Preventing Gang and Drug-Related Witness Intimidation. Series: NIJ Issues and Practices Published: November 1996 262 pages 451,950 bytes ------------------------------ U.S. Department of Justice Office of Justice Programs National Institute of Justice Issues and Practices Preventing Gang and Drug-Related Witness Intimidation ------------------------------ Some figures, charts, forms, and tables are not included in this ASCII plain-text file. To view this document in its entirety, download the Adobe Acrobat graphic file available from this Web site or order a print copy from NCJRS at 800-851-3420. ------------------------------ About the National Institute of Justice The National Institute of Justice (NIJ), a component of the Office of Justice Programs, is the research and development agency of the U.S. Department of Justice. NIJ was established to prevent and reduce crime and to improve the criminal justice system. Specific mandates established by Congress in the Omnibus Crime Control and Safe Streets Act of 1968, as amended, and the Anti-Drug Abuse Act of 1988 direct the National Institute of Justice to: o Sponsor special projects, and research and development programs that will improve and strengthen the criminal justice system and reduce or prevent crime. o Conduct national demonstration projects that employ innovative or promising approaches for improving criminal justice. o Develop new technologies to fight crime and improve criminal justice. o Evaluate the effectiveness of criminal justice programs and identify programs that promise to be successful if continued or repeated. o Recommend actions that can be taken by Federal, State, and local governments as well as by private organizations to improve criminal justice. o Carry out research on criminal behavior. o Develop new methods of crime prevention and reduction of crime and delinquency. The National Institute of Justice has a long history of accomplishments, including the following: o Basic research on career criminals that led to the development of special police and prosecutor units to deal with repeat offenders. o Research that confirmed the link between drugs and crime. o The research and development program that resulted in the creation of police body armor that has meant the difference between life and death to hundreds of police officers. o Pioneering scientific advances such as the research and development of DNA analysis to positively identify suspects and eliminate the innocent from suspicion. o The evaluation of innovative justice programs to determine what works, including drug enforcement, community policing, community anti-drug initiatives, prosecution of complex drug cases, drug testing throughout the criminal justice system, and user accountability programs. o Creation of a corrections information-sharing system that enables State and local officials to exchange more efficient and cost-effective concepts and techniques for planning, financing, and constructing new prisons and jails. o Operation of the world's largest criminal justice information clearinghouse, a resource used by State and local officials across the Nation and by criminal justice agencies in foreign countries. The Institute Director, who is appointed by the President and confirmed by the Senate, establishes the Institute's objectives, guided by the priorities of the Office of Justice Programs, the Department of Justice, and the needs of the criminal justice field. The Institute actively solicits the views of criminal justice professionals to identify their most critical problems. Dedicated to the priorities of Federal, State, and local criminal justice agencies, research and development at the National Institute of Justice continues to search for answers to what works and why in the Nation's war on drugs and crime. ------------------------------ U.S. Department of Justice Office of Justice Programs National Institute of Justice Preventing Gang- and Drug-Related Witness Intimidation by Peter Finn and Kerry Murphy Healey November 1996 ------------------------------ Issues and Practices in Criminal Justice is a publication series of the National Institute of Justice. Each report presents the program options and management issues in a topic area, based on a review of research and evaluation findings, operational experience, and expert opinion on the subject. The intent is to provide information to make informed choices in planning, implementing, and improving programs and practice in criminal justice. ------------------------------ National Institute of Justice Jeremy Travis Director Samuel C. McQuade Program Monitor Advisory Panel A. Franklin Burgess, Jr. Deputy Presiding Judge Criminal Division Superior Court of the District of Columbia 500 Indiana Avenue, NW Room 2500 Washington, DC 20001 Michael O. Freeman Hennepin County Attorney C200 Hennepin County Government Center Minneapolis, MN 55487 Thomas O. Mills Deputy Chief Kansas City, Missouri, Police Department Police Headquarters 1125 Locust Street Kansas City, MO 64106 John J. Pogash 9954 Mallow Street Manassas, VA 22100 James W. Rice Special Agent Federal Bureau of Investigation Violent Crimes and Gang Unit 1900 Half Street, SW Washington, DC 20535 ------------------------------ Prepared for the National Institute of Justice, U.S. Department of Justice by Abt Associates Inc., under contract #OJP-94-C-007. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. ------------------------------ The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. ------------------------------ TABLE OF CONTENTS FOREWORD ACKNOWLEDGMENTS EXECUTIVE SUMMARY CHAPTER 1: THE NATURE AND EXTENT OF WITNESS INTIMIDATION What Is Witness Intimidation? - Types of Intimidation - Gang-Inspired Fear: A Particularly Pervasive Problem - Fear Is Not the Only Reason Witnesses Do Not Testify How Serious Is Witness Intimidation? Forms of Intimidation - Physical Violence - Explicit Threats of Physical Violence - Indirect Intimidation - Property Damage - Courtroom Intimidation - Other Forms of Intimidation The Primary Actors in Witness Intimidation - Types of Perpetrators - The Most Likely Targets of Intimidation - When Intimidation Occurs Conclusion Endnotes PART I COMPONENTS OF A COMPREHENSIVE WITNESS SECURITY PROGRAM CHAPTER 2: TRADITIONAL APPROACHES TO WITNESS SECURITY Requesting High Bail Vigorous Prosecution of Intimidators - Charging Practices - Advantages and Drawbacks of Prosecution Witness Management Basic Victim/Witness Assistance Program Service Conclusion Endnotes CHAPTER 3: RELOCATING INTIMIDATED WITNESSES Emergency and Short-Term Relocation - How Emergency and Short-Term Relocation Procedures Work in Three Jurisdictions - Hotels and Motels - Short-Term Relocation With Out-of-Town Family Members or Friends - Social Services and School Enrollment - Drug Treatment for Addicted Witnesses - How Long Must a Witness Remain Relocated? Permanent Relocation - Public Housing Programs - PHA Discretion in Assigning Housing Units - Some PHAs Provide Expedited Processing - Suggestions for Working With PHAs Conclusion Endnotes CHAPTER 4: PREVENTING INTIMIDATION IN COURTROOMS AND JAILS Intimidation in the Courtroom - Why Many Judges Are Reluctant To Act - Actions Judges Can Take - The Role of Bailiffs - Motivating Judges To Act - Court-Related Actions Prosecutors and Police Can Take on Their Own Intimidation in Jails and Prisons Conclusion Endnotes CHAPTER 5: REDUCING COMMUNITY-WIDE INTIMIDATION Does Community-wide Intimidation Require Attention? Community Policing and Prosecution Strategies Community Education and Empowerment Public Relations Conclusion Endnotes PART II DEVELOPING OR IMPROVING THE PROGRAM CHAPTER 6: DEVELOPING A COMPREHENSIVE WITNESS SECURITY PROGRAM Why a Formal Structure Is Preferred 1. Getting Started: The Organizing Committee - Conduct an Assessment of the Problem - Identify Appropriate Program Features - Identify Needed and Available Resources - Decide on the Composition of the Operational Team 2. Program Oversight: The Operational Team - Reviewing Witness Security Requests - Overseeing Program Operations 3. Coordinating Services: The Program Administrator - Witness Security Requests - Coordination of Witness Services 4. Case Investigation: Police Unit or District Attorney Investigators 5. Law Enforcement: The Indispensable Partner in the Witness Security Effort 6. Cooperation: Coordinating Services With Other Agencies - Identify a Point Person Within Each Agency - Gain Support From the Top - Develop Memorandums of Understanding Conclusion: Putting the Pieces Together CHAPTER 7: LEGAL ISSUES Preventing Courtroom Intimidation - Exclusion of the Public From the Courtroom - Using Hearsay Testimony From Law Enforcement Officers in Lieu of Direct Witness Testimony - Impeaching Inconsistent Witness Testimony - Keeping Witness and Jury Information Confidential Legislation Designed To Prevent Intimidation Gang Suppression Initiatives Statutory Aids to Combating Community-wide Intimidation - Using Civil Remedies: Nuisance Abatement - Drug Loitering Ordinances - RICO Prosecutions Liability Issues: Witness Safety and Witness Misconduct - Governmental Responsibility To Protect Threatened Victims and Witnesses - Governmental Liability for Actions of Protected Witnesses Conclusion Endnotes CHAPTER 8: SOURCES OF HELP Organizations Potential Funding Sources Literature - Witness Security - Gangs Individuals APPENDIXES Appendix A Sample Program Guidelines Appendix B Sample Program Forms (Some of the forms in Appendix B are not available in this ASCII file) Appendix C Sample Legislation Appendix D Sample Evaluative Reports (Appendix D is not available in this ASCII file) Appendix E Sample Public Housing Authority Procedures for Expediting Transfers of Intimidated Witnesses INDEX LIST OF FIGURES Figure 3-1: Assessing Relocation Options Figure 6-1: Comprehensive Witness Security Program Model Figure 6-2: Respondents' Perceptions Concerning the Effectiveness of Principal Approaches to Witness Security by Type of Intimidation Figure 6-3: Program Implementation Checklist NOTE: Only figure 6-3 is available in this ASCII file. ------------------------------ FOREWORD Many police officers and prosecutors have become increasingly frustrated by their inability to investigate and prosecute cases successfully when key witnesses refuse to provide critical evidence or to testify because they fear retaliation by the defendant or his family and friends. This problem is particularly acute, and apparently increasing, in gang- and drug-related criminal cases. Witnesses' refusal to cooperate with investigations and prosecutions should be a major concern: it adversely affects the justice system's functioning while simultaneously eroding public confidence in the government's ability to protect citizens. A number of law enforcement agencies and prosecutors' offices across the country have already taken steps to prevent witness intimidation. These include increased use of traditional witness security measures such as routinely requesting high bail for known intimidators, aggressively prosecuting reported intimidation, closely managing key witnesses, and expanding victim/witness assistance services. Several jurisdictions have also adopted innovative approaches, such as emergency and short-term relocation of witnesses (sometimes in collaboration with local public housing authorities), methods to prevent intimidation in the courthouse and jails, and outreach programs to reduce community-wide fear and intimidation. This Issues and Practices report describes how several jurisdictions have carried out these victim/witness security strategies. It offers a blueprint for combining these discrete approaches into a comprehensive, structured program to protect witnesses and help ensure their cooperation with the justice system. Investigators and prosecutors can benefit by the approaches discussed here -- which their colleagues have undertaken -- to help ensure that offenders do not go unpunished and communities do not lose faith in the justice system. Jeremy Travis Director National Institute of Justice ------------------------------ ACKNOWLEDGEMENTS We wish to thank the many individuals from the jurisdictions chosen as study sites who patiently answered our questions and sent us materials about their efforts to prevent witness intimidation. In particular, we thank Patricia C. Jessamy in Baltimore; Daniel C. Voogt in Des Moines, Iowa; Walter Arsenault in New York City; Harold Boscovich in Oakland, California; Earl Sanders in San Francisco; and David Schertler and Steve T'Kach in Washington D.C. We also thank Gary Balzer, Sharon May, and Donald Todd in Baltimore; Blaine Tellis, Dennis O'Donnell, and James Rowley in Des Moines; Teresa Lesney, Barbara J. Schell, and Victoria Villegas in Las Vegas; Michael Genelin in Los Angeles; James H. Anderson, Stanley Paul Golde, Ralph M. Lacer, and Theodore Schwartz in Oakland, California; Micky Cook and Paul Scoggin in Minneapolis; Tom Allessandro, Judy Osoria, and Fred Watts in New York City; Marcia Thomas Bayne, Richard Carroll, and Charles Grant in Philadelphia; G. Wayne Cox in Prince Georges County, Maryland; John Edward Dupuy, Alfred Giannini, Ronan Byrne, and Veronica Zecchini in San Francisco; and Mike Berry, Cathy Breeden, John Cleveland, Kenneth J. Darnall, Mary Lou Leary, Jeffrey Stowe, and Kathryn Turman in Washington, D.C. The following advisory board members provided very useful comments in the course of a one-day meeting in Washington, D.C., periodic phone consultations, and reviews of the report outline and draft report: A. Franklin Burgess, Jr., Michael O. Freeman, Thomas O. Mills, John J. Pogash, and James W. Rice. Samuel C. McQuade, Program Manager for the project at the National Institute of Justice (NIJ), provided constant support and beneficial advice throughout the project. Cheryl Crawford, Contracting Officer's Technical Representative at NIJ, and Virginia Baldau, Director of NIJ's Program Development Division, Office of Development and Dissemination, provided helpful suggestions for improving the report. Ted Hammett of Abt Associates made useful comments. Mary-Ellen Perry masterfully coordinated production, and Wendy Sanderson expertly desktopped the final publication. Peter Finn Abt Associates Inc. Cambridge, Massachusetts Kerry Murphy Healey, Ph.D. Consultant to Abt Associates Inc. Beverly, Massachusetts ------------------------------ EXECUTIVE SUMMARY This report focuses on efforts to prevent witness intimidation, in gang- and drug-related cases -- efforts that prosecutors' offices and law enforcement agencies have developed separately from their standard victim assistance programs. The Nature and Extent of Witness Intimidation Two forms of witness intimidation are hampering the investigation and prosecution of crime throughout the country: o overt intimidation, when someone does something explicitly to intimidate a witness; and o implicit intimidation, when there is a real but unexpressed threat of harm, as when rampant gang violence creates a community-wide atmosphere of fear. Most overt intimidation occurs only when there is a previous connection between the defendant and the victim, and when they live relatively close to each other. Components of a Comprehensive Witness Security Program Traditional Approaches to Witness Protection Historically, prosecutors and police investigators have used four approaches to witness protection: o requesting high bail to put and keep intimidators behind bars, o prosecuting intimidators vigorously, o making a conscientious effort to manage witnesses, and o enhancing basic victim/witness program services. All too often, these traditional approaches are not sufficient to prevent intimidation