Justice in Jeopardy:
Victim and Witness
Intimidation in Maryland
Amy Anderson
Salisbury University
Elizabeth Krimmel
Johns Hopkins University
Yolanda Santirosa
Bowie State University
Lauren Trotta
University of Maryland Baltimore
County
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Police officers and prosecutors have become increasingly frustrated by their
inability to successfully investigate and prosecute criminal cases when key witnesses
refuse to provide critical evidence or to testify because for fear of retaliation by the
defendant or his family and friends.1
Witness intimidation has become so pervasive that it is ruining the public's faith
in the criminal justice system to protect them," said Judge John M. Glynn of Baltimore
City Circuit Court. "We are not much better off than the legal system in Mexico or
Colombia or some other sad places.2
What Is Witness Intimidation?
A witness is someone who has first-hand knowledge about a crime or dramatic
event and can help certify important considerations to the crime or event. A witness who
has seen the event first-hand is known as an eyewitness.3 Witness intimidation involves
witnesses crucial to court proceedings being threatened in order to pressure or extort
them not to testify. The refusal of key witnesses to testify commonly renders a case with
inadequate physical evidence void in a court of law.4
Witness intimidation includes threats against witness and victims of crimes and
strikes at the root of the criminal justice system. Witness intimidation denies critical
1
Finn, Peter, and Healy, Kerry Murphy. ―Preventing Gang- and Drug-Related Witness Intimidation‖ in
National Institute of Justice: Issues and Practices, November 1996,
http://www.ncjrs.org/pdffiles/163067.pdf (accessed on August 10, 2005)
2
New York Times, ―Guns and Jeers Used to Buy Silence‖, January 15, 2005,
http://www.gainesville.com/apps/pbcs.dll/article?AID=/20050116/ZNYT02/501160312/-1/wire02
(accessed on August 10, 2005).
3
Wikipedia, the Free Encyclopedia, s.v. ―Witness‖, http://en.wikipedia.org/wiki/Witness (accessed on
August 10, 2005).
4
Wikipedia, the Free Encyclopedia, s.v. ―Witness Intimidation‖,
http://en.wikipedia.org/wiki/Witness_intimidation (accessed on August 10, 2005)
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evidence to police investigators and prosecutors thus undermining the confidence of
whole communities in the government‘s ability to protect and represent them.
Intimidation is known to occur in areas more typically associated with high rates
of crime, such as inner cities, high density population areas and areas where co-operation
between the community and police has traditionally been poor. Offenders can create a
general atmosphere of fear and non-cooperation with the criminal justice system so that
while victims and witnesses of crime in the community may not be threatened directly,
their fear of reprisals is such that they are discouraged from reporting crime and/or from
giving evidence.5
The Nature of Victim/Witness Intimidation
Gang and drug-related intimidation may be case-specific or community wide.
The widespread intimidation of whole neighborhoods can be as detrimental to witness
cooperation as an explicit threat made against an individual. Each case-specific act of
violence against victims or witnesses promotes the community-wide perception that any
cooperation with the criminal justice system is dangerous.
Factors that contribute to the reluctance of witnesses to step forward include:
fear, strong community ties, or a deep-seated distrust of law enforcement. Community
members may also consider gang and drug crimes as outside the scope of their concern or
responsibility. Additionally, factors that increase the likelihood of intimidation include
5
Home Office Circular 12/01, May 15, 2001, http://www.homeoffice.gov.uk/docs/hoc0112.pdf (accessed
on August 10, 2005).
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the violent nature of the initial crime, a previous personal connection to the defendant,
geographic proximity to the defendant, and membership in a culturally vulnerable group.6
The need to provide for the safety of witnesses results from the constitutional
protections afforded criminal defendants. The Sixth Amendment of the U.S. Constitution
provides, in part, that "in all criminal proceedings, the accused shall enjoy the right to
confront the witness against him." Such protections were extended by the U.S. Supreme
Court to defendants in state proceedings through the ―Due Process Clause‖ of the
Fourteenth Amendment.
Some states require prosecutors to identify everyone "known by the government
[who has] knowledge of the relevant facts, while other states limit such disclosure only to
persons who will testify in trial or pretrial proceedings." Consequently, to protect
witnesses pre and post trial, and to preserve the integrity and effectiveness of the criminal
justice system, witnesses facing a threat to their personal safety are oftentimes either
incarcerated or placed under government protection.7
In most jurisdictions the problem of witness intimidation has begun to have a
major impact on the investigation and prosecution of crime, and there appear to be few
comprehensive, coordinated programs that address the issue. In Maryland, prosecutors,
police officers, judges, and victim advocates agree that witness intimidation is
widespread, increasing, and has serious impact on the prosecution of crime. State, county,
6
―Tackling Witness Intimidation--an Outline Strategy,‖ The Criminal Justice System of England and
Wales, http://www.cjsonline.org.uk/library/pdf/witness_intimidation_strategy.pdf (accessed on August 10,
2005).
7
Kash, Douglas A. ―Hiding in plain site: a Peek into the Witness Security Program‖, The FBI Law
Enforcement Bulletin, May 2004, http://www.findarticles.com/p/articles/mi_m2194/is_5_73/ai_n7068945
(accessed on August 10, 2005)
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and city jurisdictions must begin to plan comprehensive and formal programs in order to
successfully combat this issue.8
Types of Intimidation
There exist two principal types of witness intimidation:
Overt intimidation occurs when someone does something explicitly to intimidate
a witness into withholding, changing, or falsifying testimony. Most overt
intimidation occurs only when there is a previous connection between the
defendant and the victim, and when they live relatively close to each other.
Actual examples of overt intimidation include:
The sister of a defendant slaps a witness outside the courtroom and says
she will kill her if she testifies.
Two gang associates of a defendant drive by a witness‘s apartment, slash
his car tires, and smash the windshield.
