Can I get a Witness?
A FEW YEARS AGO, Jose Sarabia was attacked by two members of California’s Barrio Elmwood Rifa (BER) gang. Sarabia was a former member of a rival gang that was no longer operating at the time of the attack. Sarabia was beaten so badly that his skull was shattered and his eye socket crushed. Jared Moses, criminal prosecutor in the Los Angeles County District Attorney’s Office, handled the case, and he expected Sarabia to testify against his attackers during the trial.
In the lead-up to the trial, one defendant’s family member, who was also a fellow gang member, threatened Sarabia, saying that something bad would happen if he showed up in court to testify. It scared Sarabia enough to keep him away from the trial, and Moses was forced to announce that he was unable to proceed. The case was dismissed.
Unfortunately for prosecutors and crime victims throughout the country, witnesses often back out in gang-related cases. Also common are witnesses who show up to trial and deny their prior statements about the crime.
Moses estimates that intimidation causes witnesses to recant their initial testimony in at least 60 to 70 percent of gang cases in his district. Baltimore City State’s Attorney Patricia C. Jessamy testified in Congress that intimidation occurs in 90 percent of her office’s homicides.
New Jersey State Senator Raymond Lesniak (D-Union) has stated that sometimes “prosecutors will not pursue a criminal case unless there are multiple witnesses to the crime,” because intimidation is so damaging to cases. As a result, crimes are going unsolved and gang criminals are going free.
Intimidation can take many forms. In response, legislators, prosecutors, law enforcement, and even youth and community outreach groups are trying to find threat mitigation strategies to overcome the problem.
Forms of Intimidation
Witness intimidation comes in various guises. There is overt or explicit intimidation, which John Anderson, who works in the antigang unit at the Orange County (California) District Attorney’s Office, describes in a 2007 National Gang Center Bulletin as encompassing everything from explicit threats to property damage to violence.
Intimidation also includes implicit threats, such as wearing a Stop-Snitchin’ t-shirt to trial (more on the stop snitching phenomenon later). Jake Wark, spokesman for the Suffolk County (Massachusetts) District Attorney Daniel Conley’s Office says that one of the more unique implicit threats he remembers was a case several years ago where grand jury testimony—which is supposed to remain secret—was attached to the front doors of the homes in the housing development where both the witness who appeared before the grand jury and the defendant lived.
That incident was “absolutely chilling,” says Wark.
Investigators are trying to understand the different types of threats they deal with now, such as graffiti, says Andrew Grascia, president of the New York Gang Investigators Association (NYGIA). “Gangs operate by using graffiti to show intimidation and control of an area,” says Grascia. Prosecutors and law enforcement need to take graffiti as seriously as they would a threatening letter, he adds.
“The type of intimidation that we’re dealing with now in the late 20th and early 21st centuries is coming out of densely populated urban areas in which the suspect, the victim, and the witnesses all live in very close quarters, often the same block,” explains Wark.
It’s easy for gangs to intimidate, because they are “a very visible presence in these neighborhoods,” says Moses.
Gangs also exploit a “burgeoning counterculture” that denigrates cooperation with law enforcement, notes Wark.
Nowhere is such a culture more on display than in the empire of Stop-Snitchin’ DVDs and apparel and in the music of rap artists such as Ice Cube and The Game, who warn people not to snitch or trust the police. The first Stop- Snitchin’ DVD was released in Baltimore in 2004 and featured NBA star Carmelo Anthony, who grew up there.
Who’s a snitch? “Snitch” has traditionally been the derogatory name for a confidential informant who is offering testimony against associates or fellow gang members in exchange for a reduced sentence. Police and prosecutorial use of informants in drug cases has proliferated in recent decades.
The “jailhouse snitch” and the street informant have long been denigrated by local culture. But now, the concept of snitching is being conflated with helping police in other ways, such as testifying as a witness to a crime.
Last year, Rick Frei, a psychology professor at the Community College of Philadelphia, had his class conduct a study to determine attitudes toward snitching and working with police. The research included a survey of college students who hailed from various neighborhoods in Philadelphia.
The survey found that students classify a wide range of activities as snitching, from answering police questions at a crime scene to ratting out a classmate who cheated on an exam. However, the study found that overall perceptions of what constitutes snitching are proportional to the amount of initiative the interaction requires.
For example, answering questions at a crime scene was deemed snitching by only 15.8 percent of respondents, while picking a suspect out of a lineup was labeled as snitching by 28.6 percent, and ratting on someone else to avoid responsibility for a crime was viewed as snitching by 82.6 percent of respondents.
