Public Safety & Justice

Terrified to Testify

Increasingly, criminal cases are being stalled because intimidated witnesses don't show up or because they recant their statements.
by | November 2007

In November 2004, when Baltimore City State's Attorney Patricia Jessamy obtained a copy of a profanity-laden street video that advocated murdering "snitches" who cooperate with police, her first reaction was disgust. Her second reaction was to make hundreds of copies and get the tape into the hands of every legislator in the state of Maryland.

The previous year, Jessamy had tried--and failed--to get the legislature to strengthen its witness-intimidation law. She felt that while she hadn't been able to convince legislators of the severity of the problem, the video contained the necessary shock value to effectively make her case. "It's like someone hands you lemons and then you make lemonade," she says. "The video was a horrendous thing but we were not going to allow the opportunity to use it for good escape."

In 2005, Jessamy's volley of videos paid off: Lawmakers passed a bill that elevated witness intimidation to a felony, quadrupled the maximum jail term and allowed limited testimony from intimidated or absent witnesses. Maryland's measure is just one of many either enacted or debated in the past few years seeking to address witness intimidation- -a problem that big-city prosecutors insist is happening in up to 90 percent of their homicide prosecutions. But questions remain as to whether legislation or other conventional tactics can actually make a dent in a problem that has become ingrained in inner-city culture.

HEARSAY EXCEPTIONS

Witness intimidation, of course, is nothing new. Examples of jailhouse snitches date back centuries in England, while the concept of omerta, or a "code of silence," has also existed for hundreds of years in Mafia communities. The difference between those concepts and what is going on today is that the "stop snitching" mantra has become a cultural phenomenon affecting law-abiding citizens and even children.

"People on the outside can't even conceive of what is happening here," says David Kennedy, director of the Center for Crime Prevention and Control at the John Jay College of Criminal Justice. "It's gotten just unbelievably bad. Even if you're afraid, even if you're a good citizen, good citizens don't deal with the cops."

Blatant examples of witness intimidation are unfortunately abundant. Six members of the Dawson family were killed in East Baltimore in 2002 when their house was firebombed in apparent retaliation for their repeated calls to police to complain about drug dealing. In 2004, Newark police attributed the murder of four people in a vacant lot to the fact that one was a murder witness; a witness to the quadruple murders was later killed as well. Last year, at least eight witnesses to the murder of a 10-year-old boy in Philadelphia went silent when called to the witness stand.

Jessamy says that she started to notice the growing incidence of witness intimidation about five years ago, in the course of looking at statistics charting why certain cases hadn't moved forward. Increasingly, cases were being stalled because witnesses either weren't showing up or were recanting their testimony.

In 2004, she promoted a bill in the legislature that would have both increased penalties for witness intimidation and enabled lawyers to introduce previous statements from a witness into evidence if a witness was unable or unwilling to testify because of wrongdoing from the defendant. That piece of the legislation, known as a "hearsay exception," drew ire from defense attorneys concerned that their clients would lose their right to confront their accusers. The federal government codified such an exception in 1997, and at least 13 other states have done so since.

The concerns over hearsay doomed the bill in 2004, and when it was passed in 2005 after the "Stop Snitchin'" video, compromises left parties on both sides unhappy. The hearsay exception was included in the bill, but only for statements that were made under oath, written and signed, or videotaped. In other words, if witnesses disappear before they are called to testify at a trial, a prior statement that they made to a police officer could be introduced into evidence, if it could be proven that their disappearance was a result of wrongdoing by the defendant. A prior statement that a witness made to a friend, however, could not be admitted in Maryland.

"You have to work with the rules of evidence," says Lynn McLain, a University of Baltimore law school professor who supports a hearsay exception. "You want to give a fair trial to the defendant but you also don't want to give a payoff for witness intimidation."

The two sides in the witness-intimidation debate also clashed over the crimes for which the law should apply. Jessamy complains that the bill is a "toothless tiger"--in part because it does not apply to domestic violence and some child-abuse crimes. And many defense attorneys still consider the bill overkill. "The position of the defense bar was that the changes were unnecessary," says Maureen Essex, president of the Maryland Criminal Defense Attorneys' Association. "There was already a witness-intimidation statute in place, and I think that that was sufficient."