An incarcerated defendant puts the word out on the street through fellow
gang members that a murder witness will be killed if he cooperates with
the prosecution.
Implicit intimidation involves a situation in which there is a real but unexpressed
(or indirectly expressed) threat of harm to anyone who may testify. Implicit
intimidation is often community-wide in nature and is characterized by an
atmosphere of fear and non-cooperation generated by a history of violent
retaliation against cooperating witnesses or by a cultural mistrust of the criminal
justice system.9 Actual examples of implicit intimidation that have prevented
witnesses from coming forward include:
8
Kash.
9
Finn and Healy.
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A drug-related shooting occurs at a softball game; three players are killed
in full view of spectators, but no cooperative witnesses can be found.
Two individuals suspected of stealing money from the homes of
Vietnamese immigrants are arrested, but the victims all claim they did not
see the faces of the perpetrators.
Oftentimes witnesses feel intimidated even when there is no actual danger. Overt
intimidation, implicit intimidation, and misperceived intimidation may operate separately
or in parallel. Furthermore, each instance of actual intimidation or violence against
witnesses promotes the community-wide perception that any cooperation with the
criminal justice system is dangerous.
Overt intimidation, because it may be publicized widely in the press or by word of
mouth, may contribute to an exaggerated perception of the risk of injury. Community-
wide and misperceived intimidation can be as harmful to witness cooperation as explicit
threats. A public perception that the criminal justice system cannot protect the citizens of
a community is as effective in destroying the ability of police investigators and
prosecutors to do their jobs as any specific threat. As a result, prosecutors, police
administrators, and victim/witness program administrators need to prevent all types of
intimidation.
How Serious Is Witness Intimidation?
No one knows the precise extent of witness intimidation because only limited
scientific research has been conducted on the problem.10 However, most of the
10
Connick, E., and R.C. Davis, ―Examining the Problem of Witness Intimidation,‖
Judicature 66 (1983): 439–447; and Davis, R.C., ―Victim/Witness Intimidation in the Bronx Courts: How
Common Is It, and What Are Its Consequences?‖ unpublished monograph, New York: Victim Services
Agency, 1990.
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prosecutors, police officers, judges, and victim advocates agreed that witness intimidation
is widespread, that it is increasing, and that it seriously affects the prosecution of violent
crimes.
We had the opportunity to speak with Sandy Bromley, Esquire/Staff Attorney,
and Tracy Delaney, from the Maryland Crime Victims' Resource Center, Inc. The
following is an excerpt taken from that interview:
Question: What are some of the major obstacles in protecting a witness without violating the
defendant's rights?
Answer: Our entire system of justice is premised on the notion that a defendant is innocent until
proven guilty. Furthermore, the U.S. Constitution, as well as state constitutions, provides
enumerated rights for defendants such as the right to legal counsel, the right to a fair trial, and the
right to confront the witnesses against them. Some people incorrectly believe that we are trying to
interfere with a defendant‘s constitutional rights. This is not correct, as attorneys and legal
advocates we are sworn to uphold the law, and certainly we agree and respect that defendants have
rights.
Our position is that this is not a zero sum game, meaning if you afford a victim any right then that
somehow detracts from the rights afforded to the defendant. This is incorrect logic. If this logic is
applied to victims who wish to assert their rights, this must also be applied to the State in criminal
cases and the plaintiff in a civil case to say that if you give the State or a plaintiff the right to be
heard in court, to be present at trial and to be represented by legal counsel then you have somehow
detracted from the defendant‘s rights. As you know, the State or plaintiff absolutely have the right
to be present at the trial, represented by legal counsel and informed about the proceeding so the
notion that this violates the defendant‘s rights is absurd. The same logic applies to victims; the
notion that allowing victims to be informed about the proceedings in their case, to be present at the
trial, to be represented by legal counsel and to be heard somehow detracts from the defendant‘s
rights is equally preposterous.
However every day we are told that victims of crimes have no right to be informed about the
proceedings, hearing, motions, etc. That they have no right to be heard through giving a victim
impact statement, and that we as attorneys have no place in the court room to represent the victim
and ensure that their rights are not violated. All of this occurs even thought Article 47 of the
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Maryland Declaration of Rights, as well as several other statutory provisions, require these rights
for victims! Many times the excuse is that to allow these things would somehow violate the
defendant‘s rights.
Question: I understand a watered- down version of Senate Bill 188, the witness protection bill,
passed during the current legislative session. What were portions of the original bill made it into
the final version?
Answer: The original version of Senate Bill 188 prohibited a person from harming, threatening to
harm or soliciting another person from harming or threatening to harm a person or property with
the intent to induce a victim or witness not to testify. It provided the exact prohibitions of
harming, threatening or soliciting another to do so in retaliation against a victim or witness for
giving testimony.
This bill was amended to remove all of the provisions related to prohibiting a person from
harming, threatening to harm or soliciting another person from harming or threatening to harm a
person or property with the intent to induce a victim or witness not to testify or in retaliation for
testifying. It further removed the provisions related to intimidating court officials, jurors, etc.
The original version also prohibited intimidation, influencing, or impeding an officer of the court,
juror, or potential witness and made any of the acts above a felony. The bill as introduced also
contained a hearsay exception to any testimony offered against a party that engaged or acquiesced
in wrongdoing that was intended to and did procure the unavailability of a witness. The
introduced version of the bill allowed the court to determine the admissibility of the statement.
Question: Is witness intimidation a state-wide problem? Or, only in the Baltimore/DC area? Or
only in Baltimore City? Also, does it occur only in capital murder cases, or in other kinds of
cases as well?