or actual harm to witnesses, or to motivate them to testify. Nevertheless, innovative twists can make these measures more effective, and using them makes a symbolic statement that the criminal justice system takes witness intimidation seriously. Relocating Intimidated Witnesses Most innovative witness security programs include provisions for relocating genuinely endangered witnesses, and most of the prosecutors and law enforcement officers interviewed for this study report that confidential witness relocation is the core protection service that all programs need to provide. Respondents identified three levels of relocation: o emergency relocation -- placing the witness and his or her family in a hotel or motel for up to a few weeks; o short-term or temporary relocation -- using a hotel or motel for up to a year or placing the witness with out-of-town relatives or friends; and o permanent relocation -- moving the witness between public housing facilities or providing a one-time grant to reestablish the witness in new private housing. Because most relocations involve witnesses living in public housing, prosecutors and police investigators have implemented a variety of approaches to working with local housing authorities to arrange the necessary transfers. Preventing Intimidation in Courtrooms and Jails Gang members and associates of defendants often appear in court in order to frighten witnesses into not testifying. Since the threat may be very subtle and because judges often feel that the constitutional requirement of a public trial prevents them from removing such individuals from the courtroom, it is often difficult to stop this kind of intimidation. Nevertheless, a number of judges have taken steps to remove gang members from the courtroom, to segregate gang members and other intimidating spectators, or to close the courtroom entirely to spectators. Incarcerated witnesses who are targets for intimidation in gang- and drug-related cases require special protection, including separation from the defendant within the same correctional facility or transfer to a nearby correctional facility, and separate transportation to court to testify. Reducing Community-wide Intimidation An atmosphere of community-wide intimidation, even when there is no explicit threat against a particular person, can also discourage witnesses from testifying. Prosecutors and police investigators try to reduce community-wide intimidation through community- based policing and prosecution strategies, vertical prosecution, and other strategies. Developing or Improving the Program Developing a Comprehensive Witness Security Program Whenever possible, jurisdictions can combine the range of witness protection approaches discussed above into a coordinated, comprehensive, and formal witness security program. Prosecutors and police investigators recommend that a witness security program be structured carefully in order to maximize the use of shared resources, reduce prosecutor and police investigator involvement with time-consuming witness management tasks, and minimize civil liability of the prosecutor's office and police department. To achieve these goals, a comprehensive witness security model includes an organizing committee, an operational team, a program administrator, and case investigators. Formal interagency cooperation among the groups involved in protecting witnesses is essential to achieving these goals. Legal Issues Prosecutors often have statutory authority to prevent intimidation through techniques ranging from requesting the exclusion of gang members from the courtroom to impeaching the prosecution's own witnesses if they change their testimony between deposition or preliminary hearing and trial. To avoid liability for the safety or misconduct of witnesses participating in witness security programs, experts strongly advise that no promises be made to witnesses unless they can be kept and that any promises that are made be cleared first with whoever has authority to comply with the promises. Sources of Help This study has found written materials, organizations, and funding sources that can provide guidance and support for the development of witness protection programs. In addition, several experienced practitioners are available to assist in setting up or improving a comprehensive witness security effort. ------------------------------ CHAPTER 1 THE NATURE AND EXTENT OF WITNESS INTIMIDATION Key Points o Because in most jurisdictions the problem of witness intimidation has only recently begun to have a major impact on the investigation and prosecution of crime, there appear to be few comprehensive, coordinated programs that address the issue. However, jurisdictions can plan a comprehensive and formal program by taking advantage of the discrete efforts that a number of law enforcement agencies and county attorney's offices have already implemented. o Prosecutors, police officers, judges, and victim advocates agree that witness intimidation is widespread, increasing, and having a serious impact on the prosecution of crime across the entire country. o There are two principal types of witness intimidation: -- overt intimidation, when someone does something explicitly to intimidate a witness, often in connection with a single case; and -- implicit intimidation, when there is a real but unexpressed threat of harm, as when a history of gang violence creates a community-wide atmosphere of fear. Sometimes witnesses feel intimidated even when they are in no actual danger. o In addition to fear, a witness may be deterred from testifying because of strong community ties, a deep-seated distrust of law enforcement, or a personal history of criminal behavior. o Intimidation takes many forms: it may involve physical violence, explicit threats of physical violence, implicit threats, property damage, and intimidation in the courtroom or from the jail. o Most explicit intimidation is said to occur only when there is a previous connection between the defendant and the victim and they live relatively close to each other. o Intimidation is most likely to occur between arrest and trial -- especially as the trial date approaches -- but it also occurs frequently during the trial itself. What Is Witness Intimidation? Witness intimidation -- which includes threats against the victims of crimes -- strikes at the root of the criminal justice system by denying critical evidence to police investigators and prosecutors and by undermining the confidence of whole communities in the government's ability to protect and represent them. Types of Intimidation There are two principal types of witness intimidation: (1) Overt intimidation occurs when someone does something explicitly to intimidate a witness into withholding, changing, or falsifying testimony: o The sister of a defendant slaps a witness outside the courtroom and says she will kill her if she testifies. o Two gang associates of a defendant drive by a witness's apartment, slash his car tires, and smash the windshield. o An incarcerated defendant puts the word out on the street through fellow gang members that a murder witness will be killed if he cooperates with the prosecution. (2) Implicit intimidation involves a situation in which there is a real but unexpressed (or indirectly expressed) threat of harm to anyone who may testify. Implicit intimidation is often community- wide in nature and is characterized by an atmosphere of fear and noncooperation generated by a history of violent gang retaliation against cooperating witnesses or by a cultural mistrust of the criminal justice system: o A drug-related shooting occurs at a softball game; three players are killed in full view of spectators, but no cooperative witnesses can be found. o Two individuals suspected of stealing money from the homes of Vietnamese immigrants are arrested, but the victims all claim they did not see the faces of the perpetrators. Sometimes witnesses feel intimidated even when there is no actual danger. Threat assessments by police and prosecutors do not always support the fears of potential witnesses, as when the defendant and his associates do not have a history of violence or the witness lives and works outside their neighborhood. As J. Ramsey Johnson, Assistant U.S. Attorney for the District of Columbia, Superior Court Division, states, "Of course, all claims of intimidation must be taken seriously enough at least to conduct a threat assessment. Occasionally, there is actual witness intimidation . . . but while actual witness intimidation is obviously a serious problem, it is the general fear of retaliation on the part of virtually all of our witnesses that presents an even bigger problem. In almost every case we prosecute involving violence, there is at least some level of apprehension on the part of the witness." Overt intimidation, implicit intimidation, and misperceived intimidation may operate separately or in tandem. Furthermore, each instance of actual intimidation or violence against witnesses by gangs or drug-selling groups promotes the community-wide perception that any cooperation with the criminal justice system is dangerous. Overt intimidation, because it may be publicized widely in the press or by word of mouth, may contribute to an exaggerated perception of the risk of injury. Many of the prosecutors and police inspectors contacted for this study reported that, as bad as intimidation may be, the public often overestimates both its likelihood and the danger it represents. Moreover, community-wide and misperceived intimidation can be as harmful to witness cooperation as explicit threats. A public perception that the criminal justice system cannot protect the citizens of a community is as effective in destroying the ability of police investigators and prosecutors to do their jobs as any specific threat. As a result, prosecutors, police administrators, and victim/witness program administrators need to prevent all types of intimidation. Gang-Inspired Fear: A Particularly Pervasive Problem Both case-specific and community-wide fear of retaliation are often fed by the fear that incarcerated gang members will return quickly to the community after serving brief sentences or will be able, from behind bars, to arrange for friends or family members to threaten potential witnesses. Because connections between incarcerated gang members and neighborhood gangs are often uninterrupted, most witnesses no longer feel that imprisonment of the defendant pending trial, or even after conviction, can ensure their safety in the community. Prosecutors note that the mere fact that a crime is gang-related can be sufficient to prevent an entire neighborhood from cooperating. This type of community-wide intimidation is especially frustrating for prosecutors and police investigators because, while no actionable threat is ever made in a given case -- thereby precluding conventional responses -- witnesses and victims are still discouraged from testifying. Given these circumstances, this report goes beyond recommending measures for countering explicit gang- related intimidation to provide suggestions for building community trust in the criminal justice system through community policing, community prosecution, and outreach to community groups interested in reclaiming ownership of their neighborhoods and housing developments from gang members and drug dealers (see chapter 5, "Reducing Community-wide Intimidation"). Fear Is Not the Only Reason Witnesses Do Not Testify Police and prosecutors suggest that fear is only one of several factors that may deter witnesses from testifying; strong community ties and a deep- seated distrust of the criminal justice system can also be formidable barriers to cooperation. Many of the communities in which gangs operate are worlds unto themselves -- places where people live, attend school, and work all within a radius of only a few blocks beyond which they rarely venture. As a result, victims and witnesses are often the children of a defendant's friends or relatives, members of the same church as the defendant, or classmates or neighbors. Furthermore, community residents may regard many of the crimes for which witnesses are sought as private "business matters" among gang members or drug dealers, rather than as offenses against the community which should inspire willing civic participation in the process of law enforcement. To many, the police are "outsiders" who do not understand or care about their problems. At the same time, prosecutors and police investigators uniformly report that most of the key witnesses who need their protection in gang- and drug-related cases are themselves "bad guys" -- or, as is often said, "today's witness is tomorrow's suspect." Some witnesses are even said to be "commuter victims" -- drug dealers and gang members who were on their way to committing a crime when they were victimized. These individuals are often unwilling to testify not necessarily because they fear retaliation but because they want to avoid any contact with the criminal justice system if there are (real or imagined) outstanding warrants against them, if they think they might be arrested for having broken the conditions of their probation or parole, of if they have developed a lifelong dislike for and mistrust of police officers and prosecutors. Fear of gang retaliation among honest citizens in gang-dominated neighborhoods forces prosecutors and police to rely increasingly on these unwilling and perhaps tainted witnesses -- including incarcerated witnesses and co-defendants -- for testimony in gang cases. Prosecutors in larger jurisdictions estimate that as few as 5 percent of witnesses requiring security are so- called innocent witnesses, that is, people with no prior contact with the criminal justice system as suspects or offenders. Prosecutors and police investigators interviewed for this study also report that many members of some minority and ethnic groups avoid cooperating with the criminal justice system for cultural reasons, including a sense of group loyalty that makes them reluctant to testify against members of their own culture. In particular, recent Asian immigrants who have experienced repression at the hands of the law enforcement systems in their countries of origin may be apprehensive that the American criminal justice system will be similarly unresponsive, and illegal immigrants from all cultures may be reluctant to have contact with law enforcement because they are vulnerable to the threat of deportation. Fortunately, some jurisdictions report that newly initiated outreach efforts with minority populations can reduce these obstacles to cooperation. How Serious Is Witness Intimidation? No one knows the precise extent of witness intimidation because only limited scientific research has been conducted on the problem.[1] However, most of the prosecutors, police officers, judges, and victim advocates interviewed for this report agreed that witness intimidation is widespread, that it is increasing, and that it seriously affects the prosecution of violent crimes. A 1990 study by the Victim Services Agency of New York City found that 36 percent of victims and witnesses interviewed in the Bronx Criminal Court in 1988 had been threatened, and 57 percent of those who had not been threatened feared reprisals; 71 percent of all the witnesses interviewed said they would feel threatened if the defendants were to be released on bail.[2] The problem is prevalent in many parts of the country, not just in New York City: prosecutors and police administrators from such heartland cities as Des Moines, Tulsa, and Minneapolis also report serious problems with witness intimidation. According to Daniel Voogt, an assistant county attorney in Polk County, Iowa, "The number of gang cases is definitely growing here, and there is more intimidation than ever before." Witness intimidation and its debilitating impact on prosecution are not new problems.