Witness intimidation in the digital age: intimidation in pretrial proceedings - the Philadelphia experience.

• Author: O'Malley, Margaret
• Position: Part 3

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 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.

"Witness intimidation pervades the Philadelphia criminal courts, increasingly extracting a heavy toll in no-show witnesses, recanted testimony--and collapsed cases... fear has become an unspoken factor in virtually every court case involving violent crime...."... "The worst thing is that the situation creates a climate of fear that the government can't control the criminals that the police can't control the criminals that the courts can't control the criminals and that there is no hope. (1)

Witness intimidation flourishes within a community due to any number of factors--within and outside the criminal justice system. Antiquated facilities, outdated statutes, inefficient practices, mismanagement, underfunded programs and myriad other factors can and do inhibit victim and witness safety.

One of the most thoroughly documented examples is Philadelphia's criminal justice system, which has been characterized as one of the most troubled in the nation since the 1980s. According to a 1990 report, as violent crime increased, the city suffered extreme fiscal pressure, an inefficient and overly expensive court system, shortages of police and judicial personnel, and a flawed bail system. Jail overcrowding prompted a federal court order mandating the release of thousands of criminal suspects. (2) By the end of 1989, there was a backlog of 12,199 criminal cases, with the average case taking 245 days from arrest to final disposition, twice the national norm.

The situation did not improve over the next two decades.

By 2009, this perfect storm of institutional, statutory and human factors was examined in a four-part Philadelphia Inquirer series "Justice: Delayed, Dismissed, Denied." (3) The Inquirer tracked defendants arrested for certain violent crimes in 2006 and 2007 whose cases had been resolved by the end of 2008. (4) According to Inquirer research, conviction rates for violent crimes were alarmingly low, particularly in light of the number of violent felonies reported to the FBI.

During that two-year period, of 20,120 aggravated assaults reported to the FBI, 10,076 defendants were arrested and charged, and 862 were convicted of that crime by the end of 2008, for a conviction rate of less than 10 percent. Of 21,229 robberies reported, 6,559 defendants were charged and 1,143 were convicted of robbery by the end of 2008, representing a conviction rate of 19 percent. Half of the robbery and aggravated assault cases filed were never set for trial because the cases were withdrawn by the district attorney or dismissed by the court at the preliminary hearing stage. (5)

The series also highlighted the stories of witnesses brutally murdered, before and after providing testimony--blatant, public and violent executions, most often with guns. (6) It served as a powerful catalyst for the Pennsylvania Senate to establish an advisory committee to examine aspects of Philadelphia's criminal justice system, identified as contributing to its near-collapse, and to develop solutions for them. (7) Its findings were not unexpected:

* Witness fatigue resulting from repeated delays and rescheduling of hearings;

* Witness intimidation by defendants and their supporters inside court facilities;

* Court rules, procedures and inefficiencies that undermined the prosecution's ability to complete preliminary hearings;

* Gamesmanship by defense attorneys in the conduct of preliminary hearings, calculated to wear down victims and witnesses and ultimately cause the courts to dismiss cases; and

* A broken bail system allowing repeat offenders to skip court appearances, delay the disposition of cases, and remain free to commit additional crimes and threaten witnesses. (8)

Intimidation in Court Facilities and Judicial Proceedings

Witness intimidation is a crime against justice, and yet, some of the most effective intimidation occurs in and around court facilities. Intimidation is often a crime of opportunity--the most obvious being at the courthouse. Most court facilities were not designed to accommodate witness safety. Hostile contact is easily arranged in crowded court entrances, hallways, restrooms and waiting areas. It occurs quickly, quietly and in areas where they are least likely to be observed, making it nearly impossible to prove.

In 2007, the Pennsylvania Commission on Crime and Delinquency (PCCD) (9) found that inside city court facilities "Fear is often induced by threats relayed to witnesses or their families directly or, more commonly, in subtle, indirect ways. They are aimed at victims and witnesses as they are preparing to, or are presenting testimony." (10) Similar tactics are observed all over the country: defendants' supporters attend court, sometimes dressed in identical clothing or gang colors. They make threatening gestures, aim pointed looks at witnesses, have ostensibly "private" conversations insulting or threatening witnesses, or mouth-silent messages. Victims and witnesses understand these messages, regardless of their form.

Responses to Court Intimidation. Responsibility for court security is divided between the judges, who control the courtroom, and a state or local law enforcement agency, which controls common areas in and around court facilities. (11)

Witnesses and prosecutors have expressed frustration when judges, faced with in-court intimidation, appear more focused on remaining neutral and independent rather than stopping the behavior and imposing substantive penalties. (12)

Wary of reversal, judges are often reluctant to take action, specifically to exclude individual spectators or entirely close courtrooms. In an effort to support judges in Philadelphia, the PCCD and collaborating jurists developed a Bench Book containing legal precedents and practical techniques to counteract intimidation. (13) It encourages judges to be attentive to conduct that might intimidate a witness and addresses creating a safe and secure courtroom through:

* Judicial control of the courtroom

* Protective orders restricting conduct outside the courtroom

* Use of anonymous juries

* Bail as a deterrent to witness intimidation

* Excluding spectators

*...