Answer: Witness intimidation occurs all over the state of Maryland, as it is not necessarily crime
specific. It may be more prevalent with respect to drug related charges or crimes where there is a
huge penalty at stake (for example, capital murder; felony drug murder, etc.) so perhaps it is
prevalent, or concentrated as the case may be, in high drug traffic areas, i.e. urban areas such as
Baltimore and DC. However, witness intimidation happens quite often in Domestic Violence
cases. Girlfriends/Wives are often intimidated into dropping charges and/or not testifying against
their offenders. This type of intimidation is not often as widely reported as say a gang situation as
there may not be a murder involved, but more threats and manipulation that are a result of the
imbalance of power in the relationship as evidenced by the initial crime.
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Explanations for the Recent Increase in Victim/Witness Intimidation
J. Ramsey Johnson, Assistant U.S. Attorney for the District of Columbia states, ―In my
view the reasons for this dramatic increase in fear and intimidation are many and varied.
The defendant we prosecute for committing violent crime is not only much younger than
in the past, but very often displays several commonly-held attitudes and beliefs,
including:
A profound lack of respect for authority.
The expectation that their own lives will be brief or will be lived out in prison.
A sense of powerlessness and social inadequacy that can lead to the formation of
gangs or neighborhood crews.
The ready availability of very powerful firearms.
A willingness to use those firearms for almost no reason or in retaliation for the
most minimal slight to their extraordinarily fragile egos.
Lastly, and ironically, the increased penalties being imposed on those convicted
of violent crime, which can raise the stakes of a prosecution.‖11
The Most Likely Targets of Intimidation
Anyone is a potential victim of intimidation, however, there exist four factors that
increase the chances that a witness will be intimidated. These include:
The initial crime was violent.
The defendant has a personal connection to the witness.
The defendant lives near the witness.
11
Johnson, J. Ramsey, Assistant U.S. District Attorney for the District of Columbia, Statement Before the
Subcommittee on Crime and Criminal Justice, Committee on the Judiciary, U.S. House of Representatives,
August 4, 1994
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The witness is especially vulnerable—for example, he or she is elderly or a recent
or illegal immigrant.
Residents of gang-dominated neighborhoods often fall into more than one of these
categories, greatly increasing their exposure to intimidation. Incarcerated witnesses and
juvenile witnesses are also especially vulnerable to intimidation. Offenders easily
identify witnesses who are in jail or prison, and because they cannot hide, they are easy
prey to other inmates, including the defendants in the case at hand or defendants‘
associates or family members.
Juveniles are an especially vulnerable group because they are often less able or less
willing to take precautions against being located by would-be intimidators, and because
they are more susceptible to family or peer pressure not to testify. Relocated juveniles
may endanger themselves by contacting old friends and visiting old neighborhoods.
Juveniles may also be less able to take advantage of witness security measures, even
where these are available, because minors not living with both parents may not relocate
out of state, or in extreme cases, change their identity, without the consent of the non-
custodial parent.12
Documented Incidents of Victim/Witness Intimidation in Maryland
In 1997, Amy Lynn Fischer, 26, a clerk in an Annapolis-area photo store, was
scheduled to appear as a witness in a shoplifting case involving two packs of film
worth $35.98. The night before the trial, the defendant shot Ms. Fischer and her
sister as they pulled into their driveway.
In 2002, a drug dealer admitted to setting fire to the Dawson family home in
retaliation for the family‘s reported calls to police about drug dealing in their
neighborhood. The resulting fire claimed the lives of Carnell Dawson, Angela
Dawson, and their five young children.
12
Finn and Healy.
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In November 2002, Baltimore City Police Detective Thomas Newman was
assassinated in retaliation for testifying against the half brother of one of his
killers, who was put on trial for wounding Newman in a 2001 shooting.
Rickey Prince, a 17-year-old Baltimore County homicide witness, was kidnapped
and shot in the head by two friends of the murderer in 2003 a few days after a
prosecutor read Mr. Prince's name aloud in a packed courtroom.
Tjane C. Marshall, the murderer of a pregnant Howard County woman, told
witness Rashall Wall that he would be killed if he testified. The victim was found
shot four times in the face, lying in bed at her suburban apartment in Columbia‘s
Oakland Mills Village in May 2003.
Baltimore City Judge Glynn recalled that one witness, a middle-aged woman
who witnessed the killing of a bail bondsman by a drug dealer, was so scared she
could not open her mouth on the stand. 13
In January 2004, four men barged into Anthony Black‘s home, pointed their guns
at his fiancé and 10-year-old son, and threatened to kill them if Black testified
about their East Baltimore drug ring.14
Intimidation in the Courtroom
One area of intimidation that is of particular concern is the intimidation of victims
and witnesses in and around the courtroom. This common form of intimidation occurs
when friends, relatives, and/or associates of a defendant pack the courtroom with the
precise purpose of frightening victims and witnesses. Intimidation of this nature is often
very subtle, and as a result, can easily be missed by judges, bailiffs, and attorneys in the
courtroom.15 When victims and witnesses are intimidated, the justice system cannot be
successful in fairly prosecuting criminals; important cases are dismissed due to lack of
testimony and evidence, and in return guilty criminals are set free.
13
New York Times.
14
Steele, Michael S., Lt. Governor, before the United States House of Representatives, Committee on
Government Reform, Subcommittee on Criminal Justice, Drug Policy, and Human Resources, May 2,
2005, http://reform.house.gov/UploadedFiles/Lt.%20Gov%20Steele%20Testimony.pdf (accessed on
August 10, 2005).
15
Finn and Healy.
