Only a handful of states have comprehensive witness protection programs and most do nothing to protect witnesses. Colorado's program has a $50,000 a year budget - cut from $100,000 this year by state lawmakers - which can be used to buy witnesses bus tickets or help them move to a new apartment.But in the four years before [two local witnesses] were killed, the state spent an average of $29,895 a year protecting witnesses statewide, less than the amount Denver spends to plant flowers.
Tuesday, December 22, 2009
What solutions exist for witness intimidation on both sides in criminal cases?
Catching up on my newspaper and blog reading this morning, I ran across two high-profile stories from outside of Texas on the subject of witness intimidation that deserve Grits readers attention:
By Criminals: From the Philadelphia Inquirer, there's a must-read series titled "Witnesses fear reprisal and cases crumble." According to this report, "Witness intimidation pervades the Philadelphia criminal courts, increasingly extracting a heavy toll in no-show witnesses, recanted testimony - and collapsed cases." A former prosecutor sums up the problem with this statement: "When people would ask me if I could guarantee their safety, I would say, 'Unfortunately, I cannot.'" (Just a taste of a massive series, btw, the whole thing is well worth a read.)
By Prosecutors: Meanwhile, via TalkLeft, I was fascinated to read a ruling (pdf) from U.S. District Court Judge Cormac J. Carmey dismissing a federal prosecution against William Ruehle, former CEO of Broadcom, finding that federal prosecutors had "intimidated and improperly influenced" three witnesses. In one particular instance, "The government met with [the witness] on 26 separate occasions and subjected her to grueling interrogation during which the government interjected its views of the evidene and, at least on one occasion, told her that she would not receive the benefits of cooperation unless she testified differently than she had initially in an earlier session." Jeralyn called Carmey's ruling the "strongest condemnation of prosecutorial abuse I've ever read."
Both types of witness intimidation are serious, endemic problems, though the brand being discussed in Philadelphia is much more frequently criticized. The Denver Post ran an also-excellent series on the topic a couple of years ago, finding that:
Most states including Texas and apparently Pennsylvania don't have comprehensive witness protection programs analogous to the feds. District Attorneys could conceivably spend asset forfeiture funds for that purpose, but I've never known one to do so. (For that matter, if I had my druthers, we'd be spending the Merida Initiative money in Mexico on witness protection instead of buying the Mexican Army helicopters.)
Regarding witness intimidation by prosecutors, that's arguably just as common and insidious a problem - one that's as difficult to solve as witness intimidation by crooks because prosecutors enjoy massive power and discretion combined with near-complete freedom from liability. In such a setting, with a mindset that one is fighting for the righteous cause of "justice," the line can be grey indeed between liberty and license.
In Florida this year, their legislature passed "Rachel's Law" which, among other protections, requires that law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant." That's a start.
But the witnesses being coerced in the Broadcom case were wealthy, educated people, presumably with high-dollar attorneys, and they still could not stand up to the overweening power prosecutors brought to bear to secure what appears to have been false testimony. Judge Carmey said she had "absolutely no confidence" that one witness' statements reflected her own memory as opposed to "what the government thought her recollection should be." (Jeralyn's right, you really must read the whole thing to get a sense of how disgusted the judge is with the US Attorneys' alleged misconduct.) Besides having strong judges willing to stand up to abuse, I don't know how you police such behavior.
Let me know in the comments: Which type of witness intimidation do you think is more common? Which is the greater danger? What solutions might exist for each type of witness intimidation besides traditional witness protection programs and strengthening the right to counsel?