The New Jersey Supreme Court continued in relevant part: It is therefore unsurprising that during deliberations, the jury requested a typed copy of the letter to review and then, as an alternative, heard a readback of the letter being read out loud by a detective.
Although the State now insists that defendant was prosecuted solely based on the time, place, and manner of his speech (sending a letter, from jail, to A.Z.’s home), the record shows otherwise. It reflects a consistent strategy by the prosecution to refer the jury to the text of the letter itself. Because the State urged the jury to “examine the content of the letter . . . to determine whether a violation” of the witness tampering statute had occurred, defendant’s prosecution was content based. See McCullen, 573 U.S. at 479. Defendant’s conviction would nonetheless have been unproblematic if the jury had been required to find that his speech fell into a recognized category of speech unprotected by the First Amendment.
Defendant contends that the relevant exception is true threats. According to defendant, “Counterman controls the outcome here,” and under the First Amendment the State was thus required to prove “at a minimum, that defendant was reckless as to the threatening nature of his speech.” But defendant was not prosecuted for any true threat of violence. His letter does not contain any threat of violence against A.Z. And he was prosecuted for third-degree witness tampering, which specifically excludes the use of “force or threat of force.” N.J.S.A. 2C:28-5(a). Counterman is thus not relevant to defendant’s conviction.
The State maintains that the relevant exception is speech integral to criminal conduct. We agree that, had the jury been required to find that the contents of defendant’s letter were speech integral to criminal conduct, the letter would have been unprotected by the First Amendment and there would be no issue with defendant’s conviction. However, because the jury was not required to make such a finding, defendant’s witness tampering conviction must be vacated and remanded for a new trial.
Trial prosecutors are often incentivized to commit reversible error in the closing arguments. If the related conviction is reversed because of their error, they get a chance at a retrial. At the retrial they will have the advantage of knowing the defense strategy from the first trial.