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As more and more cases are lost due to issues of witness intimidation, frightened
citizens and communities believe that law enforcement is powerless to protect them.16
This conspiracy for silence has led to a number of cases being dismissed, and guilty
criminals serving less time in prison, and ultimately being released back into the
community unwarrantedly. Prosecutors and judges say that, intimidation has ingrained
itself in Baltimore‘s judicial system…and there‘s evidence of it everywhere: in recorded
wiretap conversations, in interviews with petrified victims and in courtrooms
themselves.17
In 2003, Wesley Adams, a homicide prosecutor for the State‘s Attorney of
Baltimore City, said that of the nine homicides he tried, ―23 of the 35 witnesses he
managed to get to the stand either recanted or lied, and that was not counting the many
others who were too scared and simply disappeared.‖18 In addition, in the last year, the
Baltimore City state‘s attorneys offices has seen nearly ninety nonfatal shootings
prosecuted and dismissed because of witness problems, the majority involving issues of
intimidation.19
In a specific case of intimidation in the courtroom, Adams reports that in a recent
murder case he prosecuted, ―about a dozen young men wearing what‘s considered the
‗street uniform‘ of blue jeans and whit t-shirts filled the courtroom‘s two back benches.
One female witness visibly shuddered throughout her testimony, and clenched her teeth
so hard that her face swelled up.‖20 Unfortunately this is not an isolated case of
16
Bykowicz, Julie. ―Fight Witness Intimidation,‖ in The Baltimore Sun,. February 17, 2005.
17
Bykowicz, Julie. “Another Weapon in War on Witnesses,” in The Baltimore Sun, December 12, 2004.
18
New York Times.
19
The Baltimore Sun, ―Conspiracy of Silence,‖ February 16, 2004.
20
Bykowicz, “Another Weapon.”
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courtroom intimidation, and judges often have to stop trials in order to calm frightened
witnesses.
Reducing Intimidation in the Courtroom
There are however, actions judges can legally take to avert intimidation in the
courtroom. Case law supports limited courtroom closure or spectator exclusion to prevent
witness intimidation, as well as segregating spectators in the courtroom.21
Judges in Baltimore sometimes-confiscate cell phones to prevent courtroom
observers from instantly sending messages that relay witness or case information directly
to people on the streets. 22 Simply being aware of intimidating spectators and gang
members in the courtroom, and being proactive in the enforcement of a no tolerance
witness intimidation policy can help to eliminate intimidation in the courtroom.
General courtroom and courthouse procedures can be implemented to help
eradicate victim and witness intimidation. In cases where victims and witnesses are
reluctant to testify in front of the defendant, a live television link between the courtroom
and a separate room where the witness, accompanied by a court officer, is situated may
be utilized; in other cases, screens and voice distorters could be used allowing the judge,
counsel and jury to see the witness, but not the suspect or spectators.23
Often intimidation is a direct result of proximity of the intimidator and witness,
and as a result, intimidation can occur in waiting areas of court buildings. To help
eliminate intimidation in the courthouse, separate waiting facilities can be designed to
21
Finn and Healy.
22
Bykowicz, “Another Weapon.”
23
Laycock, Gloria, ed. ―Witness Intimidation: Strategies for Prevention,‖ in Crime Detection and
Prevention Series, No. 55 (1994) http://www.homeoffice.gov.uk/rds/prgpdfs/fcdps55.pdf (accessed July 26,
2005).
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separate victims, witness and their associates from defendants and their associates.24
When separate waiting facilities are not available, non-uniformed officers can monitor
these areas.
Judges are not the only advocates to prevent witness intimidation in the
courtroom; attorneys and bailiffs must participate in eliminating witness intimidation as
well. Attorneys and bailiffs, when aware of intimidation in the courtroom, can bring
intimidation to the judge's attention and make it clear that the court is empowered to
remove, and prosecute, intimidators. Prosecutors often have authority to prevent
intimidation through techniques such as requesting exclusion of daunting spectators, and
impeaching their own witnesses, should they change their testimony before, or at, the
trial. In order to make witnesses feel comfortable, a prosecutor may need to ask a judge
if someone can accompany a witness in the courtroom, especially during testimony.
Attorneys and bailiffs can also take action outside of the courtroom to prevent the
intimidation of witnesses such as, discouraging gang members and intimidating
spectators from entering the courtroom—arrest those with outstanding warrants, use
videotapes in the courtroom, and utilize metal detectors and pat-down searches before
entering the courtroom; and escorting and accompanying witnesses.25 Methods of
questioning and taking testimony from witnesses, case investigation, and contact with
witnesses outside of the courtroom must also be conducted in a manner which does not
intensify or create additional threat or danger to the witness.
It is advisable that judges and attorneys are aware of the steps available to
alleviate witness intimidation. From courtroom procedures to petitions for sealing
24
Laycock.
25
Finn and Healy.
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documents, those in the legal profession must be conscious of accessible resources to aid
in the protection of witnesses.
Though judges, bailiffs and attorneys play important roles with respect to
intimidation in the courtroom, they are only able to act within the realms the legislature
and laws allow them to. With many victims and witnesses disappearing due to threats
from defendants and their associates, legislation is necessary to secure and preserve their
testimony, and utilize it as evidence. This can be accomplished through legislation
allowing statements to be submitted from witnesses who cannot be produced; the
Supreme Court, based on the principle that a defendant cannot benefit from his/her own
misconduct, has upheld this hearsay exception.26 This tool available to federal
prosecutors would be extremely useful on the state level, as attorneys say intimidation is
far more prevalent in state courts than at the federal level. 27 If state prosecutors are given
the tools necessary to conduct cases effectively they can better fulfill their duty to keep
our communities safe.
By reducing intimidation in the courtroom, cases can be tried fairly; prosecutors
will be able to contact and rely on victims and witnesses without fear of losing evidence
and vital testimony, and victims and witnesses will be able to testify without fear of
retaliation. Intimidation in the courtroom is a hindrance to the justice system and must be
addressed aggressively in order to be eliminated.
Witness Intimidation in Correctional Facilities
Many new programs in Maryland are currently being implemented to protect
witnesses testifying at trials while no initiative currently aims at eliminating one main
26
The Baltimore Sun, ―Don‘t Delay,‖ January 20, 2005.
27
Bykowicz, “Another Weapon.”
