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
additional information is needed), and hand
delivery of all transfer requests to the city
housing authority's inspector general's office
within two working days. The agreement provides
that, after the completion of the rental interview,
the tenant must be advised not to state on the
move-out notice either the name of the new project
or the address of the new apartment and that the
Command Center for Relocated Families is to be
given as the tenant's forwarding address. 

For intimidated witnesses participating in all
these programs, HUD has instituted security
procedures to ensure that witness locations cannot
be discovered by anyone accessing a central file or
data base. In the HUD field office in Washington,
D.C., a designated staff that handles all transfers
(approximately 45 in 1994) keeps all the files
coded and locked up. The HUD rules for witness
protection in public housing published in the
Federal Register explicitly make provision for
establishing appropriate safeguards to protect the
identity of threatened witnesses who have been
relocated. 

Suggestions for Working With PHAs 

Delays in securing public housing transfers can
jeopardize the safety of intimidated witnesses,
compromise the police investigator's and
prosecution's case, and increase the cost of
witness management if in the meantime witnesses are
housed for weeks or months in hotels at public
expense. These are compelling reasons for
expediting the process. It is critically important
that prosecutors and investigators, or the
jurisdiction's victim/witness program coordinator,
learn about HUD's guidelines for witness relocation
and try to secure cooperative agreements with PHAs
(such as the one arranged in New York City and
discussed above), including endorsement of the
agreements from top State housing officials. For
assistance in this collaborative effort and with
the relocation of individual witnesses on an ad hoc
basis, observers offer the following suggestions: 

o Defuse the waiting list barrier. If a witness
needs to be relocated from one public housing
development to another development within the same
jurisdiction (city or county), the waiting list
issue should not be a problem. Relocating a witness
to another development automatically makes the unit
that the witness is vacating available to the next
person on the list. As a result, relocating the
witness to another development does not extend the
wait for the family currently at the top of the list. 

o Ask about floating vouchers. If it is a Section 8
voucher that is being sought, ask the housing
authority how many "floating vouchers" it has.
Every public housing authority has some floating
vouchers because vacancies are not filled
immediately as tenants go off Section 8. Ask if the
witness could be given one of these vouchers. 

o Advocate with landlords. Point out to landlords
who accept Section 8 tenants that intimidated
witnesses are likely to make better than average
tenants because they have shown they are willing to
do their civic duty even at some personal risk. 

o Become informed about HUD requirements.
Familiarize yourself with the documentary
requirements of the various HUD programs and look
for ways to expedite the acquisition of these
documents for witnesses. Housing authority
officials have observed that they may experience
delays in moving witnesses who do not have the
appropriate documentation -- for example, birth
certificates or Social Security numbers. 

o Get additional information. For clarification of the
preference rule for intimidated witnesses, contact
G.L. Isdell, National Coordinator, Anti-Drug/Violent
Crime Initiatives (Operation Safe Home), at (202)
708-0390, by fax at (202) 708-1354, or by mail at: 

Office of the Inspector General U.S. Department of
Housing and Urban Development 451 7th Street, SW,
Suite 8280 Washington, DC 20410. 

Conclusion 

Most investigators and prosecutors consider it
essential to have the option to relocate selected
witnesses on an emergency or short-term basis.
However, since it frequently involves a considerable
commitment of monetary resources and staff time,
as well as negotiation and frustration, relocation is
not used as often as officials would like. While
some of these barriers may be inevitable, police
administrators and county attorneys can reduce
them significantly by increasing the funding
available for relocation activities and by
negotiating personally for permanent assistance
from the other agencies that this chapter has
identified as sources of help with relocation
activities, including local housing authorities,
social services agencies, and out-of-jurisdiction
law enforcement agencies. 

------------------------------

How Far Away? 

Prosecutors and police investigators differ on how
remote emergency and short-term relocations need to
be from the source of the threat. Some prosecutors
report that the lives of gang members are often so
insular that a move to a hotel across town is
sufficient protection for intimidated witnesses;
others believe that there are significant
advantages to placing a witness outside the
jurisdiction and, whenever possible, in another
State. A police inspector in San Francisco placed a
witness with her grandmother in Samoa pending
trial; a prosecutor in Des Moines relocated a
witness to Vietnam. New York City gang prosecutor
Walter Arsenault observed that intimidated
witnesses "always go back, so the farther away the
better." In practice, however, long- distance
witness relocations are the exception. Most
prosecutors feel that local relocations -- for
example, between public housing developments in the
same city -- are adequate to protect most
witnesses. 

------------------------------

Relocated Witnesses Have Many Needs 

In addition to housing, witnesses relocated on an
emergency or short-term basis have a wide range of
needs and rely on prosecutors, police
investigators, and victim/witness assistance
program staff for everything from basic
necessities, such as food, to more complex needs
like referral to substance abuse counseling and
emergency medical care. Some prosecutors and police
attempt to provide a flexible array of services to
relocated witnesses (all focused on ensuring that
the witness will be available to testify); others
provide only those services that meet the most
basic needs of the witness. 

o Witnesses in hotels usually require a per diem
stipend for food and other necessities. 

o One prosecutor reported that he needed to go to
one witness and her family on a daily basis to dole
out their food subsidy in order to prevent the
witness from spending the entire week's allotment
in one night. 

o Prosecutors told of supplying everything from
diapers to methadone for witnesses in hiding.
California has written guidelines specifying the
expenses that can be authorized for relocated
witnesses, including food, transportation and
travel expenses to the new area, emergency lodging
(for up to 21 days), and moving expenses. More
telling, however, is the list of specified
nonreimbursable witness expenses, which includes
private transportation not related to testifying,
medical and dental care, alcohol, tobacco, pet
supplies, cosmetics, candy, books and magazines,
furniture, and cable television service. 

------------------------------

Special Security for Moving Witnesses 

In especially threatening cases, police officers
need to take extra precautions when they move
witnesses to temporary housing. These tactical
measures are covered in a five-day training course
offered by the Prince Georges County (Maryland)
Sheriff's Office. The course explains how to set up
a special witness team and provide dignitary and
witness security. Using a 120-page in-service
training module, the course provides guidance in
developing route surveys, staking out a hotel, and
doing a site survey for a potential safe house;
engages trainees in simulated on-road motorcade
driving techniques, ways to lead and follow the
protected vehicle, the use of decoy vehicles, and
moving witnesses from the vehicle to the courthouse
and back to the vehicle; provides hands-on training
in moving people in and out of hotels; and gives
instruction in courthouse security. Additional
information on the course is available from Colonel
Gerry Powers, Assistant Sheriff, Office of the
Sheriff, Prince Georges County, 14524 Elm Street,
P.O. Box 548, Upper Marlboro, MD 20772, (301)
952-4000. 

------------------------------

Tips for Moving Witnesses Safely to and From 
Hotels and Motels 

Police investigators and prosecutors offered a
number of suggestions concerning placing witnesses
in motels and hotels. 

o Whoever transports the witness should be dressed
in street clothes and drive a civilian car. One
prosecutor reported having to relocate a witness
after the police delivered him to the chosen motel
in a squad car and then used a uniformed officer to
check him in, thereby identifying the man as a
protected witness. Precautions to disguise the
escort should also be taken by whoever has
responsibility for transporting the witness to and
from court and to meetings with the prosecutor.
Other police officers recommend the use of side
entrances or service elevators, and avoiding motel
and hotel lobbies. 

o A number of police investigators and prosecutors
charged witness's rooms to their own credit cards -
- or to another account that was not easily
identifiable as belonging to the police department
or district attorney's office -- and preregistered
them under false names. Often the motels were not
notified that the guest was a protected witness.
However, one prosecutor cautioned that room
payments should not be refundable to the guest --
in one case a witness had gotten a refund, left the
hotel to commit a crime, and returned. 

o In Las Vegas, the victim services director
considers the safety of the other guests as well as
the safety of the witness when choosing
accommodations. She recommended using hotels for
witnesses who are not gang members, because hotel-
style accommodations offer added security, but
using motel-style accommodations -- those which
have doors that open directly to the outside -- for
gang-member witnesses, who are more likely to
engage in illegal activity from the room or attract
a violent attack which would endanger other guests.

o A number of hotel and motels should be used to
avoid the easy identification of one site as a
"witness motel." Some prosecutors reported never
using the same motel twice; others used the
opposite approach, placing endangered witnesses
among regular out-of-town witnesses whose
transportation had been arranged by the district
attorney's travel agent. 