Since the passage of the bill, about 35 people have been charged in Baltimore under the new law, and the hearsay exception has been used a handful of times--including when a defendant's sister refused to testify against him.

CHANGING STORIES

Other states and localities have also seen a flurry of activity on witness intimidation. Massachusetts passed a bill last year to create a statewide witness-protection program and increase witness- intimidation penalties. This year, another bill was introduced there that would sentence juveniles charged with witness intimidation as adults. California saw a bill to lengthen the maximum time that witnesses could receive state protection. In Newark, county prosecutors this year started redacting witness information from documents given to defense lawyers before an indictment.

But states also are finding that the problem runs deeper than just the intimidators, and are developing strategies to deal with reluctant witnesses. About 15 states have witness-protection programs, although many have extremely limited budgets--New Jersey exhausted its initial $100,000 budget last year before coming up with more funds--and others have protections limited to six months or one year. In Congress, Representative Elijah Cummings of Maryland has repeatedly, and unsuccessfully, introduced a bill authorizing $90 million for state witness-protection programs.

But even when protection is available, many witnesses do not want to leave behind their families and their jobs. In contrast to the exotic locales and new identities popularly associated with the federal witness-protection program, state and local witness protection generally involves moving witnesses across town or to the suburbs.

And some witnesses--often after being intimidated--just stop showing up or cooperating in any way. It is against those witnesses that prosecutors are taking an increasingly hard line. In Newark earlier this year, prosecutors charged a murder witness with making false statements to police after he changed his story about witnessing a gang killing. Since 2001, Baltimore has been arresting and jailing witnesses who do not show up when they are supposed to testify.

Jessamy argues that the practice, which she calls a "body attachment" and used 179 times in 2006, is a necessary step when there's no other way to get a witness into court. "That's the last resort, but we do everything to deal with this witness-intimidation issue," she says.

DISCONNECTED FROM POLICE

There's also the fact that witness-protection laws and tough witness tactics reach only the witnesses who cooperate in the first place--not the many witnesses who never identify themselves or refuse to talk with the police. That problem was dramatized in an April "60 Minutes" television segment in which the rapper Cam'ron explained that not only did he not cooperate with police when seven shots were fired into his vehicle in an attempted carjacking but also that he wouldn't call the police even if he found out that a serial killer were living next door. (He later apologized for the statements.) The show also featured several children saying that they wouldn't cooperate with police because it was against their "code" of behavior.

The real issue, says John Jay's Kennedy, is that witness intimidation is just one symptom of a larger problem: the distrust of African Americans toward police. While prominent rappers might have helped make "Stop Snitchin'" a catchphrase, he says, the problem of non- cooperation stems as much from anger as from fear of retribution. "It's not intimidation--it's racial schism," he says. "The community is by free choice withdrawing from any contact with law enforcement. People are handling their business themselves rather than going to police."

Kennedy says that many in inner-city communities believe that the roots of the problem date back to slavery, and that the distrust--and the prevalence of witness intimidation--has ratcheted up over the past few years because of heavy-handed police tactics used in drug enforcement. Laws to strengthen witness-intimidation penalties, he says, will have "no traction whatsoever" because the black community is already so disconnected from police authority. Kennedy argues that the only hope in reconnecting a neighborhood with law enforcement are major changes in policing, such as involving drug dealers in an effort to eliminate overt drug markets.

For her part, Jessamy agrees that legislation is just a small part of the solution. Her office, for example, produced a "Keep Talking" video to counter the "Stop Snitchin'" video and is making sure that every witness-intimidation conviction is trumpeted in the press in order to deter future intimidators. Still, witness intimidation shows few signs of abating: So far this year, her office has charged about a dozen people with the crime. "It has to be a comprehensive strategy," she says. "Legislation alone is not going to cut it."

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Anya Sostek  |  Former Correspondent
asostek@gmail.com  | 

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