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source of witness intimidation, the threat presented by convicted felons housed in
correctional facilities. There are twenty-six prisons in Maryland, ranging from minimum
to maximum security, with a total of 27,702 inmates in the state. 28 The main threat that
they represent is their ability to reach people on the outside to ‗do their dirty work‘ to
intimidate those connected to carrying out prosecution of their case. Another major
problem that the prisons are also faced with that fuels the problem of harassing witnesses
is the influx of contraband, mainly consisting of drugs and cellular telephones.
A new tactic being used by some prosecutors to ensure the testimony of some
witnesses is jailing a witness until their testimony is complete. In September 2004,
Baltimore City established a detective unit to find witnesses who refuse to testify and
haul them off to jail if they it find necessary. A member of the new unit, Detective Byron
Conaway, said that as of April 2005 about twenty-five reluctant witnesses have been
jailed so far. These individuals are usually only held for a few days, but that is not
always the case. One prosecutor shared an experience where one of his witnesses who
were incarcerated due to the fear of testifying was brought to jail in the same vehicle as
the defendant, who passed a threatening note.29 This should not be a viable solution for
forcing people to testify. If proper procedures were put in place to protect witnesses from
incarcerated individuals then there would not be such a disinclination to testify.
Three stories recently seen in the news are excellent examples of how inmates are
arranging to silence witnesses of their felonies by attempting to hire fellow inmates to
murder key witnesses involved in their trials. If a defendant kills or silences a witness to
28
Maryland Department of Public Safety and Corrections , ―Statistics,‖,
http://www.dpscs.state.md.us/aboutdpscs/statistics.shtml (accessed on June 20, 2005).
29
Witte, Brian. ―Witness Intimidation: A Crisis,‖ ABC News Online, April 22, 2005,
http://abcnews.go.com/US/print?id=694775 (accessed on June 20, 2005).
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his or her crime then incriminating statements given to police and the grand jury are
inadmissible at trial. Although a bill very recently passed in Maryland allows for
‗hearsay‘ in some circumstances, it does not permit incriminating evidence in all cases
which allows some guilty parties to escape prosecution.
In July 2004, DeAndre Whitehead was acquitted of murder charges that alleged
he shot a man named Russell Peterson outside of his Southwest Baltimore row house.
Peterson‘s daughter, Tashiera, witnessed the murder. While incarcerated prior to the
murder trial, Whitehead was recorded by a wiretap offering his cellmate drugs and money
to kill Tashiera and her mother, Patricia, in addition to offering up their locations.
Although the maximum penalty for murder-for-hire is 10 years, a deal was struck with
federal prosecutors in which Whitehead will serve 6 years in return for pleading guilty to
one of two counts of soliciting to commit a crime of violence. One of the main reasons a
deal was reached meant that Patricia and her terrified daughter would not have to testify
at the trial.30
Another similar incident occurred in February 2005, when a man named Joshua
Anthony Mumford, awaiting trial on armed robbery and attempted murder charges, told
his cellmate that he wanted to have two witnesses in his case killed and asked him
whether he ―has someone who can take care of something like that‖. Mumford‘s
cellmate alerted the police who convinced him to wear a digital recording device. During
the taped conversation, Mumford tried to persuade his cellmate that the witnesses in his
trial could not be kidnapped and held for a while, but had to be killed. The cellmate
made a phone call and had Mumford talk to a county homicide detective posing as
30
Dolan, Matthew. ―Man to Plead Guilty in Bid to Have Girl, 11, Killed,‖ Baltimore Sun, April 12, 2005,
www.baltimoresun.com/news/local/crime/bal-gir0412,1,5769446.story?coll=bal-local-utility, (accessed on
June 20, 2005).
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someone named ―KC‖ trying to arrange payment for the contract murder. When
Mumford could not make arrangements for the $1500 payment, he agreed, ―to kill
anyone for [the cellmate] or his friends when he gets out of jail‖, according to court
documents. One Baltimore County police officer commenting on the recording said, ―He
reiterates that he wants the witnesses murdered‖. Mumford was charged in the
solicitation-for-murder case in Baltimore County and faces up to life in prison if
convicted. Another trend reinforced by this circumstance is that witness intimidation is
not only a problem in Baltimore City. Jason G. League, an assistant Baltimore County
state‘s attorney, reflecting upon the case said, ―It is my experience that traditionally we
have not had a problem with witness intimidation in Baltimore County. However, times
are a-changin‘.‖ In a few months time these two inmates, Joshua Anthony Mumford and
DeAndre Whitehead, were both caught on tape soliciting murder-for-hire of the witnesses
in their trials, so one must wonder daily how many inmates are attempting to orchestrate
the same arrangements, considering prosecutors in Baltimore City alone handle 300
nonfatal shootings and 120 fatal shooting cases each year.31
One of the most famous and more recent cases in Baltimore County is that of
Christopher Bacote, a Morgan State University freshman who pled guilty to first-degree
murder in the shooting death of a 23-year old man. Nine months after Bacote was
charged with murder, he was also charged with obstruction of justice after his finger
prints were matched to those found on a threatening letter left in the mail slot of a family
home of a college student who also received a threatening cell phone message on his cell
31
McMenamin, Jennifer. ―Murder Suspect Charged with Soliciting Killing of Witnesses,‖ Baltimore Sun,
February 20, 2005, www.baltimoresun.com/news/local/crime/bal-county0202,1,7099820.story?coll=bal-
local-utility, (accessed on June 20, 2005).