------------------------------

Who Pays the Rent? 

A few witness security efforts operate according to
strict well-documented guidelines and are
adequately funded entirely or in part by State
appropriations, the prosecutor's budget or the
police department budget (see appendix A2 for
sample program guidelines). One program's financial
officer reported that his State's witness security
fund was never fully expended. But the majority of
witness security efforts are not centrally
administered or financed. Most are the product of
necessity, cobbled together with makeshift funding,
one-time grants, borrowed administrators, and
personal favors. Across the country, prosecutors
and police investigators told of small "pots of
money" or "special funds," reserved for loosely
defined purposes, from which they were able to draw
limited amounts to protect witnesses in key cases. 

Resourceful prosecutors and police officers found
funding not only in their own offices but also in
places like a "Friends of Victim/Witness Fund"
maintained by a victim services agency or in State
agencies with the authority to make small grants.
Others managed to protect witnesses by sharing
costs with other interested agencies on an ad hoc
basis. A handwritten addendum to a funding request
to one prosecutor promised that the police
department had agreed to fund half of the $600 cost
of relocating a witness to a new apartment (first
and last month's rent). Prosecutors and police
officers told of jointly funding bus or plane
tickets. 

Prosecutors and police investigators have used
their own credit cards or cash to pay for food,
lodging, or transportation for witnesses. Most were
reimbursed, but one police officer who purchased a
bus ticket with his own money simply charged an
equivalent amount of overtime and marked it "bus
ticket." Many witness protection efforts depend on
funding of as little as a few thousand dollars a
year -- as much as a number of larger jurisdictions
spend on an average hotel stay for only a single
witness. Respondents in some jurisdictions were
reluctant to discuss the precise source or size of
their funding. One simply did not know: the
prosecutor had been told by the mayor that the
funding was "there" for witness security without
any indication of the limits or duration of the
funding or its source. 

------------------------------

The Federal Witness Security Program 

The Federal Witness Security Program is a long-term
relocation program created by congressional statute
in 1970 and revised by the Witness Security Reform
Act of 1984, which broadened the scope of cases for
which the program may be used to include the
following: 

(1) Federal organized crime and racketeering
offenses, 

(2) Federal drug trafficking offenses, 

(3) other serious Federal felonies for which a
witness may provide testimony that may subject the
person to retaliation by violence or threats of
violence, 

(4) any State offense that is similar in nature to
these above, and 

(5) certain civil and administrative proceedings in
which testimony given by a witness may place the
safety of that witness in jeopardy. 

Whenever a State witness is accepted into the
program, it is with the stipulation that the State
will reimburse the U.S. Government for expenses
incurred. States are expected to reimburse expenses
for both relocated and incarcerated witnesses
placed in the Federal program. 

Within the U.S. Department of Justice, the Criminal
Division's Office of Enforcement Operations (OEO)
oversees the Federal Witness Security Program. The
OEO makes the final decision as to whether program
services will be authorized or denied for each
individual witness. The U.S. attorney in whose
jurisdiction the witness's testimony will be used
must request the services. Strict criteria
determine who can and will be admitted into the
program, including the following: 

o The conviction of the defendant against whom
charges are brought must be of such significance
that it will further the administration of criminal
justice and help meet the overall goals of the
Attorney General. 

o There must be a clear indication that the
witness's life is, or will be, in jeopardy as a
result of his or her testimony, such that there are
no alternatives to using the program. 

o The witness must be able to provide significant
and unique testimony. 

o The need for the testimony of the witness must
outweigh the risk of danger to the public. 

Participation in the program is considered a
lifetime commitment on the part of the U.S.
Government. Witnesses and family members are given
new legal identities, including birth records and
driver's licenses, and they are given assistance
with civilian employment in their new location. The
program provides witnesses and their families with
temporary lodging and expenses, and free medical
and psychological care, until a permanent residence
in another jurisdiction has been arranged. No
witness who has followed the security rules has
been killed. 

------------------------------

Letter From the HUD Assistant Secretary Explaining 
the Preference Rule for Relocating Intimidated
Witnesses, September 1, 1994 

Dear Housing Authority Chairperson: 

This past February, Secretary Cisneros, Attorney
General Reno, [Treasury] Secretary Bentsen, and
ONDCP Director Lee Brown launched Operation Safe
Home, coordinating the anti-drug, anti-crime
efforts of those agencies in public housing. One of
HUD's contributions has been a regulatory change to
encourage public housing residents to participate
as witnesses in criminal prosecutions. Recent
experience has shown public housing residents to be
reluctant to serve as witnesses because of fear of
reprisals and the inability to relocate away from
threats. 

In response, HUD has eased the ability of housing
authorities (HAs) to move residents who are willing
to serve as a witness. In the recently released
Final Rule for "Preferences for Admission to
Assisted Housing" (24 CFR 880.615) HUD has made
"Displacement to avoid reprisals" a federal
preference for involuntary displacement, allowing
HAs to quickly accept and/or move residents who
have: 

a) provided information on criminal activities to a
law enforcement agency: 

b) based on a threat assessment, been determined by
a law enforcement agency to be at risk of violence
as a reprisal for providing such information. 

All HAs, and especially those developing or
administering comprehensive anti-crime programs,
should incorporate this new preference in their
preferences for admission and relocation. 

Relocation of public housing residents willing to
serve as a witness or informant requires more than
revision of preferences, however. HAs should also
begin coordination with law enforcement agencies to
develop policies and procedures for residents to
approach HA management or law enforcement, for
conducting "threat assessments," and for
maintaining confidentiality of all information
regarding residents and their addresses. 

Questions regarding the new preference, recommended
policies and procedures, and guidance on Operation
Safe Home should be directed to the Public Housing
Division Director at your local HUD Field Office. 

Sincerely, 
Joseph Shuldiner [Assistant Secretary Public and
Indian Housing] 

------------------------------

Some "Witnesses" May Try To Abuse the System 

Some prosecutors initially had concerns about
witnesses coming forward with false claims of
intimidation in order to accelerate a housing 
transfer request. While prosecutors and witness
services workers do hear from people who are trying
to manipulate the system, no one considers this
problem to be insurmountable. Most prosecutors
quickly discern which witnesses have genuine
information, and they are able to weed out those
witnesses who are not valuable to the case. In
addition, few witnesses who are not in fact
intimidated are willing to undergo the
inconveniences imposed by witness security
procedures (including losing contact, if only
temporarily, with family and friends) and are thus
likely to withdraw their relocation request
voluntarily before a housing transfer can be
effected. 

------------------------------

Alameda County Housing Authority Proposal To Give 
Intimidated Witnesses Preferential Treatment 

The discussion in the text addresses providing
relocation preferences to intimidated witnesses who
are already in public housing or have Section 8
certificates, or who are already on the waiting
list at a public housing authority to be placed in
public housing or to obtain a Section 8
certificate. However, Ted Schwartz, Program
Integrity Administrator for the Housing Authority
of Alameda County in Hayward, California, has
written a proposal, in collaboration with John
Dupuy, a special agent with the Office of the
Inspector General in the regional HUD office, to
establish a Victims of Violence (VOV) Program which
will enable intimidated witnesses who are not
currently on a waiting list or in a HUD program to
bypass -- not jump -- the list. According to the
VOV proposal: 

"The Housing Authority recognizes that, in most
cases (of intimidated witnesses), time is of the
essence... For the purposes of participants not
currently on HUD Section 8 or Public Housing, staff
will review the participant's ability to meet
program requirements. If those requirements are 
met and space is available, staff will place that
person in appropriate housing as soon as
possible... As the above procedure is for non-
program participants and will bypass the Housing
Authority's waiting lists, the number of placements
will be limited to an aggregate total of 25
participants (per year)."

The VOV program will accept only participants
recommended by housing authority staff themselves,
the Alameda County District Attorney Office's
Protection Unit, or the HUD Office of the Inspector
General. Under the new program, after 30 days'
notice the housing authority will have the right to
revoke the housing of any witness who refuses to
testify. The proposal is currently being reviewed
by the HUD regional Public Housing Office in San
Francisco and by HUD's Office of Housing in
Washington, D.C., which must approve any plan by
PHAs to allow individuals who are not already on
their waiting lists to bypass the list. 