Some are blaming the Stop-Snitchin’ DVDs and hip hop artists, such as the rapper Cam’ron, who refused to cooperate with police when he was shot during a Washington, D.C., carjacking for spreading the phenomenon. Jessamy handed out copies of the Stop-Snitchin’ DVD to legislators in an effort to motivate them to pass witness intimidation legislation.
More than one-third of Frei’s survey respondents said that they listened to music that explicitly states that snitching is bad, but there was no clear indication that the music shaped their views on the subject. Only 5 percent said they were directly influenced by such music.
Whether someone would know how the music influenced him or her is uncertain, but it’s also possible that respondents get the same message more broadly through the community. That’s Frei’s viewpoint.
“I don’t think it has as much of an influence as people think it does. I think it’s the other way around. I think people who already live in environments where they don’t trust the police are drawn to music that expresses their feelings,” he says.
Wark agrees with that view, saying, “The creation of Stop-Snitchin’ t-shirts [and music] didn’t start a movement toward noncooperation with law enforcement—it expresses a feeling of noncooperation with law enforcement.”
At the same time, however, “It brings a slogan, it brings an image, it brings an easy phrase to the table, which culturally can propel something that otherwise might fade out on its own,” he says.
Grascia agrees, saying the culture of silence has always existed, but “the hip hop environment, the youth environment has taken it to a whole new level and brought it to mainstream America.”
Not empty threats. Aside from the no-snitching code, witnesses also don’t cooperate with the police because they don’t have faith that the criminal justice system will protect them. They have good reason to worry.
Lianne Archer, a vice president with the NYGIA and a school social worker, cites the example of a youth in her school who told a police officer about a gang initiation that involved stealing iPods and phones. The police officer told the thieves the name of the informant. The gang then beat the adolescent witness in retaliation. Although such a case is not the norm, Archer says it does happen.
Other cases are even more serious. Several cities and states have seen highly publicized murders of gang trial witnesses in recent years. Victims have included families, pregnant women, and even children, such as 10-year-old Qua-Daishia Hopkins, who was killed in an arson fire earlier this year in New Jersey after her mother testified against a drug dealer.
Youth are particularly vulnerable to intimidation, because they are less likely or less able to hide from intimidators and more susceptible to peer and family pressure, according to a 1996 National Institute of Justice report called Preventing Gang-and Drug-Related Witness Intimidation.
Ironically, by bringing attention to snitching, the Stop-Snitchin’ movement may have unintentionally helped motivate the establishment to take action against it. Maryland finally passed a law against witness intimidation in 2005 (after several failed legislative attempts) following Jessamy’s distribution of the DVDs. Other states have passed similar laws.
Numerous states have been increasing witness-intimidation penalties as well. New Jersey recently passed a witness-intimidation and witness-tampering law that toughened penalties on those found guilty of such crimes.
“The bill will not boost the confidence of witnesses overnight,” says the bill’s cosponsor, state Senator Shirley K. Turner (D-Mercer). “But coming down hard on criminals coupled with supportive strategies that are currently available for witnesses will gradually lessen and eventually end threats and attacks on witnesses,” she says.
At least 19 states had such laws in place as of 2006 (the most recent figure available), according to the National Conference of State Legislatures. The laws vary in their specifics.
California’s law for witness intimidation has “some real teeth,” says Moses. For example, if a person is found to be intimidating a witness for the benefit of a gang, the person can receive a life sentence.
Although witness intimidation is often difficult to prove, both Moses and Anderson say they prosecute witness intimidation frequently. And Moses once had a witness intimidation case that was easier to prove than the murder case the defendant was initially on trial for, because the defendant’s intimidation call to a witness was caught on tape. Moses chose to try the intimidation case first.
Hearsay exception. One controversial aspect of Maryland’s witness intimidation law is the so-called “hearsay” exception. Hearsay is a statement made by a witness outside of court that under certain circumstances is admissible as evidence in a trial. The allowance of such statements could help in cases where intimidation renders the witness too frightened to show up at trial. In those cases, the witness’s earlier statement could be used as evidence.
Opponents of this tactic have argued that the hearsay exception violates the constitutional right of a defendant to confront his accuser. In response to those objections, the bill was amended to require a higher burden of proof of intimidation when determining whether hearsay statements are admissible.
Defense attorneys, such as Timothy Mitchell of Mitchell & Saltz LLP in Greenbelt, Maryland, a former president of the Maryland Criminal Defense Attorneys Association, hailed the change, while some prosecutors say it rendered the provision useless. Mitchell says he has not yet seen the exception used in court.
Identity protection. One way to deter intimidation is to keep the witness list from being made public. Law enforcement tries to do that by, for example, redacting personal witness information from police reports and as far into the prosecution process as possible, says Moses.