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phone. Baltimore County police and prosecutors believe that Bacote was behind the
phone message as well as a series of threatening letters mailed from the Baltimore
County Detention Center while he was awaiting trial.32
Steps to Reduce Witness Intimidation in Correctional Facilities
One major threat presented by those incarcerated is the accessibility to cellular
telephones. A total of 121 cell phones were recorded on contraband reports for only nine
examined facilities, which does not include the additional seventeen facilities throughout
the state. Although cell phones are considered contraband within the facilities and thus
deemed strictly prohibited, they still find their way into the hands of inmates. In two
maximum-security Jessup prisons alone (the Maryland House of Corrections and the
Annex), 92 cell phones were confiscated in a ten-month period. The presence of cell
phones allows inmates to arrange drug deals or to continue direct outside criminal
enterprises while serving time in prison. Many union officials believe more contraband
has been getting into the prisons in the past year because of staffing cuts and employee
turnovers.33
Several alternatives exist that may be pursued to decrease the number of cell
phones permeating through the correctional facilities in Maryland, which include a better
screening process of all who enter and exit through the premises, a zero-tolerance policy
regarding gang members, a more aggressive approach to attacking the significant
presence of drugs in the institutions, and mandating more funding to correctional
32
McMenamin, Jennifer. ―Suburbs See Some Cases of Threats Against Witnesses,‖ Baltimore Sun, April 7,
2005, www.baltimoresun.com/news/local/crime/bal-threats0407,1,4584186.story?coll=bal-local-utility,
(accessed on June 20, 2005).
33
Garland, Greg. ―Contraband Floods Maryland Prisons,‖ Baltimore Sun, July 6, 2005,
www.baltimoresun.com/news/local/bal-te.md, (accessed on July 6, 2005).
- 19 -
institutions to man their guard towers. The main recommendation offered in this paper,
however, includes establishing a special cell searching task force in every medium and
maximum-security jails throughout the state.
A specialized cell searching task force should be established whose primary
responsibility is seeking out cell phones and drugs hidden in the inmates‘ cells. Each
maximum and medium security should have a three-man team with post orders that
consist of searching cells daily. Particular emphasis should be placed upon those inmates
who have committed especially violent crimes, repeat offenders of violent crimes, and
those with a past history of intimidating witnesses or jury tampering. Members of
security threat groups, individuals who for the most part are associated with a group that
poses a threat to the security of others and to the institution itself, should also be subject
to more intensive and scrutinized searches. Correctional officers are burdened with many
responsibilities that do not allow them to search inmate cells as often as they should and
could be, so the creation of this team will help to alleviate time discrepancies in an effort
to prevent witness intimidation by way of early detection of a problem. The average cost
of employing a member of the new Contraband Cell Searching Force would be about
$37,914, which is based on the average salary of a maintenance correctional officer with
a minimum pay of $29,944 and a maximum salary of $45,884. There are eight medium
security jails and three maximum-security jails under the supervision of the Division of
Corrections, which should each, have the new task force implemented. The cost of
establishing the new force at each institution would be $113,742, with a total projected
cost of $1,251,162.34 One prosecutor in Washington D.C. reported success in
34
―Statistics,‖ Maryland Department of Public Safety and Corrections,
http://www.dpscs.state.md.us/aboutdpscs/statistics.shtml, (accessed on June 20, 2005).
- 20 -
discovering victim and witness intimidation by executing search warrants in prison when
defendants were arranging an intimidation scheme through written correspondence with
family or gang members on the outside. With a team dedicated just to this cause,
preventing witness intimidation inside facilities, Maryland may experience success in
thwarting plots to intimidate witnesses.
Drugs are significant regarding witness intimidation because they are a major
source of payment used in exchange for one‘s service of intimidating witnesses. In the
late 1980s, the proliferation of a new drug of choice, crack cocaine, coaxed by a steady
heroin market on Baltimore‘s street corners combined with an arsenal of illegal guns,
created a surge in loosely knit, violent drug-trafficking organizations that used guns to
dispense street justice. Today, this violence has a deadly grip on Baltimore, with a
corresponding increase in street justice and witness intimidation.35 A former inmate who
spent significant time in many Maryland prisons said, ―That‘s what everything in the
whole prison is about- drugs. Almost all the violence and stuff is based on the drugs.‖ A
former director of Virginia‘s prison system said inmates are adept at exploiting any
opening to obtain drugs or other forbidden items: ―They are always listening, always
watching.‖ As an example, he said, a prisoner may overhear one officer complain to
another about debt he owes. The inmate might later approach the officer with an offer to
earn some easy money by helping get contraband inside. Baltimore law enforcement
officials even estimate that 50 to 60 percent of the city‘s homicides are related to drug
dealing, and drug offenses are the leading reason for incarceration of state prisoners
convicted of crimes committed in Baltimore. According to a July 2000 assessment by the
35
Jessamy, Patricia. ―Fight Witness Intimidation,‖ Baltimore Sun, February 17, 2005,
www.stattorney.org/wiarticle01.html, (accessed on July 6, 2005).
- 21 -
U.S. Drug Enforcement Administration (DEA), Baltimore is the ―most heroin-plagued
area‖ in the nation and faces one of the most severe crack problems as well.36 A better
screening process of searching people who come through facilities may drastically reduce
the amount of drugs and cell phones being brought into the facilities. This more strict
screening process would not only apply to visitors, but also correctional officers and
other staff. According to Frank C. Sizer Jr., the Correction Commissioner, visitors,
volunteers, support staff, and officers who are insufficiently vigilant or are dishonest are
all means by which drugs and other contraband can get into a prison. He also said, ―The
fact of the matter is that we have some staff that are corrupt‖.37 Although some
undependable people may slip through the cracks and become hired at the correctional
facilities, some steps may be taken to reduce these instances from occurring. A more
rigorous process of searching all who enter a facility may ensure that less contraband is
being brought into the correctional facilities.
Gangs are quite prevalent throughout the correctional system as well, and they
maintain ties with their fellow gang members on the outside while they are incarcerated.
Due to uninterrupted connections between incarcerated individuals and neighborhood
gang members, victims and witnesses no longer feel that imprisonment of the defendant
pending trial or after conviction can ensure their safety in the community. The
knowledge that gangs have easy access to members of the community deters many
witnesses at once. Some gangs are said to hire attorneys to represent incarcerated
witnesses who may be in custody as a result of the crime in question or on another
36
―Treating Baltimore‘s Drug Problem,‖ Smart Steps, www.drugstrategies.org/Baltimore/BaltCh_2.html,
(accessed on July 6, 2005).