-----------------------------

Endnotes 

[1] "Prosecutors Paying Millions To Protect Cowed 
Witnesses," New York Times, May 30, 1995. 

[2] A few jurisdictions were interested in
establishing safe houses to use in place of hotels
and motels in emergency situations -- and to use as
secure debriefing sites for witnesses -- but none
currently had a safe house in operation. 

[3] Preferences for Admission to Assisted Housing,
Final Rule, 24 CFR Parts 880 et al., Federal
Register, vol. 59, no. 136, July 18, 1994, pp.
36622, 36623, 36654. 

------------------------------

CHAPTER 4 PREVENTING INTIMIDATION IN
COURTROOMS AND JAILS 

------------------------------

Key Points 

o Gang members and associates of defendants often
show up in court with the express intention of
discouraging witnesses from testifying. 

o Courtroom intimidation can be very subtle and,
partly as a result, can be missed by judges,
bailiffs, and prosecutors. Even when they observe
intimidation, judges often feel that preserving the
constitutional entitlement to a public trial
prevents them from removing the intimidator from
the court. 

o Nevertheless, there are actions that judges can
legally take -- and have taken -- to prevent
intimidation in the courtroom, including 

-- removing gang members or other intimidating
spectators from the courtroom, 

-- segregating them in the courtroom, and 

-- closing the courtroom. 

o Prosecutors can also take action to prevent
intimidation in the courtroom. 

o Many intimidated witnesses in gang- and drug-
related cases who are incarcerated (either as
codefendant or in connection with other crimes)
require special protection. 

o Providing security for incarcerated witnesses
requires a good working relationship between
investigators or prosecutors and correctional
administrators. 

o Incarcerated witnesses are usually protected
using one or more of the following three
approaches: 

-- separation of the witness from the defendant
within the same correctional facility, 

-- separation of the witness and the defendant by
transferring the witness to a nearby correctional
facility, and 

-- separate transport of incarcerated witnesses and
defendants to testify.

------------------------------

Intimidation in the Courtroom 

Gang associates, family members, or friends of
defendants often show up in court with the express
intention of intimidating the witness -- coercing
the person through fear into "forgetting" or
denying what happened, or refusing to testify at
all. As a result, most professionals contacted for
this report agree that preventing intimidation in
the courthouse is an essential component of any
witness security program. To be sure, the chief
burden for preventing intimidation during hearings
and trials rests with the court; however,
prosecutors and police can also help prevent
courtroom intimidation. 

While intimidation can, of course, result from
actual violence in the courtroom, no violence need
take place for intimidation to occur -- and be
effective. The mere presence of gang members or
friends or family of the defendant is often
sufficient to frighten witnesses, and threatening
insignia on clothing or the use of threatening
gestures can intensify a witness's apprehension.
The discussion below addresses ways of dealing with
these more subtle forms of intimidation, which are
reported to be the most common means of frightening
witnesses in court and the most difficult to
prevent. Courtroom security designed to control
actual violence, while essential, is something most
courts already pay very close attention to and is
therefore given little emphasis in this section
(see the box "Extra Security Measures Are Sometimes
Needed"). 

Why Many Judges Are Reluctant To Act 

When judges fail to respond to courtroom
intimidation, most observers agree it is because
they must balance the constitutional requirement of
a public trial against the need to prevent
interference with the judicial process, and judges
may give priority to avoiding any actions that
might result in a successful appeal. As a result,
unless spectators say or do something that is
patently intimidating -- and sometimes not even
then -- many judges will not remove them from the
courtroom. However, as discussed in chapter 7,
"Legal Issues," case law supports limited courtroom
closure or spectator exclusion to prevent witness
intimidation. 

There are other reasons judges may fail to act to
address intimidation in the courtroom. According to
some prosecutors, judges may be aware of the
intimidation spectators engage in but not see it as
the court's problem unless it interrupts or delays
the proceedings. Judges in Minneapolis and Oakland
pointed out that the small size or particular
arrangement of their courtrooms makes it difficult
both to separate spectators from witnesses by any
significant distance and to keep an eye on spectators,
the witness, and jurors all at the same time. 

Some judges are unfamiliar with gang colors,
insignia, or signals that intimidate witnesses.
According to Charles Grant, former chief of the
homicide unit of the Philadelphia District
Attorney's Office, "Intimidation -- the signals and
mouthed words -- usually isn't obvious or can be
understood only in context. `Do you want some
heat?' said by a gang member to a witness in the
courthouse really means, `I'm going to blow your
brains out if you testify.'" In Washington, D.C., a
silent, hard stare by a group of gang members
seated in court -- a practice called "gritting" on
the witness -- is tantamount to a death threat.
According to Mike Berry, former security specialist
in the Washington, D.C., U.S. Attorney's Office,
"Gritting means, `When you get off the witness
stand [if you testified against us], you're dead.'"

 
In Alameda County, homicide prosecutor Jim Anderson
reports that the defense does, indeed, object
whenever the judge removes a spectator from the
courtroom who is friendly to the defense, but "the
objection is just for show -- a pro forma part of
every appeal counsel files in every capital case."
The appeals court, he adds, treats the objection as
just that -- a pro forma complaint -- and routinely
rules against it. A judge in another jurisdiction,
however, observed that defense counsel never
objects when he removes someone because "if they
did, I might rule against their objections, deny
their requests for delays, and so forth whenever I
had some legitimate leeway in how to respond." 

Actions Judges Can Take 

On their own, or if approached properly by the
prosecutor or police investigator, some judges will
remove gang members or other intimidating
spectators from the courtroom, segregate them in
the courtroom, or, in extreme cases, close the
courtroom. 

Remove intimidators from the courtroom. Prosecutors
and police investigators in almost every jurisdiction
studied for this report said that, although they are the
exception, at least one or two judges in their court
systems do remove gang or family members who try
to intimidate witnesses. According to Victoria Villegas,
Chief of the Major Violators Unit in the Clark County
(Las Vegas) Attorney's Office, "Judges [here in Clark
County] will remove gang members. In my first gang
case, the judge and bailiff were unaware of the
intimidation that was taking place, so I went up
and told them that the jurors were getting nervous
because of the spectators' behavior. And they did
remove the offending gang members from the room."
In another jurisdiction, one judge tells the bailiff to
ask offending gang members for identification and, if
the documents are insufficient, to eject them. Another
judge calls a recess if he observes or is told about a
gang member who is intimidating a witness, has the
bailiff bring the spectator to the bench, conducts
a warrant check, and tells him to leave.  

Whenever gang members are expected in the
courtroom, one judge has the bailiff confront all
would-be spectators as they walk in the courtroom,
requesting identification and asking why they are
present, so that gang members cannot say they are
being singled out; typically, this alone discourages
about half the gang members from remaining. 

Lieutenant Teresa Lesney, Commander of the Las
Vegas Police Department's Gang Investigation
Section, says the best approach she ever saw to
preventing intimidation was when a judge had a
police officer in the court announce loudly to a
gang member who had been directing threatening
gestures at a witness, "You're under arrest for
intimidation," whereupon the police officer
escorted him out of the courtroom. 

Segregate intimidators in the courtroom. Some
judges keep all spectators out of the first and
second rows of the courtroom, leaving these benches
empty or allowing only police officers and the media
to occupy them. This at least puts some distance
between potential intimidators and the witness. 

Close the courtroom. On occasion judges will close
the courtroom to spectators during the examination
of a prosecution witness who is afraid to testify
in front of gang members. 

o An Illinois trial judge closed his courtroom
during the testimony of an eyewitness to a murder
allegedly committed by the defendant. The witness
was afraid to testify because he had received
threatening phone calls, shots had been fired at
his front porch, and his automobile had been
vandalized.[1] 

o A New York State trial judge cleared all the
spectators from the court after the State's sole
identification witness became speechless when 30 or
40 people in the audience leaned forward and
grinned and grimaced when he was sworn.[2] 

The actions of both of these judges were upheld on
appeal. Moreover, legislation in a few States, such
as Arizona, California, and Indiana, expressly permits
judges under certain circumstances to exclude some or
all spectators from the courtroom in order to prevent
witness intimidation. Prosecutors and law enforcement
administrators may work to have similar statutes
introduced in their own legislatures. The section
"Preventing Courtroom Intimidation" in chapter 7,
"Legal Issues," discusses existing statutes and case law
on the exclusion of the public from the courtroom. 

