If a voice mail falls in the forest, does it make a sound?

The defendant was charged with three counts of interfering with a judicial proceeding. He allegedly violated a protective order three times.

Frank J. Conti is the elected justice of the peace for the Dreamy Draw Justice Court, which serves northeast Phoenix and Paradise Valley.

Frank J. Conti is the elected justice of the peace for the Dreamy Draw Justice Court, which serves northeast Phoenix and Paradise Valley.

An order of protection had been issued by the superior court in favor of defendant’s wife. It forbade the defendant from contacting her in any way but electronically.  Any such communication was only to be regarding their children.

As the expiration of the order drew near, the defendant called his wife three times and left a voice message each time. None of these messages dealt with the children; in fact, the defendant’s calls were basically a lobbying effort to convince his wife not to renew the order. The tone of the messages was not entirely pleasant.

At trial his wife testified that three messages were left on two separate days, about a week prior to the order’s expiration.  Her cell phone had stopped working around that time, and it took two weeks for her provider to send her a new one.

Two police detectives testified that they retrieved the messages, noted the dates and times, and recorded them for posterity.  The voice mails were played in the courtroom for the record.

The defendant’s lawyer argued several points.  He quizzed the detectives about the reliability of the electronic date-stamping of phone messages.  He cross-examined them sharply about whether it was a new phone the victim had received, or whether it was her old phone that had been repaired and sent back to her.

He grilled them about their identification of the voice on the messages, despite the fact that the victim was present and could easily do so herself—and despite the message content making it painfully obvious that it was her estranged husband doing the talking.

But the main defense offered was that no violations of the order of protection had occurred because the voice mails were not received by the victim until after the expiration of the order.  Reference was repeatedly made to the age-old riddle of whether a tree falling in the forest makes a sound if no one is there to hear it.

In his summation, defense counsel proffered the notion that if, for example, the victim had lost her cell phone in the ocean, no criminal charges would ever have been brought against his client.  The deputy county attorney reminded her counterpart that one can easily retrieve their voice mails without having actual physical custody of their cell phone.

In pronouncing the defendant guilty of all three counts of violating the order of protection, the court made reference to an analogy of its own.  What if the order had prohibited the defendant from writing the victim, and, the day after the order expired, she had gone to her mailbox and found three letters from the defendant, all postmarked three days earlier?

Would that not be considered prohibited contact while the order was in effect?

Editor’s note: Frank J. Conti is the elected justice of the peace for the Dreamy Draw Justice Court, which serves northeast Phoenix and Paradise Valley.  Judge Conti can be reached at frank@contiforjustice.com.

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