37
Garland.
- 22 -
unrelated charge. The gangs hire these lawyers without the witness‘ knowledge or
consent in an effort to control the witness‘ testimony.38 Jerry Estes, a member of the
board of the National District Attorney‘s Association said, ―Any time you have organized
crime—and gang activity is a form of organized crime—you will have a code of silence
and intimidation elements involved.‖ A city homicide prosecutor, E. Wesley Adams,
recalled a young Baltimore man, Adrian Tony Jenkins, who witnessed an associate shoot
and beat a man who urinated on gang turf in May 1999. Jenkins identified the shooter as
Andre ―Turtle‖ Chavis. After Chavis was arrested, he penned letters from his jail cell to
associates, and included copies of Jenkins‘ typed statement to police. ―Tony Rat….. got
to die because, yo, he can‘t be trusted.‖39 All correctional facilities should institute strict
zero-tolerance policies towards gangs and gang members. This should include separating
known gang members and not allowing them to associate at any time, in addition to
closely monitoring their phone calls and any other form of correspondence. They should
be a main focal point of the Special Cell Searching Force‘s jurisdiction, being subject to
daily cell ‗shakedowns‘ or searches.
Although some of the suggestions mentioned in this paper may seem expensive or
intangible, a simple and inexpensive alternative may be to better open the communication
between law enforcement officers, prosecutors, and the judiciary. Law enforcement
officers are better positioned than prosecutors to foresee and prevent intimidation at the
street level. Law enforcement officers should inform prosecutors about repeat offenders
and potential intimidators, alert prosecutors to potential witnesses who are being
38
Finn and Healy.
39
Gately, Gary. ―Baltimore Struggles to Battle Witness Intimidation,‖ The Boston Globe , February 12,
2005, www.stattorney.org/wiarticle02.html, (accessed on July 06, 2005).
- 23 -
intimidated, and reduce gang income and intimidation by disrupting gang operations with
intensive policing tactics.
It may even be helpful to have police officers visit the families of potential
intimidators and explain the laws concerning obstruction of justice.40 Based on the
serious nature of the problem, putting justice in jeopardy because of the lack of people
willing to testify in criminal cases, more extreme measures should be put in place, such
as a special cell searching task force, implementing more strict searches of all who travel
through the correctional facilities in Maryland, and instituting a zero-tolerance gang
policy. If these suggestions are implemented they may help to drastically reduce the
amount of cell phones, drugs, and gang activity in correctional facilities throughout the
state of Maryland, which will in turn make a more comfortable atmosphere for witnesses
to testify. I urge you to not let justice be in jeopardy any longer, but to act preventatively
to thwart any future hindrance of prosecution by protecting innocent victims and
witnesses.
Why Do We Need to Implement Stricter Policies?
Witness intimidation continues to be an impediment to the effective prosecution
of violent crimes, especially in jurisdictions where witnesses are reluctant to testify for
fear of their lives.41 Since the October 16, 2002 firebombing of the home of East
Baltimore residents Angela and Carnell Dawson which killed the couple and their five
children, and the recent release of a ―Stop Snitching‖ DVD warning that people could be
killed for cooperating with the police, witness intimidation has continued to pervade
40
Finn and Healey.
41
Delegate Vallario, et al., HB 748: ―Criminal Law – Intimidation of Witnesses‖, Maryland General
Assembly, 2005 Session.
- 24 -
almost every aspect of criminal cases, as reported by city prosecutors.42 Unfortunately,
without the ability to ensure protection of those who have witnessed violent crimes
involving some of Maryland‘s most dangerous drug dealers, prosecuting the state‘s most
violent criminals will become increasingly difficult.
Models for Successful Victim/Witness Protection Programs
Without the creation and implementation of a more structured and far-reaching
witness protection policy, individuals willing to report criminal activity and testify in
court will continue to be threatened, harassed, and even killed for their cooperation.
Despite recent state and federal efforts, which have taken important steps to curbing the
threats and violence directed towards witnesses and informants, witness intimidation is
still a pervasive and serious issue. State‘s Attorney Patricia C. Jessamy said, ―Witness
intimidation—ranging from threatening gestures inside courtrooms to more blatant
attacks that leave witnesses injured or dead—is like a plague in Baltimore.‖43 Baltimore
prosecutors have said that these types of threats have made it increasingly difficult to
convict criminals and that ―about one-quarter of last year‘s gun cases . . . were dropped
because direct or perceived threats created problems with testimony.‖ 44
More effective law enforcement and prosecution is a necessary component to
reducing credible threats against witnesses, and the State of Maryland has an obligation
to its citizens to effectively protect them against such actions. For the State of Maryland
to produce an effective witness protection, it is necessary to look towards witness
protection programs in Rhode Island, California, Colorado, and Ohio, as well as the
42
Dolan.
43
Bykowicz, Julie. ―O‘Malley Testifies on Witness Protection,‖ in The Baltimore Sun, May 3, 2005.
44
WJZ-Channel 13 News, ―Stop Snitching T-shirts on Sale‖, April 30, 2005.
- 25 -
highly successful Federal Witness Security Program (WITSEC) run by the U.S. Marshals
Service, which has, since its inception, protected over 7,500 witnesses and more than
9,500 family members, and the federal Emergency Witness Assistance Program (EWAP).
Individuals who are part of state run programs enjoy range of comprehensive services.