Miscellaneous strategies some judges use. Some
judges make use of other strategies for protecting
witnesses or giving them confidence to testify. 

o Many judges make a special effort, often in
conjunction with the local victim/witness
assistance program, to provide safe waiting areas,
away from any possible intimidator, where witnesses
can remain until called to testify. However, space
in courthouses is often at a premium; A. Franklin
Burgess, Deputy Presiding Judge of the Criminal
Division of the Superior Court of the District of
Columbia, commandeers an empty jury room or even
the jail elevator for witnesses to wait in. 

o Two judges reported that they tell defense counsel
not to inform their clients of the dates when
intimidated witnesses will be testifying. "If five gang
members show up tomorrow when Mr. X comes
to testify," one judge tells counsel, "I'll know
it's because you told your client that Mr. X was
scheduled to testify." While defense attorneys are
free to ignore these warnings, they may lose some
of a judge's goodwill by being defiant. These two
judges also avoid giving defense counsel any more
advance notice than necessary of the date when each
prosecution witness who might experience
intimidation will be testifying. 

o In some jurisdictions, the court administrator
makes additional judicial resources available to
expedite cases involving witness intimidation.
Prompt disposition of cases not only reduces the
opportunity for intimidation before and during
trial but also conserves witness protection
resources, allowing more witnesses to benefit from
short-term relocation or security services. For
example, in New York City, one judge handles all
gang cases involving multiple homicides in an
effort to expedite these cases and limit the number
of jurors vulnerable to intimidation. The Rhode
Island statute establishing that State's witness
protection program contains a subsection
authorizing the State's attorney general to request
that cases involving witness intimidation be
expedited (see chapter 7, "Legal Issues," and
appendix C1). 

o When a spectator smirks, laughs, or tosses a hand
indicating a witness's testimony is nonsense, some
judges immediately announce they will not tolerate
such behavior, and it usually stops. A study by the
Victim Services Agency in New York City suggested
that admonishments by judges might be associated
with reductions in the recurrence of intimidation.[3]
As one judge says, "You have to watch and listen at
all times." 

Whatever judges do, one judge warns, they need to
put their actions on record in case there is an appeal. 

The Role of Bailiffs 

Several observers point out that bailiffs (who may
be retired police officers or deputy sheriffs on
active duty) can be the weak link in preventing
intimidation in the courtroom. If bailiffs are not
careful to face and watch the spectators at all
times, they may fail to spot intimidating gestures,
yet they often have to turn their backs to the
spectators to let the jury into the room, keep a
close eye on witnesses being transported from jail
or prison to testify, or pay attention to a request
from the judge. In addition, as with judges,
bailiffs may not be familiar with what the gang
members' gestures mean. Finally, not all courts
have bailiffs, although judges can usually request
one in potentially dangerous cases. 

The importance of the bailiff was underscored by
one judge who is able to interview and handpick
bailiffs for his court because he is on good terms
with the sheriff. He reports that he chooses only
bailiffs who are careful, firm without being
provocative, and, above all, smart. He also looks
for individuals who appear to be fit and capable of
moving quickly to respond to dangerous situations.
He tells each new bailiff, "I know your job is to
protect me and the jury, but I also want you to
protect witnesses against intimidation." 

Colonel Gerry Powers, Assistant Sheriff of the
Prince Georges County Sheriff's Office, who
provides a five-day training course for law
enforcement agencies on witness security (see the
box "Special Security for Moving Witnesses" in
chapter 3), argues that since "bailiffs often end
up out of position with their back to the
spectators or have their attention diverted doing
something for the judge," they are unable to
monitor intimidating behavior or prevent violence
from occurring. He recommends that whenever
security is a concern, a deputy sheriff should also
be present to provide it. 

Motivating Judges To Act 

Prosecutors and police investigators report they
have found several ways of motivating at least some
judges to become more aggressive about protecting
witnesses from intimidation in the courtroom. 

Ask the judge's permission. Often the judge does
not need to take any action other than approving
the efforts of prosecutors, police officers, or
victim advocates for countering intimidation. For
example, a prosecutor, police investigator, or
victim advocate may only need to ask the judge for
permission to allow an advocate to accompany and
sit next to the witness in the courtroom (except
when the person is testifying), to authorize the
sheriff's department to use metal detectors or pat-
down searches for anyone entering the courthouse or
courtroom, or to authorize police officers or
sheriff's deputies to arrest anyone in the
courtroom with an outstanding warrant against them.

Bring courtroom intimidation to the judge's
attention. When a prosecutor or police investigator
observes intimidation in the courtroom that the
bailiff and judge have not noticed or have
misinterpreted as innocuous, he or she can bring
the matter to the court's attention and ask that
action be taken. If spectators are trying to
intimidate the witness but are, in the process,
also frightening jurors, emphasizing the impact of
their behavior on the jury may be more effective
than singling out its effect on the witness. Judges
know that a frightened jury cannot render an
impartial verdict -- and allowing this fear to go
unchecked suggests they are not in control of their
own courtrooms. 

Make clear that the court is empowered to remove
intimidators. Prosecutors can make judges aware of
pertinent statutory authority and case law to make
clear that the court can remove intimidators from
the courtroom, or close the court entirely, without
violating the guarantee of a public trial in State
criminal courts embodied in the Sixth and
Fourteenth Amendments. (See below and chapter 7,
"Legal Issues," for a discussion of pertinent case
law.) 

Arrange for seminars and workshops. Prosecutors and
sympathetic judges can arrange for seminars and
workshops for court personnel on protecting
intimidated witnesses. Victoria Villegas arranged
for two experienced judges and two police officers
from Los Angeles to help her lead an all-day
seminar on courtroom security, gang signs, and
measures for protecting witnesses. Several judges
attended the voluntary session along with a number
of bailiffs. 

All of these steps, of course, require tact: judges
may resist efforts to provide information or
training as an attempt to undermine their
impartiality or as a potential infringement on
their autonomy. 

Court-Related Actions Prosecutors and Police Can
Take on Their Own 

Prosecutors and investigators report that they can
sometimes reduce courthouse intimidation without
involving the court itself. 

Discourage gang members from entering the
courthouse or courtroom. Some professionals believe
that the best intimidation prevention strategy is
to keep those individuals who seem likely to
threaten the witness from ever entering the
courtroom. 

o Prosecutors and police can arrest gang members
with outstanding warrants who come to court. In one
case, a prosecutor found outstanding arrest
warrants on several gang members who had been
attending the trial and had some of them arrested
in the courthouse; the next day the others stopped
coming to court. Another prosecutor arranges for
gang-savvy street officers to come to court and
take into custody any gang members who have
outstanding warrants against them, even if their
only offense is a traffic violation. When possible,
Alfred Giannini in San Francisco also takes out new
warrants on other gang members and has them
arrested at the courthouse. "That way," he says,
"you arrest people you wanted to catch anyway, and
you give the impression that law enforcement
controls the courts." 

o Los Angeles has found that it can be effective to
videotape gang members coming into the courtroom
because individuals who are on probation want to
avoid documentary evidence of their association
with other known gang members -- typically a
violation of probation conditions that could land
them in jail. 

o In several jurisdictions, sheriff's deputies use
metal detectors or pat-down searches at the
entrances to the courthouse or the courtroom. Often
gang members will walk away rather than face these
procedures. 

o In the company of a law enforcement officer, one
Texas prosecutor asks intimidating gang members in
the courtroom or courthouse their names and, on
occasion, photographs them. The prosecutor then has
subpoenas drawn up to call the intimidators as
witnesses. In the prosecutor's view, if the gang
members are there to intimidate a witness, they
must know something important about the case.
Turning intimidators into witnesses makes it
possible to exclude them from the courtroom during
the testimony of other witnesses -- including that
of anyone targeted -- without asking for the
judge's approval. 

