THE MAGAZINE

Can I Get a Witness?

By Laura Spadanuta

Threat Mitigation

Ironically, by bringing attention to snitching, the Stop-Snitchin’ movement may have unintentionally helped motivate the establishment to take action against it. Maryland finally passed a law against witness intimidation in 2005 (after several failed legislative attempts) following Jessamy’s distribution of the DVDs. Other states have passed similar laws.

Numerous states have been increasing witness-intimidation penalties as well. New Jersey recently passed a witness-intimidation and witness-tampering law that toughened penalties on those found guilty of such crimes.

“The bill will not boost the confidence of witnesses overnight,” says the bill’s co-sponsor, state Senator Shirley K. Turner (D-Mercer). “But coming down hard on criminals coupled with supportive strategies that are currently available for witnesses will gradually lessen and eventually end threats and attacks on witnesses,” she says.

At least 19 states had such laws in place as of 2006 (the most recent figure available), according to the National Conference of State Legislatures. The laws vary in their specifics.

California’s law for witness intimidation has “some real teeth,” says Moses. For example, if a person is found to be intimidating a witness for the benefit of a gang, the person can receive a life sentence.

Although witness intimidation is often difficult to prove, both Moses and Anderson say they prosecute witness intimidation frequently. And Moses once had a witness intimidation case that was easier to prove than the murder case the defendant was initially on trial for, because the defendant’s intimidation call to a witness was caught on tape.  Moses chose to try the intimidation case first.

Hearsay exception. One controversial aspect of Maryland’s witness intimidation law is the so-called “hearsay” exception. Hearsay is a statement made by a witness outside of court that under certain circumstances is admissible as evidence in a trial. The allowance of such statements could help in cases where intimidation renders the witness too frightened to show up at trial. In those cases, the witness’s earlier statement could be used as evidence.

Opponents of this tactic have argued that the hearsay exception violates the constitutional right of a defendant to confront his accuser. In response to those objections, the bill was amended to require a higher burden of proof of intimidation when determining whether hearsay statements are admissible.

Defense attorneys, such as Timothy Mitchell of Mitchell & Saltz LLP in Greenbelt, Maryland, a former president of the Maryland Criminal Defense Attorneys Association, hailed the change, while some prosecutors say it rendered the provision useless. Mitchell says he has not yet seen the exception used in court.

Identity protection. One way to deter intimidation is to keep the witness list from being made public. Law enforcement tries to do that by, for example, redacting personal witness information from police reports and as far into the prosecution process as possible, says Moses.

“We’ll do everything we can to delay discovery until the last possible moment,” agrees Anderson.

California’s “discovery rules make it a crime for defense attorneys or defense investigators to share [witness] information with defendants,” he notes. To reinforce that, he’ll often get a special order that states the defense attorney cannot disclose witness information to the defendant. “But,” says Anderson, “as we all know, mistakes sometimes happen, and reports are given to defendants who will look at them. And…to avoid even the mistake of having reports or information handed over, that’s why we redact the stuff.”

A Massachusetts provision allows prosecutors to withhold grand jury testimony transcripts in certain cases. And New Jersey Sen. Turner is sponsoring a bill that would bar the disclosure of personally identifying information (except for names) of grand jury witnesses. Defense attorneys, not surprisingly, have objected to such provisions.

Witness protection. The federal witness assistance program run by the FBI is well funded. It sometimes provides for an individual and his or her family to get relocated with new identities in exchange for testifying in a trial. For crimes that are tried in state and local jurisdictions, these extensive resources are not available.

Given the different nature of what can be done at the state and local level, Jeanne Smith, director of the Division of Criminal Justice at the Colorado Department of Public Safety, favors the term “witness assistance.” Smith says the term “witness protection” gives “people a false sense of what we are really trying to do for most of these witnesses, which is more akin to providing emergency assistance on a short-term basis.”

She explains that the state is saying to a witness: “We may help you and your family move, or we will help you in some other smaller ways, but at some point in time in the very near future, you will be on your own again, and you have to find a job, and you are responsible for your rent and your housing, just like this was your life.”

She goes on to note, “And we don’t expect people to get new identities. We just expect them to cut off their ties to the dangerous situation.”

Clearly, Smith says, “it’s a very different focus than the commonly understood idea around witness protection in the federal system.”

Smith is still trying to work out how to better protect witnesses throughout the whole process. While the state requires that victim impact statements be sent to crime victims so that they know who they can contact if they’re threatened, Smith says, “We are working toward how we do outreach to witnesses who are not the named victim in the case but [who] may be just as much in danger. And we haven’t quite solved that problem yet.”

Witness intimidation often “peters out” after the trial is over, especially when there is a conviction, says Moses, so assistance often only lasts through the trial. However, he says, there have been exceptions where witnesses have been “threatened and harassed, beaten, or killed after the trial is over and sometimes long after the trial is over.”

States are responsible for implementation and funding of their own witness protection plans. Some states have been upgrading their programs in recent years.

In 2006, Massachusetts created a statewide program with an annual budget of $750,000. Also in 2006, Colorado legislators made changes to their program in response to increased witness threats and the murders of two gang-related witnesses. Those changes included “a requirement for law enforcement and prosecutors to offer annual training in the availability and use of the witness protection fund and a requirement that an assessment tool be developed to determine whether a witness was in danger,” says Smith.

Some of the more comprehensive witness protection programs, such as California’s, provide a range of services that include armed protection by police. But Grascia points out that, “You can’t pay a police officer to sit in front of someone’s house for the rest of his life to guard that family…. Some of the gangs are sophisticated enough to realize, hey, wait three months, wait six months, law enforcement will have to pull this guy back.”

In some of the more extreme cases, relocation is provided. Relocation is an expensive proposition. However, in gang situations, witnesses don’t necessarily have to be relocated very far.

Sometimes it’s enough to simply move a person out of their neighborhood, says Moses. For example, in Los Angeles, “the gang universe is this relatively small patch of turf,” he says. “So if you take somebody out of that neighborhood, and you move them even two or three miles away, and put them up in an apartment, they may as well be on the other side of the country.”

The toughest relocation, says Moses, is when the person is a homeowner. According to Anderson’s Bulletin, “it is nearly impossible to relocate witnesses who own homes,” due to the lack of resources to sell the old home and assist in the purchase of a new one. The current real estate downturn makes the situation worse.

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