The Rhode Island Victim Services Unit, run through the State‘s Attorney General‘s
Office, informs witnesses and victims of their rights, notifies them of the status of their
case, assists them in court, and helps them to better understand the legal process. ―In
addition, the unit provides referrals to other agencies and support groups that can provide
further assistance with financial, legal, medical, or emotional problems resulting from the
crime.45
Additionally, the State of Maryland should look to another highly successful and
comprehensive program, the California Witness Protection Program. ―Administered by
the Department of Justice, the California Witness protection Program provides funding to
district attorneys to ensure the safety of witnesses whose testimony is crucial to obtain
criminal convictions.‖ 46 A comprehensive publication titled, ―Help for Victims of
Crime,‖ provided by The State of California Office of Victims‘ Services offers a detailing
both victim/witness rights, and a full range of services available to protect and assist
them. Simply educating victims and witness on their rights, and assisting them through
the prosecution and trial phase, can serve to protect these individuals from becoming
45
State of Rhode Island: Office of the Attorney General ―Victim Services,‖
www.riag.ri.gov/criminal/victim.php, (accessed on July 24, 2005).
46
State of California: Office of the Attorney General ―Attorney General Lockyer, Prosecutors, Urge
Continued Funding of Witness Protection Program,‖ http://ag.ca.gov/newsalerts/2003/03-036.htm
(accessed on July 25, 2005).
- 26 -
victims of retaliation. Additionally, it provides information on Victim Witness Centers
by county so that individuals seeking such services have easy access.
The WITSEC program has been highly successful, and has achieved an overall
conviction rate of 80 percent resulting from protected witnesses‘ testimonies.47 WITSEC
offers witnesses and their family‘s new identities, housing, medical care, job training, and
employment, and most importantly, ―24-hour protection to all witnesses while they are in
a high threat environment, including pre-trial conferences, trial testimonials and other
court appearances.‖48 Additionally, no individuals participating in WITSEC who follow
security guidelines have ever been harmed. It can be assumed, that if replicated in the
state of Maryland, that, if offered such comprehensive services such as those outlined by
the U.S. Marshals Service, both prosecutors and witnesses would enjoy higher levels of
success in trying and convicting dangerous criminals and protecting those who testified
against them.
The federal Emergency Witness Assistance Program, created in 1997―to address the
need for immediate, non-protective, short duration witness assistance not available
through the Witness Security Program,‖49 offers U.S. Attorney‘s Offices with the ability
to assist witnesses and potential witnesses on an emergency basis. Unlike WITSEC,
EWAP does not provide any protective services; it solely provides emergency monetary
assistance and services to help relieve witness fears and concerns. The services provided
47
United States Marshals Service ,―Witness Security Program,‖, www.usmarshals.gov/witsec, (accessed on
July 21, 2005).
48
United States Marshals Service
49
U.S. Department of Justice , ―The Emergency Witness Assistance Program,‖
www.usdoj.gov/oig/reports/EOUSA/e0102/intro.htm#progback, (accessed on July 21, 2005).
- 27 -
by EWAP to U.S. Attorney‘s Offices are low-cost (approximately $4,000), and usually
limited to 30 days. These services include:
Transportation
Temporary Housing/Moving Expenses
Temporary Subsistence
Miscellaneous Expenses up to $250 (for items such as window security, locks, or
repairs)
Emergency telephone services
Child or Elder Care50
Even though EWAP only provides a temporary solution for witness protection, in many
cases these services can be sufficient in protecting these potential victims. With a low
price tag, the implementation of a program similar to EWAP is not beyond the means of
the State of Maryland.
Additionally, state prosecutors have agreed upon two urgent needs to address the
increased levels of threats and intimidation that have hindered the successful prosecution
of violent crime in Baltimore and throughout Maryland. These are 1) Changing the state
law and maximum penalty for witness intimidation and urging state lawmakers to provide
the same legal tools available to federal prosecutors, and 2) the need to locate and pursue
missing witnesses to bring them to court to allow cases to be successfully prosecuted.51
With an effective witness protection program similar to that provided by the federal
government, prosecutors are sure to receive significantly higher rates of cooperation
among witnesses, and will subsequently enjoy rising conviction rates as a result.
50
U.S. Department of Justice.
51
Office of the State’s Attorney for Baltimore City, ―Congressional Field Hearing—Witness Intimidation‖,
May 2, 2005.
- 28 -
Conclusion
Witness intimidation continues to provide a serious threat to public security, and the
State of Maryland has a responsibility to its citizens to provide adequate protection from
these threats. By modeling itself off of the highly successful Federal Witness Security
Program, and on other state-run programs throughout the country, Maryland would surely
enjoy high levels of witness security, which will have important long-term consequences
for witness and public safety.
In summation, it is recommended that a number of policies should be implemented in
order to achieve the successful protection of victims and witnesses of violent crime.
These include:
1. The creation of a Task Force within the Maryland State Police to address issues of
witness protection and security. In extreme cases, this Task Force would be
responsible for providing 24-hour protection to witnesses of serious and violent
crime while they are in a high-threat environment.
2. A comprehensive guide, much like that of the State of California, to provide
witnesses with a clear definition of their rights, and how they can protect
themselves against threatening individuals.
3. A comprehensive relocation program that can assist witnesses in cross-town or
cross-county relocation. This includes: moving expenses, assistance enrolling
children in new schools, assistance in accessing medical and community
resources, counseling to assist individuals and families in adjusting to their new
environment, and, in extreme cases, monetary assistance until they can obtain new
employment, and assistance obtaining new employment.
4. The creation of a ―Cell-Searching Task Force‖ at every medium and maximum
security prison. These Task Forces will be comprised of three team members.
This should cost approximately $113,742 at each of the eleven facilities in the
State of Maryland, for a total cost of $1,251,162.
5. Have police officers visit the homes of potential intimidators' families
to warn them of the penalties of obstruction of justice.
- 29 -
6. Mandate more monies to medium and maximum correctional facilities for higher
levels of security to monitor all incoming persons for contraband.
7. The implementation better searching procedures for all individuals entering
correctional facilities to ensure they are not bringing contraband inside the
facility.
- 30 -
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- 32 -