Escort and accompany witnesses. This report has
already pointed out that victim/witness program
advocates are sometimes available to accompany
frightened witnesses to court and even to sit next
to them during the proceedings (see chapter 2,
"Traditional Approaches to Witness Security").
Prosecutors and police investigators can also
arrange for sworn officers, either in or out of
uniform, to escort and stay with witnesses in the
courtroom. (Of course, care must be taken to avoid
having police officers who are going to testify in
a case be present in the courtroom except when they
are giving testimony.) Even if this show of force
does not discourage gang members from trying to
intimidate a witness, it may give him or her a
feeling of security that makes it possible for the
person to testify as planned. Officers can maintain
eye contact with the witness as a form of
reassurance, surround the witness when he or she
enters or leaves the courthouse, mingle in the
corridors with gang members, or sit right next to
known gang members in the audience. In San
Francisco, one officer helped a witness's neighbors
form a community support group, who attended the
trial so that the witness would see friendly as
well as intimidating faces in court.  

Be creative. Once when Victoria Villegas had her
police gang expert on the stand in Clark County,
Las Vegas, he brought photos of members of the gang
that was alleged to be involved in the case. When
the expert realized that a gang member happened to
be seated in the front row of the audience, he
answered a question from Villegas about how the
gang could be identified by saying, "Well, they
wear red bandannas, have a tiger insignia on their
right sleeve, and have crew cuts -- you know, just
like that guy in the front row." According to
Villegas, the jury was able to figure out that the
spectator being referred to was the leader of the
gang trying to intimidate the witness. No gang
members showed up in court the next day. 

Prosecutor Jim Anderson in Oakland tells witnesses
who report that they can no longer recall what they
saw or heard that they are free to take the stand
and say, "I don't remember." That way the witness
will not be held in contempt, Anderson can
introduce the person's previous sworn statement
from the preliminary hearing into evidence (see
chapter 7, "Legal Issues"), and the jury can decide
whether the discrepancy is based on fear of
retaliation -- all of which benefits the prosecution.
In one of Anderson's cases, a man had hired two
men to kill his former wife, but the witness, who
had identified the killers at the preliminary hearing,
had since been arrested himself and, afraid of
retaliation if he testified at the trial, told Anderson
he could no longer remember what he saw.
Anderson told him he could answer questions at
trial by saying, "I don't remember." Then Anderson
had the police officers who audiotaped the witness's
previous testimony take the stand and play the tape
for the jury (evidence the defense had already obtained
through discovery). The jurors decided that fear was
preventing the witness from repeating his earlier
testimony. Both defendants were found guilty and
sentenced to death. 

Intimidation in Jails and Prisons 

A significant number of intimidated witnesses will
be behind bars either as codefendants in the same
case or for an unrelated crime. "Witnesses in
custody are a real problem," according to Alfred
Giannini of the San Francisco District Attorney
Office. "They demand attention now and will in the
future . . . A witness is in more danger of running
into a friend or relative of the defendant in a
California jail or prison than he is walking the
entire city of San Francisco except for the
defendant's own neighborhood." To secure the
cooperation of incarcerated witnesses, some
assurances must usually be given that they will be
protected from retaliation. In addition,
nonincarcerated witnesses may be afraid that jailed
relatives will be harmed by other inmates who are
gang or family members of the defendant. 

Typical protective custody arrangements are
described below. 

o Separation of the witness from the defendant
within the same correctional facility by placing
the defendant and the witness in different areas of
the facility's general population or by placing the
defendant in a special protective custody unit. In
some correctional systems, such as New York City's,
witnesses may prefer to remain in the general
population due to a prison culture that encourages
attacks on any incarcerated informant who is in
protective custody. For this reason, prosecutors
work quietly with prison officials to separate
witnesses and defendants without formal separation
orders (that are easily discovered evidence of a
prisoner's cooperation with the prosecutor) and
without the use of protective custody. Prosecutors
also work with prison officials to avoid high
concentrations of gang members in particular
facilities.  

o Separation of the witness and the defendant by
transferring the witness to another correctional
facility, sometimes on a reciprocal basis. A few
jurisdictions occasionally use Federal prisons on a
cost-reimbursement basis to hide particularly
endangered witnesses. Prosecutors in Washington,
D.C., reported that incarcerated witnesses prefer to
be transferred to suburban jails, where families and
friends can still visit, or to a distant facility near
out-of-town family members. Working to arrange
such a transfer is one way the prosecutor can show
goodwill toward an incarcerated witness who is
willing to cooperate. If local gangs have affiliates in
local jails or throughout the State prison system, it
may be necessary to relocate a witness to an 
out-of-State facility. 

o Separate transport of witnesses and defendants to
testify. If arrangements have not been made to
ensure the separate transport of incarcerated
witnesses and defendants who are housed at the same
correctional facility, witnesses may refuse to testify
once they arrive in court -- the ride to and from the
courthouse provides ample opportunity for a
defendant to intimidate a witness. 

Security for incarcerated witnesses hinges on good
cooperative relationships among police investigators,
prosecutors, and corrections officials, preferably as
defined in a memorandum of understanding between
the prosecutor's office or police department and the
department of corrections. More commonly, however,
cooperation is based on personal contacts and ad hoc
arrangements: a deputy county attorney or police
investigator calls a corrections administrator on a
case-by-case basis for help in protecting key witnesses.
Victoria Villegas calls the 12-story jail in Las Vegas to
request that the administrator not house a witness on
the same floor with a known family member or gang
associate of the defendant and not transport them to
court together. Alfred Giannini in San Francisco calls
the jail watch commander in the sheriff's department
and asks to have a witness who needs protection
placed on the seventh floor with Federal detainees or
in maximum security. When Giannini requests a
transfer for an inmate to another jail or to San Quentin
Prison, he must get a court removal order so that one
warden will release the inmate and the other will accept
him. Giannini has the declarations on his computer ready
for him to fill in the blanks, and no judge has ever
refused to sign an order. Nevertheless, he follows up
with the watch commander to make sure the transfer
happens. Giannini also arranges with the watch
commander for district attorney investigators or police
inspectors, instead of sheriff's deputies, to transport
jailed witnesses to court to ensure their safety. In Iowa, since some inmates from Polk County's
overcrowded jail
in Des Moines are routinely housed in other county jails,
prosecutor Daniel Voogt goes to the sheriff when an
inmate witness needs to be protected and says, "You
might as well do me a favor and select my witness as
one of the inmates you transfer." 

Police inspectors, too, sometimes make their own
jail arrangements. When Lieutenant Earl Sanders in
San Francisco needed to protect an inmate who had
provided information about a defendant who was
trying to kill a witness, the inspector went upstairs to
the corrections department and talked to the captain
in charge of the jail about having the inmate placed in
another county jail; she arranged an inmate exchange
with her counterpart in the San Mateo County jail, a
few miles away. Sanders coordinates the movements
of informants and witnesses who are incarcerated in
the State prison system with fellow investigators he
knows in the California Adult Authority's Corrections
Investigations Division (CID), which deals with gangs.
Sometimes Sanders calls to have an inmate transferred
to the "safe yard" where everyone is a government
witness or informant, but when one incarcerated gang
member offered to finger 10 other shooters in a gang
slaying if Sanders could protect him, the inspector
arranged to have the inmate serve his time in the Nevada
State Prison. Sanders has also been able to arrange to
send inmates to Federal prisons for nonviolent offenders.  
Conclusion 

Although preventing intimidation in the courtroom
and in jails and prisons may appear to be beyond
the control of prosecutors and police investigators,
as this chapter makes clear, there are a variety of
ways in which they can work with courts and
correctional systems to significantly enhance the
security of witnesses who will testify if they feel
they can be protected against retaliation. Ultimately,
however, correctional administrators and judges
need to be made aware that it is their responsibility
to prevent intimidation -- jail and prison
administrators because they have a legal duty to
protect inmates, and judges because they are
constitutionally mandated to ensure a fair trial.
Prosecutors and investigators can help further this
educational process. 

------------------------------

Can the Prosecution Benefit From Witness
Intimidation? 