[3] However, a number of prosecutors and police investigators report that the problem has worsened and spread dramatically with the advent of crack cocaine and the growth of drug gangs in many urban centers since the mid-1980s.[4] Whatever the exact extent of the problem, most criminal justice system professionals report that witness intimidation feels like a new problem and indisputably is a serious one: o A 1994 survey of a sample of 192 prosecutors found that intimidation of victims and witnesses was a major problem for 51 percent of prosecutors in large jurisdictions (counties with populations greater than 250,000) and 43 percent of prosecutors in small jurisdictions (counties with populations between 50,000 and 250,000); an additional 30 percent of prosecutors in large jurisdictions and 25 percent in small jurisdictions considered intimidation a moderately serious problem.[5] o Several prosecutors interviewed for this report estimated that they suspect witness intimidation occurs in up to 75 to 100 percent of the violent crimes committed in some gang-dominated neighborhoods. o In a 1993 survey of 319 victim/witness assistance programs, more than 60 percent of program directors reported there was a need to investigate threats of harassment of victims by suspects.[6] Prosecutors and police administrators in some jurisdictions may feel that witness intimidation is not a significant problem in their community and does not hamper their ability to bring offenders to trial. However, some individuals in the criminal justice system have warned, "If you feel you don't have a serious witness intimidation problem now -- just wait." Furthermore, a jurisdiction need not have nationally affiliated gangs or rampant cocaine dealing for extensive witness intimidation to be occurring: small informal groups of neighborhood criminals and more fluid drug-dealing groups can be just as intimidating as "gang-bangers." For example, David Schertler, who heads the U.S. Attorney's Homicide Section in Washington, D.C., emphasizes that while no national gangs have taken root locally, "we do have small neighborhood `crews' involved in drug trafficking that are often just as ruthless in their willingness to murder potential witnesses."[7] In short, gangs or drug-selling groups do not need to be highly organized to engage in effective witness intimidation. Indeed, current research strongly suggests that these groups are not highly structured or disciplined organizations in most jurisdictions, although there are notable exceptions, including the well-established multigenerational gangs of Los Angeles and Chicago.[8] Forms of Intimidation Intimidation -- whether of an individual or a community -- may involve the following tactics: o physical violence, o explicit threats of physical violence, o implicit threats, o property damage, and o courtroom intimidation. Attempts by gangs or drug dealers to promote community-wide noncooperation may include the public humiliation or assault, or even execution of victims or witnesses (or members of their families), as well as isolated public acts of extreme brutality that, intentionally or unintentionally, terrify potential witnesses. o According to one police investigator, a gang leader in Des Moines was afraid that a man he had forced out of business for refusing to pay extortion money would testify in court about the gang leader's extortion racket. When the two met at a party, the gang leader roughed up the businessman and warned him to keep his mouth shut. o In Washington, D.C., a prosecutor reported that a female resident of a gang-dominated neighborhood where a homicide had occurred was shot and killed by gang members who saw her simply speaking to police (in fact, she had refused to cooperate in the investigation). Prosecutors and police emphasize that the general atmosphere of intimidation and violence common to drug- and gang- dominated neighborhoods -- including frequent personal exposure to drive-by shootings, armed robberies, and drug sales -- is itself sufficiently intimidating to dissuade many witnesses from testifying. o According to one homicide prosecutor, a local drug-selling gang in New York City executed a local man for a petty drug theft, decapitated him, and used his head as a soccer ball in the street. In this neighborhood, resident noncooperation was said to have prevented law enforcement officials from solving about 30 homicides in 1994 and to have allowed an atmosphere of violence in which an average of eight gunshots occurred each night. Physical Violence While incidents of physical violence were described by respondents in all jurisdictions, they were reported to be much more common in some jurisdictions than others. Some prosecutors, mostly from nonurban jurisdictions, reported an exaggerated sense of alarm in their communities about victim and witness intimidation, citing statistics that showed that threats were rarely carried out. However, prosecutors and police investigators in eight urban jurisdictions reported that violent acts of intimidation -- including homicides, drive-by shootings, and physical assaults -- occur on a daily or weekly basis. Explicit Threats of Physical Violence Prosecutors and police investigators reported a high incidence of threats of physical violence against victims, witnesses, and their families. These respondents said that threats are much more common than actual violence but that threats were often just as effective in deterring cooperation because in gang- and drug-dominated communities these threats are credible. Threats against a victim's or witness's mother, children, wife, or partner were cited as being particularly effective forms of intimidation. According to Daniel Voogt in Des Moines, "We get as many witnesses who want protection for their family as witnesses who want it for themselves. We had a woman who saw an attempted homicide, but she wouldn't testify because she was afraid for her mother, who lived nearby." Indirect Intimidation A third common form of intimidation, reported in almost every jurisdiction, involves indirect intimidation, such as gang members parked outside a victim's or witness's house, nuisance phone calls, and vague verbal warnings by the defendant or his or her associates. Property Damage Only slightly less common than the three types of intimidation described above is intimidation involving the destruction of property: drive-by shootings into a witness's house, fire-bombing of cars, burning of houses, hurling bricks through the window of a car or home, and other types of violence. Courtroom Intimidation Another common form of intimidation occurs when friends or relatives of the defendant direct threatening looks or gestures at a witness in the courtroom or courthouse during a preliminary hearing or a trial. Court-packing by gang members is a particularly effective form of intimidation. Gang members may demonstrate solidarity with the defendant -- and make clear their readiness and ability to harm the witness -- by wearing black (symbolizing death), staring intently at the witness, or using threatening hand signals. If judges and prosecutors do not understand the meaning of certain gestures or other nonverbal threats, they may fail to address these explicit attempts to intimidate the witness. In other cases, the judge may be aware of what gang members are doing but feel that ejecting these individuals from the courtroom would violate their right to freedom of expression or the judiciary's duty to provide an open trial (see chapter 7, "Legal Issues"). Other Forms of Intimidation Less common forms of intimidation cited by prosecutors and police include economic threats (in domestic violence or fraud cases) and threats concerning the custody of children, deportation, or the withholding of drugs from an addicted victim or witness or from addicted members of his or her family. ------------------------------ Some Explanations for the Recent Increase in Intimidation "In my view the reasons for this dramatic increase in fear and intimidation are many and varied. The defendants we prosecute for committing violent crime are not only much younger than in the past, but they very often display several commonly held attitudes and beliefs, including o a profound lack of respect for authority, o the expectation that their own lives will be brief or will be lived out in prison, o a sense of powerlessness and social inadequacy that can lead to the formation of gangs or neighborhood crews, o the ready availability of very powerful firearms, o a willingness to use those firearms for almost no reason or in retaliation for the most minimal slight to their extraordinarily fragile egos, and o lastly, and ironically, the increased penalties being imposed on those convicted of violent crime, which can raise the stakes of a prosecution." -- J. Ramsey Johnson, Assistant U.S. Attorney for the District of Columbia.[9] ------------------------------ The Primary Actors in Witness Intimidation Certain types of individuals are more likely than others to engage in witness intimidation or to be its targets. Types of Perpetrators Interviews with prosecutors, police administrators, and working-group members suggest that, if witness intimidation is known to be aggressively prosecuted in a jurisdiction, the primary intimidators will most likely be the gang, family, or friends of the defendant rather than the defendant himself. Even in the absence of aggressive prosecution, intimidation in gang-related cases is rarely carried out by defendants themselves; other gang members usually take on this responsibility. Gangs may also be ruthless in their self-protection: sometimes a gang member who becomes a defendant is seen as a potential threat to the gang and is therefore targeted for intimidation or execution. Some prosecutors interviewed for this report expressed concerns about information gained from witnesses and then provided to defendants by defense attorneys, including, in some instances, confidential court papers. In many jurisdictions, prisoners have unmonitored access to phones and their correspondence is not screened, making it easy for even defendants who are incarcerated to arrange for intimidation attempts on the basis of improperly obtained information.[10] Some gangs are said to hire attorneys to represent witnesses who may be in custody in relation to the crime in question or on another unrelated charge, without the witness's knowledge or consent, in an effort to control his or her testimony (see chapter 7, "Legal Issues"). The Most Likely Targets of Intimidation Anyone is a potential victim of intimidation, as the criminal justice professionals consulted for this study have emphasized; however, they also pointed to four factors that increase the chance that a witness will be intimidated: o the initial crime was violent; o the defendant has a personal connection to the witness; o the defendant lives near the witness; and o the witness is especially vulnerable -- for example, he or she is elderly or a recent or illegal immigrant. Residents of gang-dominated neighborhoods often fall into more than one of these categories, greatly increasing their exposure to intimidation. Incarcerated witnesses and juvenile witnesses are also especially vulnerable to intimidation. Witnesses who are in jail or prison are easily identified by offenders (who may themselves be either inside or outside the facility), and because they cannot hide, they are easy prey to other inmates, including the defendants in the case at hand or defendants' associates or family members. Juveniles are another especially vulnerable group because they are often less able or less willing to take precautions against being located by would-be intimidators, and because they are more susceptible to family or peer pressure not to testify. Relocated juveniles may endanger themselves by contacting old friends and visiting old neighborhoods. Juveniles may also be less able to take advantage of witness security measures, even where these are available, because minors not living with both parents may not relocate out of State, or in extreme cases, change their identity, without the consent of the noncustodial parent. Despite the diversity of individuals associated with witness intimidation, most explicit intimidation occurs only when there is a previous relationship or other connection between the defendant and the victim and they live relatively close to each other. As a result, witnesses who have been -- and stay -- relocated and are able to keep their home and work addresses secret are generally immune to intimidation. Most prosecutors and police consider it extremely rare for defendants or their associates to leave their own communities to intimidate a witness in another jurisdiction or even another neighborhood. When Intimidation Occurs Prosecutors and police agree that the most dangerous time for a witness is between the arrest and the trial of a defendant. Although there was some variation by jurisdiction, in general, as the trial approaches, the victim or witness becomes a more likely target, and the long trial delays experienced in most jurisdictions allow ample opportunity for intimidation. The second most dangerous period for victims and witnesses is during the trial itself. However, according to one police investigator in Des Moines, whose observation was reflected in the experience of other law enforcement officers and prosecutors, "Once the testimony has been given, it's done; all the pressure is gone. Bad guys don't want to go to jail for intimidation after the witness has testified." Very few intimidation attempts are made at the scene of the crime (although violent crime is in itself intimidating) or at the time of arrest. However, in cases involving community-wide intimidation, the witness may feel endangered from the moment he or she is aware that the crime is gang-or drug-related. Conclusion Witness intimidation is a pervasive and insidious problem. No part of the country is spared, and no witness can feel entirely free or safe. The remainder of this report provides police investigators and prosecutors with a variety of methods -- all currently in use -- for helping to prevent intimidation. While the severity and ubiquity of the problem may seem discouraging, investigators and prosecutors who have used these approaches have made it possible for key witnesses to testify and thereby convict thousands of violent felons who might otherwise have gone free. ------------------------------ The Focus of This Report This publication is intended as a practical guide for assisting prosecutors, police investigators and administrators, and coordinators of victim/witness assistance programs to improve their efforts to prevent witness intimidation. In addition, judges will learn about strategies for preventing intimidation in the courtroom in chapter 4, and legislators will find suggestions for witness protection in chapter 7. The report focuses on intimidation in gang- and drug-related cases. While victims in domestic violence cases are also intimidated, prosecutors, police investigators, and victim advocates agreed that a separate publication devoted exclusively to the intimidation problem as it relates to drug- and gang-related violence was needed because o intimidation associated with gang- and drug- related violent crime is escalating, o little has been written about gang- and drug- related intimidation, and o intimidation in domestic violence cases is