Witness protection bill needs to draw very fine distinctions

February 02, 2005|By GREGORY KANE

THERE GOES that darned Constitution getting in the way again. Don't you hate it when that happens?

So just when we thought a bill in the state legislature that would increase the penalty for witness intimidation might pass, along come those picky defense attorneys talking about how one part of the bill might be -- I hate to used the dreaded "u" word here -- unconstitutional.

At issue is the clause of the bill that would have Maryland adopt the "hearsay exception" -- which sounds like one of those lawyer terms that are meant to, and often do, confuse laymen. But Margaret Burns, a spokeswoman for the Baltimore state's attorney's office, did her best to simplify the matter.

"We want what the federal courts already have," Burns said. "We want the hearsay exception rule."

The way Burns explained it, the hearsay exception helps in cases where witnesses have been intimidated. Their statements that were given to police early in the investigation -- when their memories are most vivid and reliable -- are admitted into evidence later, even if they have been intimidated and are afraid to show up in court.

Burns said the hearsay exception at the federal level has been upheld by courts. But that doesn't cut any ice with another Margaret -- as in defense attorney Margaret Mead, now in a dead heat with A. Dwight Pettit as the best lawyer in the area -- who said the hearsay exception can be and has been used to "circumvent the confrontation clause."

That may sound like more lawyerese, but the confrontation clause is actually one of our most cherished constitutional freedoms. It says that those accused of crimes have the right to confront their accusers. The hearsay exception would prevent that.

"The most important aspect of a trial is the confrontation clause," Mead said. "It's easy to say anything about anybody outside a courtroom."

You don't have to read between the lines to see that Mead is implying that some witnesses aren't exactly solid citizens. She said it outright.

"I've had witnesses make wild, outlandish statements to police," Mead said. "Some of these witnesses are ... lying. Often the pool of witnesses is the pool of defendants. We lawyers have a joke that goes, `Today he's the victim, tomorrow he's the [defense lawyer's] client.'"

One inside joke among lawyers sums up Baltimore's problem: We are cursed with a lumpenproletariat that seems hell-bent on wiping itself out, and taking the rest of us along with it in the process. The only thing wrong with that analysis is that the criminal element we're talking about might have to rise several classes to even qualify as lumpenproletariat.

These are not the most reliable folks in the world. They're the ones talked about in the Stop Snitching DVD -- career criminals who, when they get caught, roll on their crime partners and every other reprobate within a 100-mile radius.

And at times, they've sent innocent people to jail. Anybody remember a guy named Michael Austin, who spent 27 years in prison based on the bogus testimony of a jailhouse snitch? Brady Spicer, an Annapolis man, spent seven years behind bars after the prosecution's star witness -- another jailhouse snitch -- falsely accused him of a near-fatal beating of a businessman.

Both jailhouse snitches later recanted their testimony. (Word has it that at least one of them did so when he was near death, probably just in case there really is a God out there somewhere.) You can see the slippery slope we may be on if we change the rules of evidence with characters like these.

But what kind of slope are we on when there are 31 homicides in 31 days?

And what about those witnesses who aren't involved in the criminal lifestyle? What about Edna McAbier, whose home was firebombed because she had the audacity to want a neighborhood free of drug-dealing, homicidal pistoleros? What about Carnell and Angela Dawson, who were firebombed and died, along with their five children, for wanting the same thing?

I asked Mead if she had an alternative to the hearsay exception many want included in the proposed witness intimidation legislation. As prepared for an impromptu question as she is when she goes to court, Mead had a ready answer.

"There needs to be a much stronger penalty for witness intimidation," Mead said, which the bill provides for, "and much better investigation of witness intimidation. There needs to be a better witness protection program."

Mead added one caveat.

"Make sure that the person is really being intimidated."

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