Some observers feel that intimidation in the
courtroom actually benefits the prosecution because
jurors usually deduce what is going on and become
less sympathetic toward the defendant. Homicide
prosecutor Jim Anderson tells about a case in 
Oakland in which several gang members came to court
during his closing argument and sat right behind
the defendant; after the trial, some jurors
reported that they felt intimidated, and Anderson
concluded that the gang members' presence "sure
didn't hurt my case and probably solidified it
because it increased the credibility of my claim
that the defendant was a gang member." San
Francisco prosecutor Alfred Giannini had a very
weak case against a gang member who had machine-
gunned a crowd of people, killing 2 and injuring
14. Because there were gang members in the back of
the courtroom, a key witness balked in front of the
jury, saying he could not remember anything, but
the jury convicted. Later, jury members told the
press, "We could figure out what was going on -- he
was scared to testify." Victoria Villegas, a Clark
County (Las Vegas) homicide prosecutor, reports
that in one case she tried, the defendant's
attorney also wanted the gang members removed
because, by making the jurors nervous, they were
hurting the defendant's case. 

By contrast, Judge Stanley Golde in Oakland feels
that gang intimidation in the courtroom works
against the prosecutor because jurors will feel
that "if the judge cannot prevent intimidation in
his or her own courtroom, and if the witness is
scared, I sure ought to be scared, too." But if the
judge stops the intimidation, Golde believes, that
helps the prosecutor because jurors not only then
feel secure, they also conclude that anyone who has
such menacing associates must be guilty.  

------------------------------

Manage the Witness 

"You need to take time to talk to and even coddle
reluctant witnesses; they're touchy and hostile,"
one judge advises. If needed, this judge holds a
hearing with witnesses before they are called to
the stand. If the witnesses are coming from jail or
prison, he tells them that he will not let the jury
see the handcuffs, and he tells the bailiff to
remove the cuffs when the witness is about to
testify. When a witness recants in obvious reaction
to the presence of gang members in the courtroom,
he calls a recess and talks to the witness in
chambers, explaining the law of contempt and making
clear that the witness's previous testimony will
come into the record anyway. He may also tell the
witness, "We'll protect you." The same judge
sometimes takes the opposite tack, becoming very
hardnosed with a recalcitrant witness. On one
occasion, he leaned over and whispered to a witness
brought in to testify from the State prison, out of
the jury's earshot, "Smarten up . . . You need to
testify."  

------------------------------

Extra Security Measures Are Sometimes Needed 

Sometimes judges request, or police investigators
offer, extra security measures when it appears that
real violence might occur in the courthouse or
courtroom. In a rape case in a jurisdiction in
which gang members had threatened the lives of two
witnesses, the judge had police authorities provide
several armed officers in the courtroom, set up
metal detectors at the entrance, place a video
camera in the courtroom, and install an alarm
system whereby he or his bailiff could summon a
SWAT team concealed in a room across the corridor.
The prosecutor wore a bulletproof vest. In other
high-profile cases, special measures are needed for
transferring witnesses to and from the court,
including the use of decoy vehicles, back or
basement entrances, and service elevators. See the
description of Prince Georges County (Maryland)
Sheriff's Office five-day course for forming a
special witness protection team in the box "Special
Security for Moving Witnesses," in chapter 3.  

------------------------------

Making Arrests in the Courthouse Requires Care 

Police and prosecutors need to be careful about the
timing of courthouse arrests. One judge was
infuriated when the sheriff's department executed
warrants during an afternoon recess in a case,
creating a commotion in the corridor, complete with
cursing and shoving between deputies and the gang
members they were trying to arrest. Because the
jury had not yet been dismissed and was within
earshot, he had to conduct a hearing with each
juror to make sure that what he or she had heard
would not affect his or her ability to judge the
case fairly.  

------------------------------

The Witness's Own Associates or Family Members Can 
Be a Problem 

Prosecutor Alfred Giannini in San Francisco
sometimes tells the victim's family and friends not
to show up in court. "If you come in with your gang
insignia yelling [profanities]," he tells them,
"you and I will both lose the case because the jury
won't like you and then they won't like your son.
They'll decide your son started the problem, just
as the defendant's lawyer is claiming." Or, after
telling a mother or father that some family members
can come, he might add, "But I don't want to hear a
word from them, and I don't want 20 of your dead
son's friends talking garbage outside the courtroom
within earshot of the jury."  

------------------------------

Taking Innovative Action Against Inmate
Intimidation 

Prosecutors in some jurisdictions have taken
aggressive action against inmates intent on
intimidating a witness.  

o A prosecutor in one city developed an agreement
with the regional telephone company to trace inmate
telephone calls upon request so that charges could
be brought against inmates for harassment by
telephone. The prosecutor has on several occasions
threatened inmates with having their phones removed
and, working with the jail, arranged for phones to
be removed on two occasions. 

o In Washington, D.C., prosecutors have cooperated
with corrections officials to execute search
warrants in the jail to discover correspondence or
other documentation of witness intimidation
conspiracies. The U.S. attorneys were able to use
the jailhouse correspondence of one gang member
accused of murder to help convict him and an
associate of intimidation and homicide charges.[4] 

o Prosecutors in Los Angeles also make use of
jailhouse searches when witness intimidation is
suspected. In one case, the defendant had written
witness information on his cell wall -- in Arabic.
The writing was photographed, translated, and used
to prove intimidation.  
----------------------------

Endnotes 

[1] People v. Rufus (1982, 1st Dist) 104 Ill App 3d,
60 Ill Dec 190, 432 NE2d 1089. 

[2] United States ex rel. Bruno v. Herold (1969, CA2
NY) 408 F2d 125, cert den 397 US 957, 25 L Ed 2d
141, 90 S Ct 947. 

[3] Connick, E., and R.C. Davis, "Examining the
Problem of Witness Intimidation," Judicature 66
(1983): 439-447. 

[4] "Letters From Gang Members Leave a Trail of 
Violence," Washington Post, May 24, 1995.  

------------------------------

CHAPTER 5 REDUCING COMMUNITY-WIDE
INTIMIDATION 

------------------------------

Key Points 

o Community-wide intimidation poses as serious a
threat to the ability of police officers and prosecutors
to obtain witness testimony as does an explicit threat
against a witness in a specific case. 

o Community-wide intimidation can be reduced in
part through community outreach, including 

-- community-based policing and prosecution
strategies, 

-- vertical prosecution of cases involving gangs
or drug crimes, 

-- matching language skills and cultural knowledge
of police officers, prosecutors, and outreach
personnel to the communities they serve,  

-- community education and empowerment (including
legal assistance in using civil remedies to combat
gang and drug crime), and 

-- public relations (including publicizing witness
security program options). 

o Following a high-profile gang or drug crime,
intensive policing and prosecution tactics may help
to reduce community- wide intimidation.  

------------------------------

Community-wide intimidation is the fear, shared by
a whole neighborhood, that the criminal justice
system cannot protect residents from the gangs and
drug dealers who dominate their community. This
implicit but highly insidious form of intimidation
frustrates prosecutors and police investigators
because, while there is no specific threat or
intimidator they can investigate, a community
member who witnesses a crime may nevertheless be
extremely fearful about testifying -- and
justifiably so. In fact, the most dramatic examples
of community-wide intimidation concern not
reluctant witnesses who need to be convinced to
testify but the absence of any cooperative
witnesses in crimes where both the victims and the
perpetrators are well known to the community: 

o In the Pittsburgh case cited in chapter 1, no
witnesses were willing to testify after a drug-
related shooting at a softball game left three
players dead in full view of dozens of spectators. 

o In San Francisco, although there were more than
50 witnesses to a homicide that took place at a
public concert, including a woman identified as
having stood next to the known shooter, no one was
willing to identify the murderer in court. 

Does Community-wide Intimidation Require Attention?

In some jurisdictions, prosecutors and police
investigators consider claims of nonspecific fear
arising from community-wide intimidation a
legitimate justification for witness relocation and
security. In Washington, D.C., the U.S. Attorney's
Office has proposed a new pilot program -- separate
from its participation in the Short-Term Witness
Security Pilot Project (see chapter 3, "Relocating
Intimidated Witnesses") -- called the Citizens
Assistance Program, to provide limited funding to
relocate citizens who have witnessed crimes and are
afraid of retaliation by neighbors -- not just by
the defendant -- if they testify. In contrast, in
some smaller jurisdictions prosecutors and
investigators do not feel that witnesses who have
nonspecific fears need relocation or other
protection, in most cases because the incidence of
actual violence against witnesses is extremely low.
However, Alfred Giannini, an assistant district
attorney in the San Francisco District Attorney's
Office, reports, "I focus on what will be necessary
to help the witness to testify. It doesn't matter
if there's a real threat or just a perception,
because in either case I'll lose the witness."  

