Robert L. Ehrlich Jr.’s legislative agenda this year includes a bill that
would give prosecutors broader powers to go after anyone who intimidates or
harms witnesses, a chronic problem in Baltimore that stymies many of the
city’s homicide cases.
The proposed legislation, among other things, would stiffen penalties for
threatening or harming a witness, and allow some out-of-court statements to be
used as evidence at trial.
“Ultimately, witnesses are the most important part of the criminal justice
system,” said Wes Adams, a homicide prosecutor in the Baltimore state’s
attorney’s office, who worked on the bill with the governor’s office.
“Unless we take steps to protect our witnesses, the whole criminal justice
system will crumble.”
The bill is scheduled for a state Senate committee hearing Wednesday.
More Top Picks Best Baratza Coffee Grinder Alternatives
Defense attorneys complain that the bill, if it becomes law, would strip a
defendant of the right to cross-examine a witness and may be unconstitutional.
The bill would:
Increase the penalty for intimidating a witness in a felony case to a
maximum of 20 years.
Allow authorities to separately charge someone with soliciting another
person to threaten or harm a witness or officer of the court.
Allow an out-of-court statement from a threatened witness to be admitted
into evidence if that witness cannot appear at trial.
Automatically place juveniles, age 16 and older, in the adult criminal
justice system if they are charged with intimidating a witness.
Currently, witness intimidation is a misdemeanor that carries a maximum
five-year prison sentence, and the statute is rarely used by prosecutors
because, they say, the cases are difficult to prove and the penalty is paltry.
Adams, the homicide prosecutor, said that in 90 percent of his cases,
witnesses are afraid to testify or lie on the stand.
“If this [bill] passes,” he said, “it could be a powerful piece of
legislation.”
The most critical – and contentious – part of the bill is the exemption to
the hearsay rule, which would allow out-of-court statements from witnesses to
be used at trial if they are not available because they have been threatened
or harmed.
If a witness is assaulted before trial and is incapacitated or unable to be
found, a police officer would be permitted to testify as to what that witness
said out of court about the case.
Currently, that type of testimony would not be admissible because it would
be hearsay.
The bill faces strong objections from defense attorneys, and Michael A.
Millemann, a professor at the University of Maryland School of Law, said such
legislation is “probably unconstitutional.”
“The goal is laudable, but there are too many problems with this approach,”
Millemann said. “The system will encourage people to be unavailable for trial
and encourage police not to find them.”
Baltimore defense lawyer Warren A. Brown said the bill could “open the
floodgate” for false allegations by witnesses who won’t be facing
cross-examination.
“You don’t know the motives of this person, whether he’s an honest person
or a big, fat liar,” Brown said. “You have the right of confrontation and
cross-examination.”
Ehrlich’s director of policy, Joseph M. Getty, said the bill is, in part, a
response to the 2002 arson deaths of Angela Dawson, her husband, Carnell
Dawson, and five of their children.
A drug dealer admitted setting fire to the Dawson house in retaliation for
the family’s repeated calls to police about drug dealing in their
neighborhood.
“As the drug trade intensifies and becomes more violent, there are more and
more examples of this type of intimidation,” Getty said.
“The governor has identified witness and victim intimidation as a
substantially increasing problem in our criminal justice system.”
Adams noted other examples of witness intimidation, including the case
involving Andre L. “Turtle” Chavis, who was convicted last year of killing
Adrian Jenkins because of Jenkins’ role as a witness.
In 1999, Chavis killed a man while Jenkins watched, prosecutors said. But
Jenkins, who was prepared to testify, did not show up in court because he was
pressured by Chavis’ friends.
Chavis was set free, and soon after, Jenkins was killed. Chavis was
convicted of murdering Jenkins a year ago and sentenced to two consecutive
life terms in prison.
More Top Picks Best Washable Rugs For Kitchens
In too many cases, prosecutors say, when witnesses are intimidated, the
case falls apart, the defendant goes free and the subsequent crime of witness
intimidation goes unprosecuted.
“The biggest thing the legislation does,” Adams said, “is give us an
opportunity to prosecute cases that might otherwise be dismissed.”