Vulgar and rude? Yes. Criminal harassment? No, SJC says

The letters to the Rehoboth selectman were full of obscenities and insults.

“Michael Costello - the biggest [expletive] loser I have ever met ... You are not even close to being capable in any way to be a selectman, never mind a floor sweeper.”

The scribe was no easier on Costello’s wife, Susan.

“How stupid can you be to support such a bum,” wrote Harvey J. Bigelow, a Rehoboth resident who in 2011 sent five letters over two-months to the couple’s home.

Vile as the letters were, the Massachusetts Supreme Judicial Court ruled Tuesday that they did not constitute criminal harassment, at least as they pertained to Michael Costello, who was elected to the board of selectmen in April, 2011. The SJC reversed the conviction and ordered the charge of criminal harassment of Costello dismissed. However, in a split decision, the court left the door open for prosecutors to retry Bigelow for criminal harassment against Susan Costello.

In explaining the reversal, the court reasoned: “Because these letters were directed at an elected political official and primarily discuss issues of public concern ... the letters fall within the category of constitutionally protected political speech at the core of the First Amendment,” wrote Justice Margot Botsford. “Michael was an elected town official, and as Michael himself testified, receiving mail from disgruntled constituents is usual for a politician.”

The letters, typed and signed only by “a concerned citizen,” began arriving a month after Costello’s election.

Bigelow, an auto body worker in his 60s at the time, denied writing the letters. But Bristol prosecutors said they connected him to them after investigators scouring the auto body shop found a document at the copy machine that was identical to the fifth letter sent to the Costellos, according to an Associated Press report about the case.

During the 2013 trial against Bigelow, Michael Costello testified he was particularly disturbed by the letter’s effects on his wife. Susan Costello testified that she was hysterical after reading the letters, unable to sleep and constantly crying.

“She was ‘ready to move’ by the time she received the fifth letter because she was ‘scared out of her mind,’ ” the court wrote, quoting testimony from the case.

A jury convicted Bigelow of criminal harassment against the husband and wife. He was sentenced to one year of probation, told to stay away from the Costellos, and ordered to write a letter of apology to the couple that would be published in three local newspapers. Bigelow appealed the conviction, saying the letters at the heart of the case were protected speech.

The court agreed that in addition to being protected speech, the letters to Michael Costello also did not “seriously alarm” the selectman. To prove criminal harassment, prosecutors must show a victim was “seriously alarmed” by the defendant’s actions.

But in a 4-3 decision, the court vacated the conviction of criminal harassment of Susan Costello and remanded the case for a new trial.

The court pointed out that though Bigelow made no physical threats in the three letters he wrote Susan Costello, she did not hold political office, nor had she run for election. The letters suggested she move out of town, protect herself by getting plastic surgery, and stay away from town meetings. The anonymity made it impossible for Susan Costello to guess the writer’s intent, making the letters feel even more threatening, the court ruled.

“These letters contained vulgar and hateful insults and comments that in their choice of language and their repetitive nature were disturbing, reflecting what could be found to be an obsessive interest in private matters relating to Susan,” Botsford wrote. Chief Justice Ralph D. Gants and Justices Robert J. Cordy and Barbara A. Lenk joined the majority.

The court vacated the conviction because the judge’s instructions to the jury on the charge related to Susan Costello were not clear enough. But the court left it up to Bristol prosecutors to decide whether a judge or another jury should determine if Bigelow’s letters qualified as a “true threat” and were therefore an act of criminal harassment, rather than protected speech.

In the dissenting opinion, Justice Fernande R. V. Duffly wrote that the court had defined ‘true threat’ too broadly by deciding that Susan Costello’s imagined intentions of the writer were enough to cause her fear of physical harm.

“This cannot be what the framers intended in drafting the First Amendment,” Duffly wrote.

Gregg Miliote, spokesman for District Attorney Thomas M. Quinn, said prosecutors have not decided yet whether to pursue another trial against Bigelow.

“We’re going to take some time to digest it, review the facts and then make a decision,” Miliote said.

Bigelow, now 71, said the charges were “wrong from the start.”

“It’s good news,” Bigelow said.

He declined to comment further citing the possibility of another trial.

His lawyer, Diana Cowhey McDermott, did not return a message left at her Falmouth office Tuesday afternoon.