different in nature from gang-related intimidation because it does not terrify the community at large and because the intimate relationship between domestic partners makes intimidation in violent domestic relationships inevitable. Useful information on the nature of witness intimidation in domestic violence cases, and how to prevent it, may be found in Civil Protection Orders: Legislation, Current Court Practice, and Enforcement, by Peter Finn and Sarah Colson (Washington, D.C.: U.S. Department of Justice, National Institute of Justice, March 1990), and Domestic Violence, Stalking, and Anti-Stalking Legislation (Washington, D.C.: U.S. Department of Justice, National Institute of Justice, April 1996.) Furthermore, many of the suggestions for preventing witness intimidation provided in this publication can be implemented as a means of reducing intimidation in cases of domestic violence. Only two programs were identified that address the witness intimidation problem in a comprehensive and coordinated fashion: one in Baltimore, which was just starting when the research for this publication was conducted, and one in Washington, D.C., which is atypical because most of the primary groups involved are Federal agencies. It is not surprising that few mature, comprehensive programs were found or that the formal programs that have been established are in special settings: most prosecutors and police investigators report that witness intimidation has only recently become such a severe impediment to investigating and prosecuting cases that it requires sustained attention. As a result, while this report largely describes discrete responses to witness intimidation that jurisdictions have implemented, police administrators and county attorneys can combine these approaches into a comprehensive plan to prevent intimidation (see chapter 6). ------------------------------ Sources of Information for This Report The information presented in this report comes principally from four sources: o a literature search and a review of the relevant case law; o structured telephone interviews with 32 criminal justice professionals from 20 urban jurisdictions, including prosecutors; Federal, State, and local law enforcement officers; directors of victim/witness services programs; judges; and academics; o the comments of a working group of 20 criminal justice professionals, including several of those already interviewed, contributed during an all-day meeting held in Washington, D.C., in September 1994;[11] o structured telephone interviews with from four to six additional criminal justice system professionals in each of four jurisdictions -- Las Vegas, Los Angeles, Minneapolis, and Philadelphia; and o on-site interviews with over 50 professionals, conducted in Baltimore, Des Moines, New York City, Oakland, San Francisco, and Washington, D.C. Candidate study sites were identified on the basis of telephone calls made to over 40 jurisdictions selected to represent a wide geographic distribution. The project's advisory board (see page ii) and other criminal justice practitioners and experts also made recommendations. Jurisdictions were then selected for site visits or telephone interviews on the basis of the size, geographic distribution, and the thoroughness and creativity of their witness protection procedures. No formal witness protection programs in rural areas were identified; rural law enforcement officers and prosecutors reported that formal programs were not needed because intimidation cases requiring special measures occurred too infrequently. However, these practitioners also felt that most of the individual protection strategies available in larger jurisdictions could be used in rural areas on an ad hoc basis, although in some cases planning would be required to make sure the approaches, even if needed infrequently, could be used on short notice. Furthermore, since the research for this publication was completed, some rural law enforcement administrators and prosecutors have begun to suggest that, with the spread of gangs to their jurisdictions, they are beginning to see the need for comprehensive witness protection programs. --------------------------------------------------- Endnotes [1] However, see, for example, Connick, E., and R.C. Davis, "Examining the Problem of Witness Intimidation," Judicature 66 (1983): 439-447; and Davis, R.C., "Victim/Witness Intimidation in the Bronx Courts: How Common Is It, and What Are Its Consequences?" unpublished monograph, New York: Victim Services Agency, 1990. [2] Davis, "Victim/Witness Intimidation in the Bronx Courts." [3] In the late 1960s, the U.S. Department of Justice recognized that victim and witness intimidation had become a serious impediment to obtaining testimony in organized crime cases. In response, Congress enacted the Organized Crime Control Act of 1970, laying the basis for the Federal Witness Security Program, which operates today under the Witness Security Reform Act of 1984. In 1982, the Victim and Witness Protection Act expanded Federal laws regarding witness security and victim services by establishing significant penalties for witness tampering, intimidation, and harassment; providing for civil restraining orders; authorizing restitution for crime victims; and outlining Federal guidelines for the fair treatment of victims and witnesses. The problem of witness intimidation was also highlighted by the American Bar Association in the early 1980s in "Reducing Victim/Witness Intimidation: A Package," Washington, D.C.: American Bar Association, 1983; in Connick and Davis, "Examining the Problem of Witness Intimidation"; and in Cannavale, F.J., and W.D. Falcon, Witness Cooperation, Lexington, Massachusetts: D.C. Heath, 1976. [4] Although there is no research supporting the perceived connection between the arrival of crack cocaine in the mid-1980s and an escalation in gang- and drug-related violence, the majority of prosecutors and police officers interviewed for this report attributed the escalation of gang- and drug- related intimidation to this event. A recent publication that examines the perceived connection between gangs, violence, and crack sales suggests that the statistical connection between street gangs, drug sales, and violence is smaller than anticipated. See Maxon, C. L., Street Gangs and Drugs Sales in Two Suburban Cities, Research in Brief, Washington, D.C.: U.S. Department of Justice, National Institute of Justice, September 1995. [5] Johnson, C., B. Webster, and E. Conners, Prosecuting Gangs: A National Assessment, Research in Brief, U.S. Department of Justice, National Institute of Justice, February 1995. [6] McEwen, T., "Understanding the Needs of Victim Assistance Programs," unpublished report, U.S. Department of Justice, National Institute of Justice, n.d. [7] The violent intimidation practiced by Washington, D.C., crews is well documented in the news media. See, for example, "The Teflon Suspect: In 6 Years, Prosecution Hasn't Been Able To Make Charges Stick," Washington Post, March 27, 1994. [8] For an analysis of the relationship between gang membership, crime, drug sales, and gang structure, see Decker, S.H., "Gangs, Gang Members, and Drug Sales," unpublished paper presented at the National Institute of Justice Workshop on Gangs, August 6, 1995. (See also chapter 8, "Sources of Help.") [9] Johnson, J. Ramsey, Assistant U.S. District Attorney for the District of Columbia, Statement Before the Subcommittee on Crime and Criminal Justice, Committee on the Judiciary, U.S. House of Representatives, August 4, 1994. [10] For an illustration of intimidation orchestrated by mail from jail, see "Letters from Gang Members Leave Trail of Violence," Washington Post, May 24, 1995. [11] The results of the interviews and working group meeting are available in Healey, K.M., Victim and Witness Intimidation: New Developments and Emerging Responses, Research in Action, Washington, D.C.: U.S. Department of Justice, National Institute of Justice, October 1995. ------------------------------ PART I COMPONENTS OF A COMPREHENSIVE WITNESS SECURITY PROGRAM CHAPTER 2 TRADITIONAL APPROACHES TO WITNESS SECURITY ------------------------------ Key Points o Four traditional approaches to witness security are -- requesting high bail, -- prosecuting intimidators vigorously, -- making a conscientious effort to manage witnesses, and -- enhancing basic victim/witness program services. o These traditional approaches to addressing witness intimidation tend to have limited effectiveness, but some prosecutors and police investigators have added innovative twists that make them more useful. o Practitioners suggest that witness management in particular can be effective in addressing implicit, imagined, and overt intimidation, especially when intimidation occurs in the courtroom or is caused by juveniles. o While all four traditional approaches to addressing witness intimidation have drawbacks, they are important to implement because they make symbolic statements to the community and to other potential witnesses that the criminal justice system takes witness intimidation seriously. ------------------------------ For the purposes of discussion, the steps that criminal justice agencies have taken for preventing witness intimidation can be divided into two types: (1) approaches that many jurisdictions have been using for a long time, which are here called "traditional," and (2) approaches that relatively few jurisdictions have implemented, here termed "innovative."[1] This chapter discusses four traditional approaches to witness protection: o requesting high bail, o prosecuting intimidators vigorously, o conscientiously managing witnesses, and o enhancing basic services provided by victim/witness assistance programs. The following three chapters address innovative -- that is, less widely used -- methods. The remaining chapters suggest a process for combining both types of approaches into a comprehensive master plan for preventing intimidation. Requesting High Bail A long-standing strategy for preventing witness intimidation has been to request high bail for defendants or to ask that they be jailed without bail, in an effort to put and keep them behind bars so that they cannot personally threaten or harm witnesses. Most prosecutors interviewed for this report consider high bail an essential component of an effective witness protection program. However, the strategy has limitations: o Unless there is State legislation that permits judges to establish bond on the basis of the defendant's danger to the community (so-called preventive detention statutes), a judge may consider only the defendant's predisposition to show up for trial in setting bail. o Judges in many jurisdictions operate under strict bond schedules that typically provide for relatively small bail levels for intimidation. o Jail and prison crowding in most jurisdictions weighs heavily on the minds of judges when setting bail. o Locking up defendants who are gang members does not prevent the incarcerated individuals from arranging for gang associates to intimidate witnesses. Even without prompting, the defendant's family members may threaten or injure the witness. Daniel Voogt, one of three assistant county attorneys who make up the special Gang and Drug Unit in the Polk County (Des Moines) Attorney's Office, uses three strategies to make bond requests more effective. First, whenever possible, Voogt will file more than one charge against the defendant and ask for bond on each charge. For example, with a drive-by shooting, he will charge attempted murder, terrorism, and weapons possession (if the defendant is a felon). Although some judges will then give the highest bond among the charges, about half the time the court agrees to setting separate bonds for each charge. Second, Voogt sometimes asks for high bond immediately after an arrest to force the defendant to request a bond reduction hearing; if granted, this at least keeps the defendant in jail for a few days while the police and Voogt talk with witnesses. In addition, Voogt tries to make his bond request when the on-call judge on duty is one who is known for setting high bail. The potential value of this approach was illustrated in a case in which a gang leader was arrested on a Friday. Voogt asked for no bond, charging that the defendant had already intimidated the witness. The judge agreed, and the man spent the weekend in jail until a bond reduction hearing on Monday enabled him to post bail. Third, on occasion Voogt himself requests a bond review hearing to request higher bail. In one case, the court had already followed his recommendation and set a $100,000 cash-only bond for a defendant wanted for attempted murder who had been at large for over a week. However, when the defendant turned himself in on a Friday, he received an automatic bond review on Saturday that resulted in a bond reduction to cash or surety because the assistant attorney on weekend duty was unfamiliar with the case. When Voogt discovered this on Monday morning, he asked for another bond review, at which police officers testified to the defendant's gang membership and to his refusal to surrender himself for over a week despite a manhunt. As a result, the judge reinstated the cash-only bond and, since the defendant had been ordered to come to court for the bond review, he was ordered back to jail, where he remained until his later guilty plea. Deputy Chief Thomas Mills of the Kansas City (Missouri) Police Department tries to buttress his case for high bail by looking up the defendant's records for previous violations with which to charge him, since he can then argue that the greater the number of charges, the greater the risk the defendant will not appear for trial. Mills also sees if he can charge the defendant with a violation of a Federal statute -- for example, possession of a firearm after a prior felony conviction -- which also makes it more difficult for the person to get bond. Vigorous Prosecution of Intimidators All the jurisdictions studied for this report have some type of statute prohibiting witness intimidation or obstruction of justice. In addition, all the prosecutors interviewed charge some individuals under these statutes. However, because they have very different perceptions about how useful their statutes are, some prosecutors charge intimidation frequently and others rarely. Charging Practices The Philadelphia District Attorney's Office frequently prosecutes individuals for violating the Pennsylvania felony intimidation statute, getting a warrant issued within one to five days after a detective takes the witness's statement. Although the bail commissioner who issues the warrant is bound by the city's prison cap guidelines, witness intimidation is an exception to these guidelines. By contrast, Alfred Giannini, a homicide prosecutor in San Francisco, rarely brings charges under the California witness intimidation statute even though the legislation makes the act a felony punishable by 16 months to 3 years in prison; Giannini says he uses the statute with great discretion because "if you arrest and don't charge or make it stick, you send a message that you're impotent." Minnesota has a witness tampering statute, but Paul Scoggin, the deputy county attorney in charge of the appellate division of the special litigation unit in the Hennepin (Minneapolis) County Attorney's Office, makes more frequent use of a State accomplice-after- the-fact statute because it permits much stiffer sentences. Scoggin reports that because of the potential severity of the punishment, prosecutors rarely have to bring actual charges. Instead, they or police investigators explain to intimidators the penalties they risk under this statute if they continue to threaten witnesses. As a result, Scoggin says, many intimidators stop their behavior. Victoria Villegas, a deputy district attorney in the Las Vegas prosecutor's Major Violators Unit, charged a gang member with six counts of intimidation after he had used his finger to simulate pointing a gun to his head in an attempt to intimidate a witness in court. Villegas used a Nevada law that, when combined with the State's gang enhancement statute, doubles the punishment for intimidation. The judge put the gang member in jail because of the gang enhancement charge (and because the intimidation occurred in her court). The Washington, D.C., Council has increased the maximum penalty for obstruction of justice to the maximum penalty for the underlying offense. In an unusual resolution, the Federal judges of the U.S. district court notified criminal defendants and those assisting them that "stern measures will be taken by the court to halt witness intimidation," including the imposition of maximum sentences.