Terrorist Intimidation: Witnesses, Jurors Protection Overlooked in NYC Terrorist Trial

by: jim kouri | published: 11 19, 2009

Attorney General Eric Holder's decision to prosecute murderous, fanatical terrorists -- including the 9-11 mastermind Khalid Sheikh Mohammed -- speaks volumes about his ignorance of a major problem with protecting witnesses and members of a jury in a case involving terrorism or organized crime.

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. They've also found it difficult to protect jurors or their families.

This problem is particularly acute, and apparently increasing, in gang, terrorism, 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 and jury tampering. 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, expanding victim/witness assistance services, and sequestering jury members at an undisclosed location..

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.

Most innovative witness security programs include provisions for relocating genuinely endangered witnesses, and most of the prosecutors and law enforcement officers interviewed report that confidential witness relocation is the core protection service that all programs need to provide. Respondents identified three levels of relocation:

• emergency relocation -- placing the witness and his or her family in a hotel or motel for up to a few weeks;
• 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
• 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.

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.

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.

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.

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: US Department of Justice, National Criminal Justice Research Service, New York City Police Department, National Association of Chiefs of Police

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