SALEM — An Appeals Court panel on Thursday overturned part of an Athol man’s conviction for witness intimidation, after finding that a court clerk’s office employee who answered his angry call about a judge five years ago was not the target of his ire.
And while it did not reach the issue of whether that employee, a case specialist, could be considered a “clerk” under the state’s witness intimidation statute, the justices did suggest that lawmakers consider updating it to specify which courthouse jobs are covered by the law.
In its decision, the panel reversed a jury’s guilty finding on the witness intimidation count related to the case specialist. It let stand the count related to the judge.
Jeffrey Scott Wheeler, now 60, was arrested following an eight-hour standoff at his Athol home back in July 2018, hours after he called the clerk’s office at Newburyport District Court.
He told the case specialist who answered the phone that he wanted to relay a message to Judge Mary McCabe that he was going to “go rogue,” that it was “going to be on TV” and that “she won’t be a judge,” according to testimony,
Wheeler was still apparently upset over a decision by McCabe to extend a harassment protection order against him nearly a year earlier.
In May 2021, a Salem District Court jury convicted him of two counts of witness intimidation, one count for the case specialist and one count for the judge; it found him not guilty of a charge that he threatened the judge.
He was sentenced to serve a year in jail.
In his appeal, Wheeler and his current lawyer, Penelope A. Kathiwala, argued that under the state’s witness intimidation statute, only those court jobs that are enumerated, are covered by the law — and that a “case specialist” is not among them.
And even if it was, or if the court construed it to fall under the umbrella of “clerk,” Kathiwala argued, neither the employee or the judge were the targets of any intimidation or harassment. She argued that Wheeler was only trying to alert the judge to expect that she would be served with a complaint over her handling of the harassment order.
“Here .. even if the Commonwealth could prove that she was a ‘clerk,’ they produced no evidence that she was threatened or intimidated in any sense,” Kathiwala argued.
The Essex District Attorney’s office argued in response that it was entirely reasonable for both the employee and the judge to feel intimidated by the call, and that it was also reasonable for the trial judge to conclude that the employee, who worked in the clerk’s office, fell under the term “clerk.”
“Here, the defendant had been involved in a civil restraining order nearly a year prior and was still fuming over its issuance,” assistant district attorney Marina Moriarty wrote. “Therefore, it was reasonable to conclude that the call and the information it conveyed was meant to be hostile.
But in its eight-page decision Thursday, the Appeals Court partly disagreed with that.
“Even assuming, without deciding, that the case specialist was a ‘clerk’ for the purposes of this appeal, the Commonwealth failed to introduce any evidence that the defendant’s statements to the case specialist were made with the intent to retaliate against her for her ‘participation in’ any proceeding involving the defendant,” Justice Andrew D’Angelo wrote. “In fact, there was no evidence that the case specialist knew any information about the harassment prevention orders at all.”
The justices sidestepped the question of whether it considers the position to fall under the umbrella of “clerk,” but in a footnote pointed out that the statute is intended “to protect a broad class of persons involved in law enforcement and the judicial process, and that employees within the clerk’s office would logically be anticipated to be within that scope,” but that the Legislature might want to consider adding more specific language to the law to reflect that.
As it reads now, the witness intimidation statute covers judges, jurors and grand jurors, clerks, attorneys, victim witness advocates, court, police and corrections officers, federal agents, investigators, probation and parole officers, and court interpreters and reporters (the stenographers who record and transcribe proceedings).
“This office takes any threats to those engaged in law enforcement and the judicial process very seriously and we will take appropriate action when warranted,” District Attorney Paul Tucker said in response to the decision.
An email to Wheeler’s attorney was not immediately returned Thursday.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at firstname.lastname@example.org or on Twitter at @SNJulieManganis