Fight witness intimidation

February 17, 2005|By Patricia C. Jessamy

THE ESCALATING use of intimidation to silence witnesses in Baltimore City criminal cases is a significant threat to public safety. Every day in courtrooms across Maryland and throughout our nation, threats against and intimidation of witnesses put justice in jeopardy.

In the late 1980s, the proliferation of a new drug of choice, crack cocaine, coaxed by a steady heroin market on Baltimore's street corners combined with an arsenal of illegal guns, created a surge in loosely knit, violent drug-trafficking organizations that used guns to dispense street justice. Today, this violence has a deadly grip on Baltimore, with a corresponding increase in street justice and witness intimidation.

By 1995, law enforcement was scrambling to keep up with a steady rise in homicides and nonfatal shootings. Prosecutors in Baltimore were jolted by the street execution of a witness in a federal drug conspiracy trial. State's Attorney Stuart O. Simms directed me, as his deputy, to create a witness security program that would reach out to witnesses who felt threatened or intimidated.

Since then, the state's attorney's office has seen more and more criminal cases lost to witness intimidation as frightened citizens and communities believe that law enforcement is powerless to protect them against vigilante justice. This street justice that silences witnesses who cooperate with law enforcement and labels them "snitches" was captured recently on a DVD that surfaced on a West Baltimore drug corner. Threats and intimidation against witnesses must be addressed as an immediate law enforcement priority.

Gov. Robert L. Ehrlich Jr. has submitted legislation to the General Assembly, with broad bipartisan support, that is vital to waging a successful war against this threat to the rule of law.

The provisions of this legislation not only would provide meaningful punishment for those who engage in acts of witness intimidation but also would remove the evidentiary incentive for doing so. The bill reclassifies acts of witness intimidation as a felony offense carrying a maximum sentence of 20 years in prison.

More important, this bill would provide prosecutors statewide with the critical tool used by federal prosecutors to ensure that a defendant cannot benefit from acts that are intended to prevent the availability of a state's witness. The tool is known as the "forfeiture by wrongdoing" exception to the hearsay rule. It gives the state a level playing field when it can prove that a defendant engaged in or agreed to wrongdoing that was intended to and does prevent a witness from appearing for trial.

The rule gives a strong disincentive to intimidate witnesses because the state can ask the trial judge to admit the witness' prior oral or written statement.

A statement offered in evidence under the forfeiture by wrongdoing rule is not automatically admissible. Rather, the trial judge must first determine whether the facts of the case warrant application of the rule and then must subject the statement to other reliability requirements now existing in the rules of evidence.

U.S. Magistrate Judge Paul W. Grimm testified before the state Senate Judicial Proceedings Committee last month that the legal precedent for the forfeiture by wrongdoing rule can be traced to 17th- century English law. He said the rule has been applied in the federal Courts of Appeals for more than 20 years and since 1997 as a specific provision within the Federal Rules of Evidence. Every federal circuit that has considered the issue has upheld the constitutionality of the rule. It is used in federal courts nationwide. At least 10 states have also incorporated the rule into their rules of evidence.

For too long, violent criminals, through acts of witness intimidation, have been engaging in a reign of terror against the good people of our communities. Now is the time -- in this legislative session -- for swift and substantive action by the General Assembly. Opponents no longer can legitimately challenge the constitutionality of this legislation.

Passage of Governor Ehrlich's witness intimidation legislation would send a clear message to violent criminals: You may succeed in suppressing the presence of a witness in court, but you will not succeed in silencing his or her voice. You may suppress the person, but you will not suppress the truth. Despite your cowardly acts of intimidation, justice will be done and shall be served. The rule of law will ultimately prevail.

Patricia C. Jessamy is state's attorney for Baltimore City.

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