“We’ll do everything we can to delay discovery until the last possible moment,” agrees Anderson.
California’s “discovery rules make it a crime for defense attorneys or defense investigators to share [witness] information with defendants,” he notes. To reinforce that, he’ll often get a special order that states the defense attorney cannot disclose witness information to the defendant. “But,” says Anderson, “as we all know, mistakes sometimes happen, and reports are given to defendants who will look at them. And…to avoid even the mistake of having reports or information handed over, that’s why we redact the stuff.”
A Massachusetts provision allows prosecutors to withhold grand jury testimony transcripts in certain cases. And New Jersey Sen. Turner is sponsoring a bill that would bar the disclosure of personally identifying information (except for names) of grand jury witnesses. Defense attorneys, not surprisingly, have objected to such provisions.
Witness protection. The federal witness assistance program run by the FBI is well funded. It sometimes provides for an individual and his or her family to get relocated with new identities in exchange for testifying in a trial. For crimes that are tried in state and local jurisdictions, these extensive resources are not available.
Given the different nature of what can be done at the state and local level, Jeanne Smith, director of the Division of Criminal Justice at the Colorado Department of Public Safety, favors the term “witness assistance.” Smith says the term “witness protection” gives “people a false sense of what we are really trying to do for most of these witnesses, which is more akin to providing emergency assistance on a short-term basis.”
She explains that the state is saying to a witness: “We may help you and your family move, or we will help you in some other smaller ways, but at some point in time in the very near future, you will be on your own again, and you have to find a job, and you are responsible for your rent and your housing, just like this was your life.”
She goes on to note, “And we don’t expect people to get new identities. We just expect them to cut off their ties to the dangerous situation.”
Clearly, Smith says, “it’s a very different focus than the commonly understood idea around witness protection in the federal system.”
Smith is still trying to work out how to better protect witnesses throughout the whole process. While the state requires that victim impact statements be sent to crime victims so that they know who they can contact if they’re threatened, Smith says, “We are working toward how we do outreach to witnesses who are not the named victim in the case but [who] may be just as much in danger. And we haven’t quite solved that problem yet.”
Witness intimidation often “peters out” after the trial is over, especially when there is a conviction, says Moses, so assistance often only lasts through the trial. However, he says, there have been exceptions where witnesses have been “threatened and harassed, beaten, or killed after the trial is over and sometimes long after the trial is over.”
States are responsible for implementation and funding of their own witness protection plans. Some states have been upgrading their programs in recent years.
In 2006, Massachusetts created a statewide program with an annual budget of $750,000. Also in 2006, Colorado legislators made changes to their program in response to increased witness threats and the murders of two gang-related witnesses. Those changes included “a requirement for law enforcement and prosecutors to offer annual training in the availability and use of the witness protection fund and a requirement that an assessment tool be developed to determine whether a witness was in danger,” says Smith.
Some of the more comprehensive witness protection programs, such as California’s, provide a range of services that include armed protection by police. But Grascia points out that, “You can’t pay a police officer to sit in front of someone’s house for the rest of his life to guard that family…. Some of the gangs are sophisticated enough to realize, hey, wait three months, wait six months, law enforcement will have to pull this guy back.”
In some of the more extreme cases, relocation is provided. Relocation is an expensive proposition. However, in gang situations, witnesses don’t necessarily have to be relocated very far. Sometimes it’s enough to simply move a person out of their neighborhood, says Moses. For example, in Los Angeles, “the gang universe is this relatively small patch of turf,” he says. “So if you take somebody out of that neighborhood, and you move them even two or three miles away, and put them up in an apartment, they may as well be on the other side of the country.”
The toughest relocation, says Moses, is when the person is a homeowner. According to Anderson’s Bulletin, “it is nearly impossible to relocate witnesses who own homes,” due to the lack of resources to sell the old home and assist in the purchase of a new one. The current real estate downturn makes the situation worse.
Assessments. One of the challenges for witness-protection programs is figuring out who is most at risk of intimidation or retribution. “Part of the problem is ‘How much money can you spend? Who’s really right for this witness intimidation? Who really should get the money?’” says Grascia.
There’s no concrete way to determine who is at risk, according to Smith. “What we are doing in Colorado is just trying to collect questions that should raise red flags and cause a little more intense conversation with that particular witness to try and determine whether or not they need assistance, should be moved out of the area, should be given some kind of home security system, whatever it might be. But as far as any scientific tool, we can’t find that it exists.”
Robert C. Davis works for the RAND Corporation and is a coauthor of the 2007 National Center for Victims of Crime report “Snitches Get Stitches.” He says that there should be research devoted to assessing whether witnesses in gang cases are at risk.