[2] In addition, the judges resolved to request that law enforcement authorities investigate reports of witness intimidation on an urgent basis. The principal features of these and other anti- intimidation statutes are discussed further in the section, "Legislation Designed To Prevent Intimidation" in chapter 7, "Legal Issues." Advantages and Drawbacks of Prosecution Several prosecutors and police officers agreed with Richard Carroll, the head of the Felony Waiver Unit in the Philadelphia District Attorney's Office, who said, "Courts like and respect intimidation charges and take these cases seriously -- sometimes more seriously than the underlying case." Carroll offers another reason to prosecute individuals who intimidate witnesses: if the person charged is on probation or parole, binding him or her over for a felony trial, unlike simple arrest, constitutes a prima facie case to revoke probation or parole and detain that person pending a hearing on whether any parole or probation conditions have been violated. In addition, when defendants are drug dealers, they are likely to be especially reluctant to risk jail and be forced to leave their businesses. Alfred Giannini, assistant district attorney in the San Francisco District Attorney's homicide unit, used the California witness intimidation statute in a case involving an explicit death threat as part of a plea bargain, and the court sent the defendant to jail for a year for the intimidation. Charles Grant, former chief of the Philadelphia District Attorney's homicide unit, observes, "Going after intimidators shows the witness `We will help you, we care about you, we're not just after your testimony and then bye-bye.'" To emphasize the point, Grant made sure that witnesses were informed whenever the court locked someone up who had tried to intimidate them. According to Lieutenant Teresa Lesney, Commander of the Gang Investigation Section of the Las Vegas Police Department, an intimidation charge is a useful tool for stacking charges. Because defendants usually have cases pending, a prosecutor can often use the witness intimidation charge in a plea bargain to get a higher sentence on another charge. As a result, most defendants charged with intimidation in Las Vegas serve at least a little time. However, this approach may inadvertently backfire if the witness and other potential intimidators feel the prosecutor is sending the message that witness intimidation is unimportant compared to the other charges. As a result, Deputy Chief Thomas Mills in Kansas City recommends bargaining away the other charges in exchange for a guilty plea to the intimidation charge if jail time is likely to be part of the intimidator's sentence. The principal drawback to charging offenders with witness intimidation is that it is often difficult to convince judges to set high bail, or any bail at all. Furthermore, according to Daniel Voogt in Des Moines, "Defendants come up with amazing amounts of cash, or their friends post bond, or they find a bondsman." Voogt has also found that prosecuting these cases can be difficult in terms of getting sufficient evidence because the threats themselves are often subtle. Furthermore, because the Iowa tampering statute makes the offense only a misdemeanor, getting jail time is all but impossible. "Intimidators simply see the tampering statute as the cost of doing business." Richard Carroll notes that a weakness in the Pennsylvania statute is that it does not cover associates or family members who are intimidated, only the witness. Even in jurisdictions with strong statutes, some prosecutors feel that the types of individuals who will engage in intimidation are not frightened by the prospect of spending time in jail. Paradoxically, other prosecutors feel that strong anti-intimidation statutes could make some intimidators more dangerous: alleged offenders who know that with one more conviction they will be locked up (for example, because of a three-strikes or habitual offender statute) may decide to escalate the intimidation in an effort to ensure that no one will dare accuse them of threatening a witness. Witness Management A number of prosecutors and police investigators reported that they spend considerable time -- sometimes an inordinate amount of time -- taking steps to make sure particularly important witnesses will testify. The steps may include o reassuring witnesses that they are safe; o arranging protection; o providing material support, ranging from small amounts of cash for food to a part-time job; and o checking regularly on their whereabouts. Why do all this? According to prosecutor Alfred Giannini in San Francisco, "You have to be prepared to deal with the entire range of witness problems from the beginning. It wrecks a case if a key witness recants; you don't just lose a witness, you lose the case because it kills the DA's and cops' credibility." So Giannini does whatever it takes. He gives key witnesses his home phone number and puts up with callers asking, "My mother is sick; can you send me to Georgia to be with her?" or, "How can I live on $15 a day for food?" Polk County prosecutor Daniel Voogt in Des Moines gives his pager numbers to key witnesses and shows up at the scene of many gang and felony-level drug cases in part to make sure that witnesses know whom to call if they are intimidated. John Sarcone, the county attorney and Voogt's supervisor, goes to the scene of every murder, and he encourages key witnesses to call him, giving them his direct office telephone number and, when necessary, meeting with them in person. Investigator Blaine Tellis of the Des Moines Police Department's Special Investigations Unit gave a key Vietnamese witness in an Asian gang extortion case his 24-hour pager number and home phone number (warning him strongly not to misuse the latter). The witness made proper use of both numbers. In one instance, he had been roughed up at a party and called to question whether it was safe to stay at home. Tellis offered to put him up in a motel, and, although the witness chose to stay with friends instead, also asked an officer who was stationed in the precinct to drive by the man's house a few times during the night. The second time the witness called he was out of money and hungry. Because the man was reluctant to ask for help, Tellis insisted on giving him aid. Tellis hand-carried him $50 in cash and got a receipt. Tellis also called him three to six times a day for the first week to make sure he was safe, then daily for two weeks, then once every two or three weeks -- even after the man had relocated temporarily to Vietnam pending trial. When the witness was flown back for trial at the police department's and prosecutor's expense, the defendant agreed to a plea bargain during the deposition hearing -- as soon as he saw that the man was available and prepared to testify. Tellis and Daniel Voogt, the prosecutor, then arranged to have the witness's moving expenses paid so that he could relocate to another State. Several county attorneys also emphasized the following advantages of vertical prosecution for witness management, whereby the same assistant county attorney handles a given case from initial filing through motions, trial, and any appeals: o It makes it easier to manage witnesses because they feel reassured by maintaining continuity with the same prosecutor. o It precludes the need for police investigators to establish rapport with each new prosecutor and provide each one all the details of the case. o It enables county attorneys to develop expertise on gang- and drug-related cases that facilitates their working with the investigators and handling witnesses effectively. These prosecutors and investigators in effect act as case managers for their witness "clients" -- largely because there is no one else available to shoulder these responsibilities. Investigators who stay with a case through all its stages often have the strongest motivation and the most knowledge to keep the witness on board. Furthermore, they know that most witnesses feel a lot safer, and are more likely to testify, if there is a single point of contact within the criminal justice system to whom they can go whenever they are afraid. Finally, some investigators feel that existing witness protection services fail to provide adequate services. One detective reported, "I don't use our department's protection program because it's difficult to get funds from the program, some key witnesses don't meet its criteria, and it doesn't provide the level of protection witnesses need to get them to cooperate. So I do it [case management] on my own." Other programs fail to provide 24-hour, 7-day-a-week service -- and investigators often need help most critically at night or on weekends. Advocates in the Hennepin County (Minneapolis) Victim Witness Program tell witnesses that most people are afraid to testify but that program staff have yet to see retaliation against a fearful witness who has taken the proper precautions. Advocates emphasize that the safety of witnesses depends far more on what they do than on what advocates and prosecutors do. They also try to get witnesses who seem unjustifiably afraid to articulate what they feel they need in order to feel safe enough to testify. A witness may say, "I just need my door fixed and a good lock put on it," or "I don't have a telephone to call 911 if I am threatened"; the Hennepin County program will then pay for having the door fixed and a lock installed, or pay for the installation (but not monthly charge) of a telephone. The burden on a prosecutor's or a police officer's time and emotions in managing a witness can be considerable. As Walter Arsenault, Chief of the Manhattan District Attorney's Office's Homicide Investigation Unit, says, "When you get involved with witness security you become a huge social service agency. You're responsible for treating venereal disease, solving personal and financial problems, and dealing with pregnancies, immigration issues, and Social Security payments. [Witnesses] are often dysfunctional." As a result, few prosecutors or police officers have the time or energy to manage a witness from the beginning to the end of a given case. Because of this limitation, a few prosecutors' offices have identified a single person to act as a case manager for all their intimidated witnesses. Chapter 6, "Developing a Comprehensive Witness Security Program," describes such an organized case management approach; however, even with the efforts of skilled case managers, it is likely that prosecutors and police investigators will themselves need to provide special attention to key witnesses in order to keep them reassured and willing to cooperate throughout the frequently lengthy criminal justice process. Given the likely need for continued time-consuming witness management, police executives and chief prosecutors need to consider ways to lessen the burden on investigators and assistants, such as by streamlining procedures for providing funds (at least in emergency situations) for witness support activities, identifying a staff person to act as a case manager, and providing public recognition to staff who take extra time to manage witnesses. Basic Victim/Witness Assistance Program Services Almost all jurisdictions contacted for this report provide some support services for witnesses through victim/witness assistance programs housed in the prosecutor's office, police department, or another local government agency, or operating as freestanding community-based organizations. Depending on their resources, most victim/witness assistance programs offer basic support by explaining the operations of the criminal justice system and providing court escort.[3] o Most programs provide victims and witnesses with an explanation of the adjudication process and a tour of the courtroom. This orientation can allay the fears of some intimidated witnesses by removing uncertainty about what will happen to them as the case proceeds. o Many programs provide areas where victims may wait apart from the defendant before testifying, and most also provide advocates to escort frightened witnesses to and from court. Prosecutors in the Clark County (Las Vegas) Attorney's Office regularly call the county's victim/witness assistance program if they know that a witness feels intimidated to request that the program advocate stationed in the court sit with the witness during the hearing or trial. Based on public hearings, the American Bar Association has concluded that "the mere presence of a third person who knows the criminal justice system can be dramatically reassuring to the crime victim or key witness. Simply having someone to talk to during the trial or to walk to the drinking fountain or the restroom with (vitally important if the defendant is on bail or his family is in or near the court) are very important to the victim or witness in reducing perceived intimidation in almost every case and to the reduction of real threats in a considerable number."