Witness intimidation in the digital age: the basics.

Author:O'Malley, Margaret
Position::Part 2
 
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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 provided 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 I of this series can be found in Volume 48, Number 3, July/August/September 2014 issue of this magazine.

Part II 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 III will examine 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 will review the challenges presented by the use of Internet and cellular technologies to intimidate victims, witnesses, jurors and judicial officials.

IN ORDER FOR PROSECUTORS to reduce successful patterns of intimidation they need to understand who intimidates and is likely to be intimidated; what forms intimidation takes; when intimidation occurs; and how intimidators convince witnesses (1) to refuse to report a crime, to testify or recant prior statements.

WHO INTIMIDATES?

There is no scientifically valid method for predicting which defendant will, directly or indirectly, target a victim or witness. A defendant's criminal history, particularly history of violent crime, the nature of the charged offense, relationship to the victim or witness, and criminal associations are frequently predictors of witness intimidation. Compared to penalties for violent crime, state sentences for intimidation remain relatively light, particularly when compared to federal sentences. (2) In addition, sentencing rules may require intimidation sentences run concurrent to those for the underlying crime. Offenders have little to lose and much to gain by avoiding conviction through intimidation. It is merely the cost of doing business.

For others, the motivation is more personal, involving power, reputation and control. Domestic and intimate partner violence and certain sexual abuse offenses arise out of a complex web of relationships. Cooperation with law enforcement and prosecutors challenge the abuser's power and control. Pressuring a victim to "drop charges," recant or refuse to testify is primarily an attempt to regain control. Prosecutors frequently lose their complaining witness due to pressure, coercion or threats from family members acting on behalf of the offender. Identifying the source of intimidation is less of a challenge than ensuring the safety and cooperation of victims and witnesses. (3)

Defense Attorneys and Investigators. Due to their unlimited access to police reports, witness statements and grand jury transcripts, defense attorneys and their investigators are able, directly or indirectly, to orchestrate, abet or simply ignore, their clients' interference with victims and witnesses. The 2013 conviction of former New Jersey federal prosecutor Paul Bergrin for conspiring to kill a key government witness in his client's drug-dealing case is exceptional, not only because it was successful, but because it was pursued. (4) A Rhode Island defense attorney was convicted of paying $10,000 to, and then instructing, a stabbing victim on how to change his testimony--or, as characterized by the presiding judge, providing "a playbook on how to lie without getting caught." (5) A defense attorney in Berkeley, California, who admitted to passing handwritten notes from her client to members of his family that turned out to be a hit list of witnesses scheduled to testify at his trial for the murder of an Oakland journalist, was not prosecuted. (6)

The case of San Francisco defense investigator Steve Vender, who was indicted for felony witness intimidation in 2009, attracted press attention. According to shooting victim Ladarius Greer, Vender had been continually calling him asking him not to testify against the gunman, Phil Pitney. He left a message warning Greer that he would be arrested on a felony warrant and advised "It's a good time to visit the Fresno Riviera and stay well." (7) Greer failed to show up to testify. Vender's 2013 trial ended in a mistrial and he entered a plea to a misdemeanor charge of attempting to dissuade a witness. (8)

Vender was working for Pitney's attorney Eric Safire. It is unclear whether Safire was investigated, notwithstanding his courtroom antics during the 2008 preliminary hearing of Charles "Cheese" Heard for murder. In that case, when the sole eyewitness was asked to identify the shooter, eight gang members stood up in unison, crossed their arms and stared at the witness. (9) Safire admitted to orchestrating the stunt but claimed that he was only challenging the witness's identification of the defendant. (10) Safire was not charged.

In many more cases, witness statements, grand jury testimony and sealed court documents obtained through discovery have been distributed throughout witnesses' neighborhoods and posted on social media with the sole intent to frighten witnesses. (11) Although the defense bar is largely insulated from responsibility for these crimes by discovery statutes and state bar rules, (12) the illegal and unethical use of this material to intimidate--or eliminate--witnesses is an extremely serious problem. (13)

Religious Organizations. Religious organizations often demonstrate a strong preference for self-regulation of members' conduct, resisting governmental interference. In contrast to associates of gangs and criminal organizations, members of religious groups use positions of trust to perpetrate and to cover up crimes. Adverse publicity, loss of reputation, status, public trust and economic power motivate efforts to derail official investigations.

The pattern of sexual abuse and institutional cover-ups by the Catholic Church over the past 30 years has resulted in more than $2.5 billion in settlements in the United States alone. (14) Despite 18 years of allegations that Chicago-area Catholic priest Russell Romano plied boys with alcohol and pornography, before abusing them, (15) Church officials refused to inform law enforcement. One stated "We don't want to be snitches." (16) Other religious organizations have demonstrated similar institutional loyalty. In 2010, a Jewish rabbinical court in Brooklyn forbade the Lubavitch Hasidic community from revealing anything that could "lead to an investigation" ... "by any law enforcement agency." (17) The next year, the court adopted a narrow exception to allow community members to report child sex abuse. (18)

In 2012, Nechemya Wederman, a prominent member of the Williamsburg (Brooklyn) Satmar Hasidic community, was convicted of 59 counts of sexual misconduct. (19) Before trial, a Wederman supporter offered a witness's husband $500,000 in exchange for the witness's silence. (20) Three men were charged with threatening and then removing the kosher certification of a restaurant run by a complaining witness's boyfriend. (21) During trial, four men were arrested after photographing a witness during her testimony and posting them to Twitter. (22)

Members of many groups--social, ethnic and professional--develop similar bonds of loyalty. Police officers, members of the military and others engaged in dangerous professions rely on close bonds to ensure their safety. Many share similar "code of silence" cultures. Although intimidation and coercion by police and prosecutors does occur...

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