“In domestic violence, for example,” he says, “there are risk-assessment instruments where you can say, ‘Okay, if there was an incident, and there was an arrest made or something, what are the chances that this defendant, this abuser, is going to re-abuse, or is going to do something worse or maybe even kill the victim?’ There are instruments out there to try to put a number on that, to try to quantify it.”
He adds, “There’s nothing like that in intimidation and gang crimes. So, basically, everybody’s going by the seat of their pants.”
Such an assessment might need to be a state or local undertaking, rather than a one-size-fits-all federal model, simply because each city has different dynamics at play.
Resources. Some federal legislators attempted to provide more support to state and local witness protection efforts. Rep. Elijah Cummings (D-MD) has sponsored numerous such bills. His most recent effort, H.R. 933, the Witness Security and Protection Act of 2007, would provide $270 million to states over three years. A companion bill sponsored by Senator Charles Schumer (D-NY) was also introduced in 2007. A third bill, the Witness Protection Enhancement Act of 2007, introduced by Rep. Michael A. Acuri (D-NY), would have the United States Marshals Service create a short-term witness protection program for state and local jurisdictions. None of the bills passed before Congress adjourned.
Many jurisdictions often do not take advantage of their existing witness-protection resources. “Snitches Get Stitches” found that to be the case in some cities in Massachusetts.
Awareness training can help. After Colorado required that prosecutors and law enforcement offer witness-protection training, use of available funds increased 20 percent, says Smith.
It’s also important for the state or locality to actively make witness-protection resources available through outreach to the witnesses themselves. “There needs to be some kind of proactive effort made,” says Julie Whitman, coauthor of the 2007 “Snitches Get Stitches” report and program director at the National Center for Victims of Crime.
Whitman found in her research that the designated witness-assistance advocate will sometimes wait to be contacted by the witness, rather than reach out. But especially in cases involving youth, that approach doesn’t work because the witness is unlikely to initiate contact.
Community policing. Lack of trust between the community and law enforcement is a major obstacle to getting witnesses to testify. Archer and others say that when trust is evident, young people are much more likely to cooperate with the police.
And there’s evidence that children want this as much as society does. “Snitches Get Stitches” looked specifically at youth witness intimidation in various cities in Massachusetts. The report found that young people “expressed a desire for better relations with police officers and a sense of safety when those relationships were strong.”
There are community efforts to change public perceptions of police cooperation. Ronald L. Moten, cofounder of Peaceoholics, an outreach group that aims to diminish drug use and crime among youth, has held forums to bury the myths of Stop-Snitchin’.
“We believe that people have been deprived of their rights and been deprived of being safe,” because of their hesitancy to cooperate with police, says Moten.
Whitman’s study found that young people tend to have a good relationship with school resource officers, who are police officers assigned to schools, but often don’t trust, or have negative views of, police officers in their neighborhoods.
Neighborhood police officers have a dual role. Anderson’s Bulletin points out that they are patrolling for criminals and arresting gang members, but they must also build trust in the community. That aspect of the job can fall by the wayside, but such work is integral to gaining the trust of potential witnesses.
If police make an effort to be out in the community and come to people to help them before a problem arises, they get to know the people and the community gets to know them, says Moten. Then when they do have to investigate a crime, he says, the reaction won’t be: “‘Why they coming around? Oh somebody talking to them; they’re telling on somebody.’”
Joseph Mollner, a former commander of the St. Paul (Minnesota) Police Department who now works on antigang programs with the Boys and Girls Club of America, says he has even arranged activities, such as rock-climbing, between gang members and police officers to help build relationships.
In addition to the police, people in communities have to take the initiative to change the culture of noncooperation with law enforcement, says Moten. “Some people don’t believe that you should ever go to law enforcement, because they don’t believe the system treats [them] fairly,” says Moten. Moten advocates taking the approach of groups such as Mothers Against Drunk Driving, by forming organizations to make change.
Witness intimidation doesn’t have to lead to a lost conviction. After Moses was forced to abandon his initial prosecution in Sarabia’s gang-beating case, he immediately re-filed charges against the defendants with the hope that he could convince Sarabia to testify. He then went to the victim’s mother and told her about the courtroom snickering over her son’s no-show. She agreed to arrange a meeting between Moses and Sarabia.
Moses says Sarabia got so angry about the threats and “the idea of the [defendants] laughing while his head had been caved in that he became completely cooperative and showed up in court and testified. And these two guys went to jury trial, and they both got convicted and got long prison sentences.”
Many witness intimidation situations don’t end as well. But the case shows that communities, police, and prosecutors can win not only in court but also in the neighborhood—where the real battle against the gang mentality has to be fought.
Laura Spadanuta is an assistant editor at Security Management.