[4] Some programs take further measures that may help prevent intimidation as well as reduce witnesses' fears. When they learn that a victim has been intimidated by a defendant, Polk County victim service program staff often call the public defender to ask that the client be told to "ease up"; typically, the intimidation stops. Some programs provide victims with security surveys and lock repairs. The St. Louis Victim Service Council arranges for police to conduct security surveys of homes. Staff of the Greenville (South Carolina) Victim/Witness Assistance Unit, having been trained by local police, conduct these security checks themselves. These services can be expanded to include witnesses who feel that would-be intimidators could invade their homes. On a few occasions, the Hennepin County Attorney's Office has arranged to have security systems installed in the home of key witnesses who refused to relocate even temporarily due to job requirements or family ties, or because they felt they would be safe as long as their homes were wired into the police station. The cost of a security system may even be less than the expense of relocation in some cases. Many victim assistance programs encourage witnesses to contact them immediately if they experience intimidation. The Clark County victim/witness assistance program gives a pamphlet to clients that includes a discussion of witness intimidation under the heading "What if Someone Threatens Me To Drop the Case?" Prosecutors and police administrators can ask the coordinators of every local victim assistance program to make it standard operating procedure for all advocates to ask victims and witnesses if they are afraid of retaliation. Program staff can then do what they can to reassure each witness, including providing assurances that, unless there has been an actual threat made to them, they have little to be worried about. Advocates can work to allay apprehensions on a long- term basis, not just during the two days before trial when most prosecutors begin to spend time with a witness. For a sample victim/witness services interview guide for intimidated witnesses, see appendix A1, "Intimidation Interview Guide." Victim/witness assistance programs can be especially helpful and cost-effective by counseling, staying in regular touch with, and escorting witnesses who exaggerate the risk of retaliation -- thereby making it unnecessary to expend scarce resources on actually relocating them. According to Paul Scoggin of the Hennepin County Attorney's Office, "Victim advocates help immensely with witness intimidation because the primary battle is perceived intimidation, and advocates can convince people through a lot of day- to-day hand-holding that, unless they have actually been threatened, they can testify safely." Although lack of funds and limited hours of operation place constraints on the help that most victim/witness assistance programs can offer, the reassurance and court escort services they provide are an indispensable component of a comprehensive witness security effort. Furthermore, as illustrated in the box "Las Vegas Witness Assistance Center Helps Relocate Witnesses" a few victim assistance programs have begun to provide actual security by arranging for witnesses to relocate temporarily. Conclusion A number of jurisdictions have implemented other traditional forms of witness protection, but each has serious drawbacks. For example, many police departments have on occasion provided 24-hour protection, but this approach is very expensive, and in the vast majority of cases it is not needed. Some judges issue warnings to defendants and other people in the courtroom not to contact witnesses, but prosecutors and police agree that these admonitions are usually ineffective in dealing with today's hardened gang members and drug dealers. Despite the limitations of traditional approaches, it is still important for prosecutors and police investigators to include them as part of a comprehensive plan for preventing intimidation. In some cases, these methods can be effective with certain types of intimidation. In addition, using traditional approaches makes an essential symbolic statement that the criminal justice system cares about witnesses, takes intimidation seriously, and is determined to prevent it. Sending this message may encourage some hesitant witnesses to testify and discourage some would-be intimidators from taking action. Furthermore, in rural areas, where intimidation may occur infrequently and where, as a result, it may be impractical or not cost-effective to develop a comprehensive witness protection program, selected traditional approaches by themselves may provide adequate protection. However, even in rural areas traditional approaches are likely to have a greater impact if they are implemented in conjunction with other techniques for preventing intimidation. By applying several strategies in tandem, a comprehensive program creates the impression and the reality of a concerted and determined effort by the criminal justice system to deal effectively with this problem. The following three chapters present more innovative approaches to witness security which, when used with the traditional approaches presented in this chapter as part of a comprehensive witness protection strategy, may do a great deal to prevent intimidation and encourage a larger percentage of intimidated witnesses to testify. ------------------------------ Prosecution Strategies o If the defendant is on probation or parole, ask the probation or parole officer to make it very clear that any harassment (or additional act of harassment) will result in imprisonment. o Look at the defendant's rap sheet for dismissed cases or withdrawn complaints, which often indicate the use of intimidation in the past. Reopen these old cases and bring new charges against the defendant based on any past transgressions that are still within the statute of limitations. o Go to the defendant's home, or to the homes of other reported intimidators, and tell them what will happen if they intimidate the witness. o Ask the defendant's attorney to warn the defendant against trying to intimidate witnesses and to explain the possible consequences. ------------------------------ Jurors Can Also Be Intimidated According to James Anderson, Assistant District Attorney in Alameda County (Oakland), "Jurors do feel intimidation. On the questionnaire that prospective jurors complete, some people write, I could not vote for the death penalty [in a capital case] because I know it's gang-related and I don't feel safe.'" For this reason, Alfred Giannini in San Francisco uses his peremptory challenges to exclude potential jurors who live in the same neighborhood as the defendant. Anderson himself once used a peremptory challenge to keep a man off the jury whom he suspected might be susceptible to intimidation; the next day, when he ran into the rejected juror at a fast food restaurant, the man spontaneously thanked him for excluding him because, indeed, he had been afraid of retaliation. An assistant State's attorney in Baltimore reported he found it difficult even to impanel a jury in some cases because of the prevalence of implicit, community-wide fear. According to New York City gang prosecutor Walter Arsenault, in order to make juror intimidation more difficult, instead of revealing their precise address, jurors in Manhattan are required to provide only the section of the borough where they live. ------------------------------ Witness Management Strategies o Contact witnesses as soon as possible and let them know how they can get in touch with you quickly. o Don't dodge the intimidation issue with witnesses, or give false assurances; simply explain that you are available and how to reach you if the witness has any problems. If other witness security services are available, make the witness aware of them. o Audiotape or videotape witness's statements in case he or she recants. o Start witnesses off without the tape running, to avoid making them nervous, and then turn it on, telling them, "We want to have a record of what you know." Make duplicate tapes for the police investigator (or prosecutor) and for discovery. o Find out what the source of the intimidation problem is; it may be the witness's fear for his or her family, not for his or her own safety. o Don't change personnel on the witness, who may become frightened at losing the relationship that has been established with a particular investigator or deputy county attorney. o Be accessible to key witnesses at all times by giving them your pager number, direct office telephone number, or even your home telephone number, and by meeting with them in person. o If true, explain to witnesses that they are not the only ones putting themselves at risk to get the defendant convicted. o Although the majority of witnesses may have criminal backgrounds or associates and they may be scorned as "snitches," treat them with respect and concern. o Consider managing potential intimidators, as well. In one small jurisdiction, police officers found it effective to visit the families of potential intimidators to explain forcefully the laws concerning obstruction of justice. ------------------------------ Interviewing Strategies o Don't talk to witnesses at the scene; they may fear being seen "cooperating" with the police or prosecutor. o Don't appear at the door of potential (or actual) witnesses, which may label them as "snitches" and increase their reluctance to cooperate with the investigation. Arrange interviews away from the community in a neutral place, such as on a boat, in a church whose clergy you know, or in an unmarked van. o Witnesses will often say they will talk to you but will not go to court. Tell them that is all right and get all the information you can anyway. You can always consider subpoenaing an individual later as a hostile witness, if necessary. o Tell witnesses that they have vital information -- and what can be done for them. Use salesmanship, because they may not believe you at first. Tell witnesses specifically what you can do to protect them. ------------------------------ Las Vegas Witness Assistance Center Helps Relocate Witnesses Barbara Schell, the director of the Las Vegas District Attorney's Witness Assistance Center, estimates she devotes about 10 percent of her time -- much of it overtime and after hours -- to protecting witnesses, mostly in gang-related cases. Schell accepts these cases only from the police and prosecutors; she refers call-ins and walk-ins seeking protection to the police investigator or deputy district attorney handling the case in question. Acting as case manager, Schell assesses the witness's need for protection and lines up the needed services. Schell makes herself available by beeper 24 hours a day to police officers and selected witnesses. She helps about four witnesses in gang cases per month and relocates about six of these individuals a year. She may spend two weeks nearly full time on a single case. For example, on one occasion when police officers referred a family to her for assistance, the father said that the defendants boasted they were going to fire-bomb his house with his wife and children in it. As a result, she moved the family twice during the night from one motel to another and at 10:00 a.m. the next morning arranged for them to stay with relatives in another town. For the most part, these witness protection efforts are a one-person operation that Schell has voluntarily decided to undertake because the need is there -- and not being met. However, she coordinates her activities closely with prosecutors and local police departments. If she puts someone in a hotel, she tells the sector shift sergeant and police gang detail so that, if a call comes into the station from the hotel or from the witness, the officers sent to the scene will know what to expect and with whom they are dealing. Schell also calls the assistant district attorney prosecuting the case regarding any actions she has taken. -------------------------------- Endnotes [1] The separation of approaches into "traditional" and "innovative" is somewhat arbitrary in that some prosecutors and police administrators who have never used the methods referred to as traditional may find them unfamiliar, while other criminal justice system practitioners who have been using so-called innovative approaches for a number of years may consider them standard practice. [2] Johnson, J. Ramsey, Assistant U.S. Attorney for the District of Columbia, Statement Before the Subcommittee on Crime and Criminal Justice, Committee on the Judiciary, U.S. House of Representatives, August 4, 1994. [3] Tomz, J.E., and D. McGillis, Serving Crime Victims and Witnesses, 2nd ed., Issues and Practices, Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 1996. [4] American Bar Association, "Reducing Victim/Witness Intimidation: A Package and `How To Do It' Suggestions for Implementing the ABA Victim/Witness Intimidation Recommendations," Washington, D.C.: American Bar Association, 1982, 28-30. ------------------------------ CHAPTER 3 RELOCATING INTIMIDATED WITNESSES ------------------------------ Key Points o Many police investigators and prosecutors consider confidential relocation to be the single most reliable protection for witnesses. o Lack of funds and personnel can make it difficult to use relocation as often as desired. o While all witness security programs should have the capacity to relocate witnesses, in practice, small or rural jurisdictions may use relocation only once or twice a year. o There are three levels of witness relocation: -- emergency relocation, which usually involves placing the witness and his or her family in a hotel, motel, or safe house on a very short-term basis; -- short-term relocation, which utilizes many of the same approaches as emergency relocation but may also include placement in a month-to-month rental accommodation or placement with an out-of-town relative or friend; and -- permanent relocation, which may involve a move between public housing developments or Section 8 housing, or one-time grants of first and last month's rent to reestablish the witness in new private housing, and occasional use of the Federal Witness Security Program. o To make relocation effective, relocated witnesses often need assistance with the transfer of social services and school and other records, and sometimes with obtaining treatment for drug addiction. o In addition to logistical difficulties associated with moving and protecting witnesses and their families, witnesses often present a number of social problems -- such as addiction, unemployment, poverty, gang membership, and even criminal activity -- which make relocating and managing them a challenge. o Prosecutors disagree about the length of time a witness needs to commit to relocation. In jurisdictions where gangs are highly organized and multigenerational, prosecutors insist that relocation should be permanent; in jurisdictions with smaller, less formal gangs, short-term relocation is reported to be adequate. o Most relocations involve witnesses living in public housing. A variety of approaches to working with local public housing authorities can facilitate moving these witnesses in an expeditious manner. ------------------------------ Witness relocation is a critical component of all serious witness security efforts examined in this report. Many police investigators and prosecutors consider secure relocation to be the single most reliable protection for witnesses in urban, suburban, and rural areas. However, lack of funds and personnel, and problems related to managing relocated witnesses, make it difficult for most jurisdictions to use relocation as often as they would like. In general, there are three levels of witness relocation: emergency relocation, which is needed immediately and typically lasts only a few days; short-term or temporary relocation, which typically lasts for a few months or up to a year (or until the conclusion of the trial); and permanent relocation. These three levels may overlap in some jurisdictions and, as discussed below, there are differences of opinion concerning the length of time a witness needs to commit to relocation. Figure 3-1 presents the steps that investigators and prosecutors can use in deciding whether to offer a witness relocation in a given case, and at what level. Emergency and Short-Term Relocation Short-term relocation is handled differently in each jurisdiction studied, depending on the housing needs of the intimidated witnesses and the resources available to prosecutors and police investigators. Three common approaches are o maintaining witnesses and their families in hotels and motels for the duration of the threat or until a permanent option can be found (the most expensive approach), o a combination of a motel and such measures as the offer of a bus or plane ticket to send the witness to stay with out-of-town friends or relatives, and o relocation to temporary out-of-town accommodations under a month-to-month lease arrangement. Prosecutors' choices regarding the type of emergency or short-term relocation they use are determined by the available resources, the structure of the security program, and the assistance available from other agencies. How Emergency and Short-Term Relocation Procedures Work in Three