While official attitudes toward community-wide
intimidation may differ from one jurisdiction to
another, every community in which witness
intimidation is an issue will benefit from
community outreach. Respondents reported that, by
building confidence in the justice system's ability
to understand and prevent crime in their community,
community outreach demonstrates to residents that
witnesses are a valued civic resource, helps to
defuse exaggerated apprehensions about gang power,
and encourages civic participation by law-abiding
community residents. Most importantly, outreach is
the only way to reach "invisible" witnesses who are
otherwise never known to investigators or
prosecutors and to prevent the further spread of
community-wide intimidation. Finally, outreach is
an important adjunct to witness security programs,
which must limit the number of witnesses receiving
personalized security services due to limited
resources. Community outreach assures residents of
intimidated neighborhoods that, although funding
may not be available to relocate or counsel all
witnesses (especially those in "quality-of-life"
crimes as opposed to homicides or major gang and
drug cases), police investigators and prosecutors
are aware of the burden of fear and general
intimidation in neighborhoods dominated by gangs
and drugs and are attempting to reduce it. As
discussed below and summarized in the box,
respondents use a number of outreach strategies. 

Community Policing and Prosecution Strategies 

Community policing and prosecution strategies are
critical to developing better working relationships
with witnesses and potential witnesses in gang- and
drug-dominated neighborhoods. 

While exact definitions differ, community policing
is generally considered to have three ingredients:
an orientation to problem solving within the
community; police partnerships with neighbors,
community groups, code enforcement agencies, and
other resources; and the delegation of considerable
decision-making authority within the law
enforcement agency. Community-based prosecution,
used in several jurisdictions interviewed for this
report, involves pairing prosecutors with community
policing units to provide similar problem-solving
and partnership services to a neighborhood. In
particular, certain prosecutors make themselves
visible in the local community and may be assigned
to litigate all the cases within a specific neighborhood.
Community-based prosecutors interviewed for this
report emphasized the need to be seen by the
community at the scene of the crime whenever
possible and to collect as much information about
potential witnesses as possible at that time. 

The advantages of community policing and
prosecution are many: 

o Prosecutors and police are able to build long-
term relationships with tenant and other community
groups, and these contacts may lead to increased
witness cooperation. 

o A combined and consistent police and prosecutor
presence can help to build a greater sense of trust
and accountability between the community and the
criminal justice system. 

o Community-based police investigators and
prosecutors are more likely to see links among
related cases or to detect new crime trends before
they have the opportunity to develop fully. 

o Community-based investigators and prosecutors
typically become attuned to the needs of victims
and witnesses in their jurisdictions and can work
with victim/witness advocacy programs to design
responses tailored to local concerns. 

Community Education and Empowerment 

Another approach to decreasing community-wide
intimidation involves the empowerment of community
groups to fight back against drug and gang crime
and to reclaim their buildings and neighborhoods.
Prosecutors and police officers can help empower
community groups in a number of ways, including 

o providing legal and clerical assistance to
community groups interested in bringing civil suits
under local drug nuisance statutes or gang nuisance
laws (see chapter 7, "Legal Issues," and appendix
B6, "Helping Communities With Nuisance Abatement
Suits"), 

o assisting tenant groups in organizing gate checks
at public housing developments (a practice intended
to discourage entry by outside gang members or
drug-selling organizations), and 

o organizing neighborhood support groups for crime
victims or families of homicide victims (in Baltimore,
a support group which the prosecutor's office
originally brought together at a bereavement center
went on to become an independent, activist
group dedicated to preventing violence). 

Efforts to aid a community need not be formal. A
police inspector in San Francisco reported that he
had helped organize an ad hoc neighborhood support
group for an intimidated witness; as mentioned in a
previous chapter, members of the group attended the
trial each day so that the witness would see
friendly as well as intimidating faces among the
spectators. 

Public Relations 

Almost every respondent emphasized the need for
better public relations concerning witness security
and assistance efforts. In general, prosecutors in
smaller jurisdictions felt that, as bad as witness
intimidation is, the public's perception of the
danger involved in testifying is exaggerated and
that public relations efforts to minimize
irrational community-wide fears would be helpful.
Most prosecutors in larger urban jurisdictions
considered witnesses' fears to be well founded, but
they too saw a need for aggressive public relations
once a workable witness security program was in
place in order to notify the community that the
criminal justice system is prepared to protect
them. 

Prosecutors, police officers, and victim/witness
program directors reported seeking or accepting
speaking engagements with PTAs, teachers' groups,
guidance counselors, community groups, and high-
risk groups, like elderly Asian immigrants, to
increase the community's awareness of the criminal
justice process. Some victim services programs
distribute printed material, sometimes in two or
more languages, describing the prosecutor's
programs and policies, the rights of the victim or
witness, and support groups or other services
available. While some speakers address the issue of
intimidation directly, others feel that discussing
it openly may raise fears rather than allay them,
and so they attempt only to familiarize people with
the law enforcement process and to make friendly
contacts in the community. If they do discuss
witness security issues, they are careful not to
promise a level of protection they are not
absolutely sure they can provide. 

Police investigators and prosecutors from all parts
of the country emphasized the need for special
public relations efforts (combined with community
outreach) to give Asian and other immigrant
communities information about the American criminal
justice system and immigration law. Asian
communities are said to be particularly vulnerable
to threats if they testify, because intimidation is
often an institutionalized element of Asian gang
extortion activities. The ability of Asian gangs to
operate with impunity in many Asian communities
depends on a lack of trust in the criminal justice
system, residents' unfamiliarity with the English
language and American law, and law enforcement's
difficulty in overcoming these cultural and
linguistic barriers. As a result, speakers fluent
in Asian languages and dialects, and good
translations of information pamphlets, are
important adjuncts to outreach efforts in these
communities. For example, police officers in Las
Vegas found it difficult to make contacts in the
Asian community because there was no centralized
vehicle -- no newspaper, radio station, or
community group -- through which to do publicity
and outreach. A gang officer who speaks Thai has
helped forge some bonds with intimidated Asian
witnesses, but the lieutenant in charge of gang
investigations still feels that the department's
outreach is hobbled by the diversity of Asian
cultures and dialects, and by an absence of one-on-
one relationships with community members. 

Philadelphia's prosecutor-based victim services
program hired a Vietnamese staff member to conduct
outreach to the Vietnamese community. The advocate
visits schools to talk about emergency services --
how to call 911, for example, and how to use the
Bell Telephone Language Line (which can detect a
Vietnamese accent) to speak to someone who knows
Vietnamese. He explains to students how to contact
the victim services unit, provides them with a
program brochure that he himself translated into
Vietnamese, and arranges presentations to
interested parents. The advocate also gives
presentations several times a year -- over 50 to
date -- to community-based organizations, often
bringing with him a police sergeant who is a
Vietnam veteran and speaks the language. The
program director reports that as a result of these
efforts more Vietnamese have been reporting crimes.
The advocate provides Vietnamese victims with
standard victim assistance services, such as
explaining court procedures and encouraging them to
testify, and, whereas other victims and witnesses
are passed from advocate to advocate as they move
through different court divisions, he remains with
each Vietnamese victim from beginning to end (a
case management approach similar to that of
vertical prosecution). 

The International Association of Asian Crime
Investigators is sometimes able to assist police
and prosecutors who are seeking advice concerning
Asian gang crime and outreach to Asian communities
(see chapter 8, "Sources of Help"). More generally,
it is important for law enforcement agencies and
prosecutors' offices to have a culturally diverse
workforce, so they will be able to reach all types
of minority citizens in the effort to protect
victims and witnesses. 

