Discovering witness intimidation.

• Author: O'Malley, Margaret
• Position: Witness Intimidation in the Digital Age, part 4

THE GOAL OF THIS SERIES is to provide an overview of the current landscape of witness intimidation crimes, with particular attention to the profound effect that technological advances have had on how these crimes are perpetrated, investigated and prosecuted.

Part I provides an introduction to the series on the current state of witness intimidation. Part I of this series can be found in Volume 48, Number 3, July/August/September 2014 issue of this magazine.

Part II provides an overview of the various sources and types of witness intimidation, who is intimidated, who intimidates, how witnesses are intimidated and when intimidation occurs. Part II of this series can be found in Volume 48, Number 4, October/November/December 2014 issue of this magazine.

Part III examines how various components of the pretrial process may present serious challenges for prosecutors in the protection of witnesses and presents strategies to counteract or mitigate intimidation. Part III of this series can be found in Volume 49, Number 1, January/February/March 2015 issue of this magazine.

Part IV discusses the problem of discovery as a tool for witness intimidation and recent legislation aimed at limiting the distribution of discovery material to third parties.

Part V reviews the challenges presented by the use of Internet and cellular technologies to intimidate victims, witnesses, jurors and judicial officials.

ALTHOUGH MOST STATE STATUTES, and even ABA Standards, provide that discovery is to be used only to prepare a defense, (1) it is, in fact, often used to identify, locate, threaten, and to kill witnesses. According to a recent Washington Post article, based on police and court records, at least 37 people in Washington, D.C. and Maryland have been killed since 2004 for cooperating with law enforcement. Of the 18 killed in the District, at least five were killed after defense attorneys provided witness names or other identifying information to their clients. According to the Post, in one case, a lawyer tipped off a defendant that prosecutors wanted to interview the witness. Six days later, the witness was found dead. (2) There is little doubt that these numbers grossly underestimate the true extent of the problem.

Multi-part investigative reports in The New York Times, (3) Philadelphia Inquirer, (4) and Denver Post (5) have exposed dozens of cases of witness intimidation but have seldom highlighted the connection between witness interference and discovery. The tension between a defendant's constitutional rights and the criminal misuse of discovery information is extremely sensitive for criminal justice professionals and seldom publicly addressed.

In a notable exception, last year in Erie County, New York, District Attorney Frank A. Sedita III confronted the issue both directly and publicly. In the fall of 2014, in advance of a pretrial hearing for Ricky Grace, charged with three counts each of attempted murder, assault and related weapons charges, the identity of one prosecution witness was disclosed to the defense. Soon after, Grace's "associate" threatened to kill the witness if he did not recant his prior testimony--going so far as to provide an affidavit for the witness to sign. The remaining witnesses, whose identities were not disclosed until trial, were not targeted, and Grace was convicted.

According to Sedita, the early disclosure of a witness's identity directly led to the harassment. "[U]nder current law, a defendant is entitled to pretrial evidentiary hearings and a wealth of information about the prosecution case early in the process and well before trial begins. Delaying the identification of civilian witnesses until the time of trial ... correctly balances the right of the accused to confront his accusers in a court of law with the right of witnesses to be free from being harassed and intimidated. This case once again illustrates what occurs when violent thugs are provided with information that identifies witnesses too far in advance of courtroom proceedings." (6) In a separate interview he added, commenting on proposals to revise New York's discovery rules: "... If some of the legislation that's being proposed in Albany is passed, it will be lights out for the prosecution of violent crime in this county and probably all the other counties across the state." (7)

DISCOVERY AS A WITNESS INTIMIDATION PROBLEM

The majority of misdemeanor and felony cases crossing a prosecutor's desk are unlikely to involve witness interference or obstruction of justice issues. Most proceed through the pretrial process and discovery without serious incident. In contrast, prosecutors generally expect intimidation in domestic violence, sexual assault and stalking cases. There, although the danger to victims and witnesses is real, providing discovery is not a key issue because the perpetrators generally know the victims and witnesses. The challenge lies in keeping them safe, both physically and emotionally.

In all too many violent felony and gang cases, communitywide and targeted intimidation has become so pervasive that locating even a single witness willing to cooperate has become a nearly insurmountable obstacle. (8) Intimidation works--and the worst offenders know it. Every time a defendant successfully uses intimidation to escape prosecution, finding anyone brave or, perhaps, foolish enough to testify becomes monumentally more difficult. The proof is in the number of cases some career criminals have managed to have stalled, settled for minor charges or dismissed. In a recent federal/state roundup of 32 members of a crack-cocaine ring in Hamilton County, Tennessee, one defendant had 40 prior cases dismissed in that county alone. Although the gang leader had only 12 prior cases dismissed, he had a reputation on the streets for being a violent killer who had a witness beaten in jail and another shot. (9) The pattern is so common that there isn't a single prosecution office that couldn't identify a dozen or more similar cases. Often, the only hope of getting a case to trial lies in preventing defendants from discovering the identity of witnesses.

Prosecutors have limited tools to protect witnesses. High bail, pretrial detention and protective orders are of limited utility and most jurisdictions simply do not have the infrastructure or funding to provide meaningful, long-term witness protection. (10) Even when offered, many witnesses and victims find moving away from family, jobs and community too difficult and refuse to relocate. Still others accept protection and then return, however briefly, and end up dead within hours. (11) In some cases, protecting the identity of key witnesses for as long as possible, until the middle of trial if necessary, is the only way to protect them.

Information is Power. State and federal defense bars and other organizations continue to advocate for "open file" discovery: the mandatory, automatic and early delivery to defense counsel (and to defendants) of all discovery, including witness information. (12) Many advocates cite state rules that require redaction of "identifying" witness information (13) or prohibit disclosure of a witness's address or telephone number (14) as sufficient to safeguard witnesses. This did little to protect witnesses a decade ago, and almost nothing today.

Anyone familiar with police reports and witness statements knows that even if names are excised, both context and content make it easy for defendants to identify them. Witness statements "... may unavoidably refer to a particular witness's romantic jealousies, professional rivalries, criminal record, or role in a conspiracy, all of which may allow the defense to figure out the witness's identity." A person's presence in a particular neighborhood at the time of a crime alone may be enough to identify them. With little more than Internet access and a...