Jurisdictions The following descriptions summarize relocation approaches in Hennepin County (Minneapolis), New York City, and Washington, D.C. The approaches and procedures that each site uses reflect local needs and available funding. o Hennepin County, Minneapolis. Minneapolis police investigators typically make their own determination of whether a witness needs special security assistance, pending review by the county attorney, and then provide whatever is required, from increased patrols to temporary placement in a motel. The county attorney's office and the police department may negotiate an agreement as to which agency will pay for temporary witness relocation costs. The assistant county attorney handling the case may learn of a potential need to relocate a witness from victim/witness program staff (who, in turn, may have heard about the problem from police investigators or the victim) or at a later date directly from the witness after charges have been filed. The attorney then contacts an investigator in the county attorney's office, who interviews the witness, attempts to substantiate the need for assistance, and records the information on a series of special witness assistance forms. Next, the victim/witness program director convenes a meeting with the assistant county attorney, the investigator assigned to the attorney's trial team, and the victim/witness staff assigned from the program to work with the witness. Using the information gathered, the team determines what type of assistance to offer and the approximate amount of money to be allowed to cover the costs. If the request is approved, the victim/witness advocate is responsible for making any hotel, travel, or other authorized arrangements. If the witness is found to need temporary relocation, the advocate first tries to place the witness with a relative. The second choice, if the witness is living in public housing, is to try to arrange for the person to move to another development, but this can rarely be done swiftly enough to make it a viable option. For the 10 to 15 witnesses each year who cannot move in with a relative or be quickly transferred to another public housing development, victim/witness advocates have the witnesses find suitable apartments on their own and send the program documentation of their new addresses; then the program provides money for damage deposits and the first month's rent. On occasion, an advocate may ask the director of a victim/witness assistance program in another jurisdiction to locate temporary housing for a witness. Advocates try to arrange for any case manager the witness may have (such as a social worker) to take care of such time-consuming logistical problems as switching the children's school records rather than assume the burden themselves. The entire team meets weekly to review the status of any witness who receives special assistance for longer than a week. To pay for relocation services, such as reimbursement for out-of-pocket expenses, the prosecutor uses county funds earmarked for witnesses. o New York City. In New York City, the Manhattan District Attorney's Office spent approximately $775,000 in 1994 to protect 134 witnesses. Most of the money was spent on hotel and motel costs for witnesses waiting for public housing transfers or placement with friends or relatives. The average stay for a witness in a motel was reported to be approximately one week, but some witnesses stayed only a few days, while others were housed in hotels for more than three months. Emergency hotel costs for one family were reported to exceed $100,000.[1] This heavy reliance on hotels and motels was largely a result of a shortage of public housing. Witness security staff in the Manhattan District Attorney's Office estimated that a priority case might be relocated within public housing in three to six months and that new Section 8 certificates (see below) could be completed in three months, but they cautioned that relocation could take anywhere from between three weeks to more than a year depending on the case. Nonetheless, the witness aid services unit completed 484 housing relocations in 1994, 41 percent more than in 1993. Only in exceptional cases do investigators place witnesses out-of-State or work with Federal authorities to effect a permanent relocation. Despite the difficulties encountered in administering this program, the effort is reported to have significantly improved the prosecutor's ability to obtain witness cooperation and convictions in drug, gang, and homicide cases. (See the program evaluation data in appendix D.) o Washington, D.C. Short-term relocation is the core of the witness security program in Washington, D.C. In the District of Columbia, the U.S. attorney fills the role usually assumed by a local district or State's attorney. The U.S. Attorney's Office in Washington, D.C., differs from both other U.S. Attorneys' offices and local prosecutors' offices in that it currently participates in the Short-Term Protection Program, a Federal pilot program for relocating threatened or intimidated witnesses temporarily. However, unlike many local prosecutors, the U.S. Attorney's Office has no source of funding for the emergency placement of witnesses in hotels or motels, or for informal protection arrangements such as a bus or plane ticket to send an intimidated witness to stay briefly with out-of-town relatives or friends (although possible funding options for these services are being considered). As a result, the Metropolitan Police Department is called on to provide immediate assistance to these witnesses until the individuals can be authorized by the U.S. Department of Justice for emergency protection (usually within 24 to 72 hours) under the Short- Term Protection Program. However, because the department has only limited funds for witness protection, some witnesses are left without protection until they are authorized for temporary Federal protection. The Short-Term Protection Program is a derivative of the Federal Witness Security Program and is administered under the authority of the Witness Security Reform Act of 1984. It is overseen by the Office of Enforcement Operations of the U.S. Department of Justice and administered by the U.S Marshals Service. The project uses U.S. marshals to relocate threatened witnesses and their families out of the District and to guard them during testimony, but it does not give witnesses new identities or, except on rare occasions, education or job assistance. Typically, witnesses are housed in hotels or motels for a month or longer while the application and approval process is completed for a transfer from emergency program authorization to the full short- term program authorization, which moves all participating witnesses out of the jurisdiction. The Short-Term Protection Program uses public housing transfers and HUD-assisted housing placements as a part of its witness protection efforts, as well as private rental housing. Hotels and Motels Police investigators or prosecutors in almost every jurisdiction use hotels and motels for emergency relocation and, when no other options are available, for short-term relocation. Using motels provides an instant, if short-term, solution to witness fears. When the danger to a witness (or the witness's family) is immediate and genuine, a motel functions as a form of safe house where the person can be hidden or -- in extreme cases -- guarded while victim services advocates, the prosecutor, or investigators search for a longer-term relocation option.[2] Most jurisdictions rely on police officers or sheriffs to transport endangered witnesses to hotels or motels for emergency relocation. Although some prosecutors or victim services advocates perform this job, many consider it too dangerous for civilians. When possible, the assignment is given to law enforcement officers who have received special training in the secure moving of witnesses or dignitaries (see the box "Special Security for Moving Witnesses") because the evacuation of witnesses and their family members can be a dangerous and logistically difficult process. For example, Baltimore City sheriff's deputies commanded by Captain G. Wayne Cox, who had received special tactical training from the Prince Georges County (Maryland) Sheriff's Office, were called on to evacuate a witness and her 13 children who were being pursued by several intimidators. The sheriff's deputies coded the children by the color of the cars in which they were to be transported and then shielded them as they ran to the vehicles. The evacuation took only 30 seconds. Short-Term Relocation With Out-of-Town Family Members or Friends For many prosecutors, the first -- and sometimes only -- short-term relocation option is to offer a witness a bus or plane ticket out-of-town. Victim services advocates, prosecutors, and police investigators often inquire about out-of-town friends or relatives with whom the witness or his or her family might stay before discussing more costly alternatives. The advantages of using friends and relatives as safe havens are that the relocated witnesses are o less likely to return to the jurisdiction due to the expense and difficulty of travel, o less likely to endanger themselves by contacting old associates or local family members due to loneliness or boredom (as is common with witnesses housed in hotels or motels), o generally less of a financial burden to the program, even if a stipend is given to the sponsoring family (in the majority of cases no further financial assistance is offered), and o unlikely to be the victims of violent intimidation attempts, because prosecutors and police investigators agree that when the location of the witness is a secret, no further police protection is needed until the witness returns to testify. Because they often do not have the self-restraint to avoid their old neighborhoods and need constant family support, "relocating witnesses with out-of- State relatives is especially important if you need to protect juveniles," says Lieutenant Earl Sanders of the San Francisco Police Department. "We sent one young witness to live with an aunt in Memphis. We spent only $250 for a bus ticket and $300 for a couple of months to help the aunt with the kid's living expenses." In short, witnesses staying with friends or family members are provided with the sort of social and emotional support that the prosecutor or victim services advocate cannot furnish. In addition, the witness's travel to and from the jurisdiction to testify is usually paid out of the prosecutor's witness travel fund, instead of the typically limited witness security budget. In San Francisco County, the district attorney's office relocates approximately 20 people per year, about a third of whom are sent to stay with family or friends. Prosecutor Alfred Giannini gave the example of a case in which the witness, a mother, was housed in a hotel, while her teenage son was sent to live with relatives in Alabama. With the permission of her mother, Lieutenant Earl Sanders sent a 14-year-old witness to live with her grandparents in Samoa at a cost of $800 for airfare. The juvenile was essential to securing the conviction of two murderers. Police officers and prosecutors offered the following advice regarding family- and friend-based relocation: o Advise witnesses not to choose to stay with a close friend or family member who is known to the defendant and may therefore be contacted by the defendant or his or her associates. o Check to make sure that the witness is not engaging in any criminal activity at the new site. o Before buying the ticket, check with the friend or relative to confirm the person is willing to receive and keep the witness until trial. o Screen requests for relocation with distant family members carefully around Christmas and Thanksgiving, to eliminate people who try to exploit the system to obtain free holiday travel. o Arrange to send any support payments for minors directly to the out-of-town relative, and provide the first month's support payment immediately. o Reevaluate each placement every six months and end support after one year, unless there is a continuing threat. o Check with the witness and host family member or sponsor on a regular basis to make sure that the witness is still available to testify and has not revealed his or her whereabouts to anyone in the old neighborhood (such as receiving phone calls or visits from a former girlfriend or boyfriend). o Notify the local law enforcement agency of the witness's relocation -- innocent witnesses may need protection if their location is discovered, while witnesses with criminal records may pose a danger to the new community. Social Services and School Enrollment Many intimidated witnesses receive social service benefits such as Aid to Families with Dependent Children (AFDC), food stamps, Medicaid, Medicare, Social Security, or disability payments. Because the prosecutor or investigator becomes responsible for maintaining a relocated witness for some period of time, it may be necessary to assist the witness in transferring all his or her social services to the new location as soon as possible and in a secure manner. Prosecutors also report assisting witnesses with children to transfer school records to the new district in a confidential manner. Some prosecutors, such as the Philadelphia and Manhattan district attorneys, have specially assigned coordinators who assist with the transfer of services; other prosecutors, and some police investigators and victim advocates, have liaisons within the various agencies involved who assist with the confidential transfer of benefits. For example, in the newly organized Baltimore Witness Security Program, the State's Attorney's Office is seeking a memorandum of understanding with the Department of Social Services to ensure the speedy and confidential handling of social service transfers for intimidated witnesses. Gary Balzer, former director of social services for the City of Baltimore, noted that this department has a particularly important role to play in witness protection because "so many intimidated people are already on public assistance." In fact, all 11 witnesses who participated in the witness security program in its first year of operation were covered by Aid to Families with Dependent Children (AFDC). The Department of Social Services arranges the transfers of benefits -- including AFDC, food stamps, Medicaid, and emergency food -- through the agency's executive office to help maintain confidentiality. In the first few cases, the State's Attorney's Office has called the contact person in the department with the new addresses of witnesses; the department disguises this information in its computerized records so that it will not be available to the hundreds of workers who use the system. Although the Baltimore program is new, Balzer offers the following advice for working with social service agencies: o Cross-training is essential. The prosecutor's office or police investigator responsible for managing the witness must have a working knowledge of social services eligibility requirements and the bureaucratic process. o Cooperative agreements at the highest level are essential. For security reasons, one person should be assigned to witness services transfers, and that person needs high-level authority to disguise or hide data and to expedite requests for services. o Whenever possible, use electronic means to transfer benefits. Some jurisdictions now have technology that allows social services recipients to draw their benefits directly from automatic teller machines (ATMs) throughout the area, thereby avoiding the need for time-consuming changes of address when witnesses move. Drug