What Is Witness Intimidation

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 -1- 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) -2- 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). -3- 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) -4- 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 9 Kash. Finn and Healy. -5- 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. Communitywide 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. -6- 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 -7- 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. -8- 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 -9- 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 noncustodial 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. - 10 - 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 14 New York Times. 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. - 11 - 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 17 Bykowicz, Julie. ―Fight Witness Intimidation,‖ in The Baltimore Sun,. February 17, 2005. 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.” - 12 - 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 22 Finn and Healy. 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). - 13 - 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 25 Laycock. Finn and Healy. - 14 - 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 27 The Baltimore Sun, ―Don‘t Delay,‖ January 20, 2005. Bykowicz, “Another Weapon.” - 15 - 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). - 16 - 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). - 17 - 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=ballocal-utility, (accessed on June 20, 2005). - 18 - 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 39 Finn and Healy. 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 41 Finn and Healey. 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 43 Dolan. 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 51 U.S. Department of Justice. 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 - Works Cited Bykowicz, Julie. “Another Weapon in War on Witnesses,” in The Baltimore Sun, December 12, 2004. Bykowicz, Julie. ―Fight Witness Intimidation,‖ in The Baltimore Sun,. February 17, 2005. Bykowicz, Julie. ―O‘Malley Testifies on Witness Protection,‖ in The Baltimore Sun, May 3, 2005. 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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