacy” by stating “we have never before construed our jury tampering statute, much less given it a narrowing interpretation. ...” Such an excuse is nonsense. The First Amendment is not a new concept and Debra certainly could have proposed an instruction that adequately reflected the law. Instead, she proposed:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. *782Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

This instruction is somewhat irrelevant to Debra’s case, confusing to the jury, improper, self-serving and does not adequately reflect the law concerning the First Amendment. Clearly, it was not an abuse of discretion for the trial court to refuse it, even if she later changed her mind; thus, no error occurred at trial to justify the granting of the motion for a new trial.

[¶ 50.] I vote to reverse and remand to the trial court with directions to reinstate the jury’s verdict, enter a judgment of conviction and proceed to sentencing. Anything more favorable to Debra is judicial legislation at it’s worst.11

[¶ 51.] GILBERTSON, Justice, joins this dissent.

. The majority opinion states "[hiere, the only act the State seeks to punish is the act of communication.” This statement is dead wrong as the statute clearly prohibits the intent of using any information to attempt to influence jurors.

. The majority opinions cites to Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) as support. However, the facts in Gentile are substantially different. In Gentile, the Court was dealing with an attorney who made statements to the media about a pending trial. Here, we are dealing with communications made by a defendant's mother with intent to influence prospective jurors in the town where her son’s trial was to commence.

. In evaluating legislative intent, the United States Supreme Court has stated:

It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.

Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989) (citations omitted). If a "reasonable alternative interpretation” exists which "poses no constitutional question,” that interpretation should be used.

In weighing this statute against the First Amendment, a "reasonable alternative interpretation” is that this statute prohibits the intent to influence potential jurors and not the mere expression of opinion.

. This statute provides:

(a) A person commits the crime of jury tampering if the person directly or indirectly communicates with a juror other than as permitted by the rules governing the official proceeding with intent to
(1) influence the juror's vote, opinion, decision, or other action as a juror; or
(2) otherwise affect ,the outcome of the official proceeding. ■
(b) Jury tampering is a class C felony.

. The majority opinion states that Debra had a First Amendment right to display her posters in the stores in Martin: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” (quoting Schenck, 519 U.S. at 358, 117 S.Ct. at 867, 137 L.Ed.2d at 21) (citations omitted).

Leafletting is admittedly considered to be speech, but the application to Debra’s case is erroneous because she intended ,to use her posters as a mechanism to influence potential jurors, much like Turney did in Turney v. State, supra. The First Amendment is not a defense available to Debra under these circumstances.

. I respectfully submit that the majority opinion, although intellectually elegant in appearance and beautifully written, shies away from a holding of unconstitutionality. I say the statute is constitutional and we should not impose an obligation on trial courts or ourselves under the pretense that the statute is unconstitutional. If the majority opinion can establish unconstitutionality, and it can not, let it do so expressly.