Treatment for Addicted Witnesses Many prosecutors reported struggling to meet the needs of addicted witnesses who had been relocated. Addicted witnesses are more likely than others to endanger themselves by returning to their old neighborhoods, recontacting dangerous gang members to buy drugs, and failing to manage support money appropriately. The U.S. attorney in Washington, D.C., had in the past occasionally placed addicted witnesses in residential drug treatment facilities but now feels that 12-step programs such as Alcoholics Anonymous and Narcotics Anonymous can stabilize most witnesses for testimony. The prosecutor believes that self-help groups are available at a lower cost than residential treatment programs and that residential programs are frequently unsuccessful in creating long-term behavioral change. In another jurisdiction, when a homicide detective needs to find treatment for a witness who is also a drug addict, he has to negotiate for a bed in an inpatient program, usually through a quid pro quo. On one occasion, the detective was able to place a witness with the Salvation Army because he had previously helped its director to get some city property rehabilitated that had been a blight in the neighborhood. On another, he was able to get an addicted witness placed at the top of a waiting list for an inpatient program run by a local minister; previously, the clergyman had called the detective for help with traffic jams that arose each year when the minister distributed Easter and Christmas baskets, and the detective had called the traffic department to request that officers be assigned to direct traffic during those two days. How Long Must a Witness Remain Relocated? There is a significant difference of opinion concerning the importance of permanent versus short-term witness relocation. A majority of prosecutors and police investigators interviewed for this report testified to the effectiveness of programs that seek to compel witnesses to remain relocated only for the minimal period necessary to ensure their safety. Advocates of short-term relocation estimate that most intimidated witnesses can return to their communities within a year, or after the relevant trial is completed and the defendants are incarcerated. Prosecutors in Los Angeles disagree, stressing that the risk involved in testifying against an established gang in their city requires witnesses to move permanently and to sever all ties with former friends and family members from their old community. These differences of opinion are probably attributable to the differences in the types of gangs that operate in these jurisdictions. For example, while the gangs -- or "crews" -- in Washington, D.C., have a record of ruthless witness intimidation, most are not large or nationally well-connected organizations. As a result, once crew members and their associates are incarcerated, there is probably little need for witnesses to fear further retribution; in fact, as of the end of 1995, no witnesses who had participated in the District of Columbia's short-term Protection Program had been killed following the conclusion of a successful prosecution. On the other hand, in California some gangs have multigenerational memberships and connections throughout the State, the prison system, and much of the rest of the country. In Los Angeles, retribution against witnesses and their families continues past trial. For witnesses testifying against such well- established national gangs, permanent relocation may be the only safe alternative. Permanent Relocation Permanent relocation by local prosecutors is more a matter of program objectives than a particular procedure. Any relocation beyond a short-term stay in a hotel or safe house can be permanent if the witness is willing to stay in the new location and abide by the program rules regarding communication with friends and relatives from the former neighborhood. As noted above, Los Angeles prosecutor Michael Genelin strongly advocates the permanent relocation of all intimidated witnesses in gang cases (although most prosecutors in other jurisdictions use short-term alternatives). In New York City in 1994, the Queens District Attorney's Office permanently relocated half a dozen witnesses, using new identities. In Rhode Island, where local relocation offers little safety, the State's attorney general (who acts as a district attorney due to the size of the jurisdiction) has reimbursed the U.S. Government for the cost of participation of State witnesses in the long-term Federal Witness Security Program (see box). Permanent relocation need not cost more than short- term relocation. The primary expenses in each are the move itself, initial housing costs (first and last month's rent, and security deposit), and any initial support necessary until social services benefits can be transferred or a job can be found by the witness. A worthy program objective might be for witnesses to achieve financial independence following an initial adjustment. From the standpoint of the prosecutor, it may be much easier to obtain witness cooperation if the relocation is not expected to be permanent because witnesses are understandably reluctant to abandon friendships and break family ties. However, Michael Genelin points out that prosecutors must act responsibly toward witnesses, which means that witnesses who are intimidated again after they return to their neighborhoods, or are discovered due to their own carelessness, must be relocated again at additional expense. Genelin considers it to be safer for witnesses and more efficient financially for the government to insist on permanent relocation from the beginning. To relocate intimidated witnesses on a permanent basis, a few prosecutors and police investigators make occasional use of the Federal Witness Security Program. Lieutenant Earl Sanders of the San Francisco Police Department has used the Federal program a few times in his career as homicide inspector and reports that on those occasions it has been beneficial. However, Sanders adds that "short-term relocation and assistance is usually more effective than the Federal program. Witnesses don't want to give up so much [such as their names, homes, jobs, friends], and they really don't have to." Instead, most prosecutors and police investigators interviewed for this report rely primarily on public housing transfers for permanent relocations because many intimidated witnesses either are currently in public or subsidized housing or are on the waiting list to receive these benefits. (This is not surprising since most serious gang and drug crime is concentrated in the poorest inner-city neighborhoods and housing projects; residents of these neighborhoods are the most likely to witness gang- and drug-related crime.) In general, prosecutors found that within a large city permanent transfer to another public housing development within the city was often sufficient to provide the witness with security. In smaller jurisdictions, or in jurisdictions where gangs are well organized and in communication with other local gangs, it may be necessary to relocate witnesses outside the city. In San Francisco, Lieutenant Sanders has found it necessary to work with housing officials in neighboring Oakland and beyond in order to protect witnesses from defendants in cases involving large, highly structured gangs with good communication networks. Public Housing Programs The U.S. Department of Housing and Urban Development (HUD) offers two principal subsidized housing programs to qualified individuals, both of which can be used in structuring a witness relocation program. o The Public Housing Program provides Federal funds to local housing authorities for the purpose of developing and maintaining publicly owned residential property for housing eligible families (and, in certain cases, individuals) at assisted rents reflecting low-income families' ability to pay. o The Section 8 program provides qualified individuals with certificates and vouchers entitling them to a Federal rent subsidy, which can be used to assist with rent payment for a privately owned house or apartment. Under tenant-based Section 8, the U.S. Government provides local housing authorities (PHAs) with funds, with which the PHAs in turn make payments to private property owners on behalf of eligible tenants. The certificate or voucher makes up the difference between 30 percent of a tenant's "adjusted" income and an approved "fair market rent," adjusted for family size and local cost levels. Section 8 housing certificates and vouchers are particularly useful for local witness relocation because they allow police investigators and prosecutors to place witnesses outside neighborhoods frequented by gangs and drug dealers; Section 8 certificates and vouchers can be used in middle-class areas of a city, where neighborhood-bound gangs are less likely to venture. There are serious barriers to relocating anyone, including intimidated witnesses, under the Section 8 program. Section 8 certificates are usually in extremely -- and often increasingly -- high demand. (In Baltimore, with a total population of only 600,000, there are 21,000 families on the waiting list for Section 8 housing.) In addition, many landlords will not accept tenants who rely on Section 8 assistance. Above and beyond the problems associated with increasing demand and the unwillingness of some landlords to accept individuals with Section 8 vouchers, local PHAs lack the money to pay for relocated tenants' moving expenses, first month's utilities, rental deposits, and other expenses of moving. (To address this obstacle, HUD is in the process of creating a centralized dedicated fund and procedures through which to pay for emergency relocations of intimidated witnesses under the Section 8 program.) PHA Discretion in Assigning Housing Units The Department of Housing and Urban Development authorizes PHAs to permit certain categories of individuals who are already in one of their programs or on one of their waiting lists to move to the top of the waiting list. These categories include victims of hate crime and domestic violence; applicants who have been or will be involuntarily displaced due, for example, to disaster (such as fire or flood) or government action (such as code enforcement or public improvement); and tenants whose physical impairment prevents them from using critical elements of their current housing unit. Intimidated witnesses are another group that now qualifies for receiving preference if o "[f]amily members provided information on criminal activities to a law enforcement agency," and o "[b]ased on a threat assessment, a law enforcement agency recommends rehousing the family to avoid or minimize a risk of violence against family members as a reprisal for providing such information."[3] This local discretion applies both to HUD's Public Housing Program and to its Section 8 program. As shown in the box "Letter from the HUD Assistant Secretary," administrators at HUD have sought to clarify to PHAs that they have the legal authority to move intimidated witnesses to the top of the waiting list and have encouraged PHAs to do so. Notice PIH 94-51 (HA), which the assistant secretary sent to all local PHAs on August 3, 1994, also emphasized the eligibility of intimidated witnesses for preferential treatment and included a copy of the Federal Register of July 18, 1994, which incorporated the law. Furthermore, administrators at HUD, including G.L. Isdell, National Coordinator of Anti-Drug/Violent Crime Initiatives (Operation Safe Home), Elizabeth Cocke of the Office of Community Relations, and Richard Trebelhorn of the Office of Public and Assisted Housing Operations, have made clear that local PHAs have the discretion to set aside a designated number of units (under the Public Housing Program) or certificates (under the Section 8 program) for the exclusive use of intimidated witnesses who are on the waiting list for public housing or Section 8 certificates or who are already participating in these programs. Finally, HUD's Anti-Drug/Violent Crime Initiatives, known as Operation Safe Home, which makes an array of HUD resources available to local law enforcement to fight violent and white- collar crime, is another demonstration of HUD's policy to encourage PHAs to make units available, even on a priority basis, for witness relocation purposes. Local PHAs have discretion about whether to move intimidated witnesses to the top of the list -- or whether to move any tenant in any one of the preference categories to the top of the list. As a result, intimidated witnesses who need to be relocated swiftly must compete with other tenants in the other preference categories who may also merit priority handling. Furthermore, HUD officials warn that competition for relocation among preference categories is likely to increase. As the number of individuals approaching or falling below the poverty line in the country rises, the number of tenants who fall into one of the preference categories will also grow. As a result, PHAs will have to allocate a fixed or even decreasing number of available units among an increasing number of tenants eligible for preferential treatment. The Federal Housing Administration, as authorized under the National Housing Act of 1934, allows HUD- owned single-family and multi-family properties that have been taken off the market to be made available temporarily by local HUD offices for temporary occupation by intimidated witnesses. Prosecutors in the District of Columbia, Maryland, and Virginia have used this option several times. The witness enters into a lease and pays a low rent to HUD through a property management company. This program has the advantage of making relocation available to individuals who are not currently receiving public housing or are not on a waiting list for it. However, only 100 such units are available for this purpose in the country. Furthermore, there have been instances in which witnesses who have been provided the option have damaged the property, demanded constant repairs, or been unwilling to move out once the house is ready for sale. For these reasons, this option is available only as a last resort. Further information about the program is available from Ann Sudduth, Director, Single-Family Property Disposition Division, at HUD's Washington, D.C., offices, (202) 708-0740. Some PHAs Provide Expedited Processing The Housing Authority of Alameda County (Hayward, California) has been able to relocate witnesses on Section 8 in only two weeks. In Baltimore, cooperative arrangements between the prosecutor's office and the public housing authority have occasionally reduced the time needed to transfer witnesses to between one to two weeks (although the wait is often longer for large housing units). The New York City Housing Authority distributed a detailed set of instructions to all district directors, district supervisors, and project managers in 1991, setting out emergency transfer procedures for intimidated victims and witnesses. The memorandum (see appendix E) reviews the joint emergency transfer policy established among the housing authority's management department, the city's victim services agency, and the regional HUD Office of the Inspector General (OIG). The memorandum requires that "the processing of all requests [for transfer of victims of domestic violence, intimidated victims, and intimidated witnesses] must be given the highest priority [emphases in the original]." The procedures in the agreement include immediate processing once the referral is received from the district attorney's office, manager approval or disapproval of the transfer request within two working days (unless a