It's an exception, not an attack on the Bill of Rights

April 09, 2005|By GREGORY KANE

THE KEY WORD was exception, and some of our state legislators and defense attorneys acted as if they didn't know the meaning of the word.

They do, of course. You don't graduate from college and law school and pass the bar exam without knowing what a simple word like exception means.

But to refresh the memories of those who had objections to the words "hearsay exception" in the witness intimidation legislation - or what's left of it after the House of Delegates passed the bill yesterday - here's a definition from Random House Webster's Unabridged Dictionary:

"An instance or case not conforming to the general rule."

All Baltimore State's Attorney Patricia C. Jessamy and Gov. Robert L. Ehrlich Jr. were asking for was a law allowing statements from witnesses too scared to testify in court to be admitted if they were found to have been intimidated. Opponents, including Prince George's County Del. Joseph Vallario, chairman of the House Judiciary Committee, and a slew of defense lawyers went all Sixth Amendment on us.

"Defendants have a right to confront their accusers," they said. "The hearsay exception violates the confrontation clause of the Sixth Amendment."

About a week ago, a group of defense attorneys gathered on the steps of the Clarence M. Mitchell Jr. Courthouse to unequivocally denounce the witness intimidation bill's hearsay exception provision.

"We have gathered to announce our vehement disapproval of the bill now pending in Annapolis that would deprive citizens of this city of the right to confront accusers," attorney Warren A. Brown said at the news conference.

"This is a terrible bill," added attorney William H. Murphy Jr., "because the right to confront witnesses is so fundamental."

Both men are right about the right to confront accusers. But both are wrong if they think that any of the rights mentioned in the Bill of Rights is absolute.

We know the First Amendment right of freedom of speech isn't absolute, as Supreme Court Justice Oliver Wendell Holmes Jr. said in his famous "shouting fire in a theater" analogy. The First Amendment doesn't offer protection against slander or libel, either.

Those instances are called "exceptions." We've come to live with them, understand them, even embrace them. And if we can understand that the First Amendment doesn't protect you from shouting fire in a theater, we should certainly be able to understand that the Sixth Amendment doesn't allow your myrmidons to kick in the front door of an apartment, point a gun in the face of an 11-year-old boy and threaten his mother so her fiance - and the boy's father - won't testify against you in court.

That's what happened in January 2004 to the son and fiancee of Anthony Black, a Baltimore man who, despite the intimidation, testified against a drug gang anyway.

The Sixth Amendment confrontation clause doesn't give you the right to throw bricks at a woman's house, urinate on her front steps, slash her tires, scratch obscenities on her car or firebomb her house, either.

That's what police say happened to Edna McAbier, a community activist whose Harwood home was attacked in January because she had the guts to tell drug dealers they couldn't sling their dope in her neighborhood.

Legislators in Annapolis - especially those on the House Judiciary Committee -could use a gut check and a reality check about how witness intimidation works on the streets of Baltimore and surrounding counties.

Also in need of a reality check may be Brown and Murphy. At the news conference last week, Brown said that witness intimidation "is not that much of a problem."

Brown should tell that to McAbier. He should tell it to Black, his son and his fiancee. He should tell it to Tashiera Peterson, who was only 11 when a man charged with murder is accused of putting a contract on her life so she wouldn't testify in a trial against him.

Murphy fretted that "innocent people can be convicted very easily if this [witness] intimidation bill is passed."

The esteemed attorney obviously buys the notion that it's better to let 100 guilty men go free than to convict one innocent man. That's a noble philosophy, no doubt uttered by someone who didn't have to face the reality of living in Baltimore.

Letting witness intimidation run amok will result in murderers walking the streets with impunity. Once they murder, intimidate witnesses and get away with it, they're free to murder again. And who knows who their next victim will be?

You. Me. The chairman of the House Judiciary Committee.

Even a defense attorney.

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