Prosecutors and police investigators emphasized
that their most effective public relations activity
is to remove powerful local gang or drug figures
from the streets, even if the defendant's initial
absence from the community is for only a few days.
Respect for law enforcement -- and willingness to
testify -- is further increased if the gang or drug
leaders are successfully prosecuted and jailed. 

o Polk County prosecutor Daniel Voogt had an Asian
gang leader arrested on the Friday of Thanksgiving
Day weekend and asked that no bond be generated,
charging that the defendant had already intimidated
a witness. The judge agreed, and the man spent the
long weekend in jail. A bond reduction hearing on
Monday enabled him to post bail; however, the fact
that the defendant was kept in jail for three days
during a holiday period -- when judges normally do
their best to allow defendants to spend the weekend
with their families -- began the process of
convincing the Asian community that this gang
leader was not as all-powerful as many had assumed.
As a result, more witnesses have come forward from
the community, allowing the police -- for the first
time -- to make arrests in other cases, including
home robberies, that might otherwise have gone
unreported. Police officers attending an Asian
community gathering were told, "Those gangsters
have been a real problem, and we're glad you got
the leader." 

o In order to clear an intimidated neighborhood of
gang activity, Walter Arsenault, chief of the
Manhattan District Attorney's Homicide
Investigation Unit, indicts the largest number of
gang members possible in each gang-related multiple
homicide case. "The most important thing to do," he
says, "is to bring down as many gang members as
possible -- you must take out the whole thing."
According to Arsenault, large cases "tend to reduce
the anger of ordinary citizens because large
numbers of gang members are taken down at once,"
showing that the police are effective and that the
streets can be cleared -- at least temporarily --
of gang activity. Arsenault and other prosecutors
feel this approach can decrease witness
intimidation because it both bolsters the image of
law enforcement in the community and provides a
pool of indicted co-defendants from which
cooperative witnesses may emerge. By using co-
defendants as government witnesses in gang cases,
the prosecutor can avoid the need to ask -- or
depend on -- innocent neighborhood residents to
testify and thus subject them to potential
intimidation.  

Conclusion 

Community-wide witness intimidation is one of the
most frustrating and seemingly intractable problems
for police and prosecutors. However, some
jurisdictions report that community outreach
efforts, especially community-based policing and
prosecution, can improve relations between citizens
and the criminal justice system and thereby
increase witness cooperation. All of these efforts
attempt to break down the community's isolation and
increase the confidence of its residents in the
ability of the criminal justice system to represent
and protect them. 

------------------------------

Community Outreach Strategies 

The following outreach strategies were recommended
by police and prosecutors interviewed for this
report:   

o policing and prosecution strategies, such as 

-- community policing, 

-- assigning prosecutors to specific communities or
police units, 

-- vertical prosecution of cases involving gangs or
victim intimidation -- that is, one prosecutor or
team of prosecutors assumes responsibility for a
case from start to finish, 

-- matching the cultural knowledge and linguistic
skills of law enforcement officers and outreach
personnel to the characteristics of the communities
they serve (especially in Asian communities); 

o community education and empowerment through, for
example, speaking to civic groups and at schools or
providing residents with legal assistance in
bringing civil drug or gang abatement lawsuits;  

o public relations concerning witness security
options and about program successes such as the
fact that no witnesses have been harmed or the
number of gang members convicted as a result of
testimony by intimidated witnesses.  

------------------------------

Police and Prosecution Tactics That May Reassure 
Communities and Witnesses 

Prosecutors and police investigators interviewed
for this report recommend a variety of policing
techniques they have used to increase community
confidence in law enforcement: 

o Use mobile precincts to increase police
visibility in gang- dominated areas where
community-wide witness intimidation is intensifying
following a high- profile crime. 

o Establish storefront precincts in underserved
neighborhoods or areas where police officers have
difficulty making contacts with residents and
business people. Experts consider storefront
precincts to be a valuable tool in establishing
better cooperation in many Asian communities in
particular, by increasing residents' familiarity
with the police and allowing officers to gather the
intelligence necessary to combat Asian gang
crime.[1] 

o Give potential witnesses beeper numbers to
contact police investigators or prosecutors, and
avoid using formal business cards so that potential
witnesses are not compromised if the telephone
numbers or cards are found in their possession --
one police agency gives out cards that read, "Don't
talk to me here, call me." 

o Arrange for the prosecutor to be present when
police officers plan to arrest alleged intimidators
so that the community will see that the district
attorney is involved and able to protect witnesses.

o Interview witnesses discreetly, either in large
groups that include uncooperative witnesses or
secretly at a secure place, such as motel rooms,
boats, and rarely frequented parking lots. 

o Use intensive policing and prosecution tactics to
demonstrate that law enforcement can be effective
following a gang or drug crime that is contributing
to community-wide intimidation. 

Perhaps one of the most valuable ways in which
prosecutors and police investigators can decrease
residents' hesitance to speak with them is to be a
constant presence in the neighborhood and to be
seen speaking frequently with a wide range of
residents -- not just those involved in
investigations. Prosecutors also have a better
chance of developing cooperative relationships with
witnesses if cases are prosecuted vertically, that
is, with one prosecutor or team of prosecutors
handling a case from start to finish.  

------------------------------

The Private Sector Becomes Involved in Community
Outreach 

Founded in 1993, the Wichita/Sedgwick County
Neighborhood Initiative is a public-private effort
to coordinate grassroots community organizations;
public agencies including law enforcement, city
government, and the schools; and interested for-
profit and nonprofit private sector businesses,
labor groups, and civic organizations to reduce
gang-related violence. The Neighborhood Initiative
is a process, not a structured organization. It
supports goals and activities that emerge from
neighborhoods rather than programs that are
introduced by local government. For example, when
there was a drive-by shooting in which a two-year-
old child died, the Initiative responded to
community requests for assistance by trying to
arrange a truce among the rival gangs. 

The Initiative's project director, Pat O'Donnell,
is on loan to the community for three years from
the Boeing Company. O'Donnell's goal is to assist
neighborhoods to obtain needed resources to deal
with gang violence by bringing all parties to the
table regularly, including community police
administrators, the city and county management
representatives, the mayor, a former State
legislator, grassroots anti-gang groups, and gang
members themselves. In the past, O'Donnell writes,
"communities have been accustomed to working with
agencies or departments to get something done. The
Initiative is successful only when collaborative
efforts and nontraditional partnerships are formed
to connect a neighborhood's need or request for
service with existing community resources." 

In addition to the International Brotherhood of
Electrical Workers Local 271, Beeson Carpet
Cleaning, Star Lumber, the Junior League of
Wichita, and several other private sector
organizations, the Initiative involves professional
associations in its activities. The local chapter
of the American Society for Quality Control, a
professional organization whose members work in
manufacturing, has volunteered to help develop
evaluation measures to monitor levels of violence
in neighborhoods and program impact; one society
member devotes 10 to 15 hours per week to program
evaluation. The American Society for Training and
Development, an organization of professional
trainers, has sent members to the community to ask
what kind of training would be helpful. Three
training focuses were developed in response to the
expressed community needs:  

o how to hold a community/tenant meeting, 

o how to approach and communicate effectively with
school administrators, and 

o how to approach city hall. 

Project manager O'Donnell emphasizes that these
groups volunteered what they thought they could do
best. O'Donnell advises, "If a group offers help,
let it define its own involvement. Give it
ownership."  

The Neighborhood Initiative's office is a
storefront space in a local mall, donated by Simon
Property Management. The space is shared by the
Neighborhood Initiative, community police, and
another grassroots community organization. The
shared space has fostered communication between
community police officers and grassroots
organizers, as well as with community residents who
drop in to voice concerns about local issues. 

O'Donnell's goal before he returns to Boeing is to
hand over the leadership of the Neighborhood
Initiative to the grassroots organizations that the
program was founded to support. His advice to
others organizing similar efforts: "Emphasize
inclusivity and don't give up."

------------------------------

Too Many Witnesses? 

Some prosecutors who undertake witness security
with extremely limited resources were concerned
that positive publicity of any sort would result in
a deluge of cooperative witnesses requesting
assistance. Rather than face the task of
determining which witnesses were most valuable and
most in need of assistance, they prefer to keep
information concerning witness protection
resources and successes relatively quiet. Other
police investigators and prosecutors consider the
prospect of "too many witnesses" an attractive
scenario. San Francisco Lieutenant Earl Sanders
supports publicity and is ready to cope with any
overflow of witnesses: "You should let the public
know you will protect them -- I would love to be
inundated with witness offers to testify. I would
just screen the ones I would protect."   

-----------------------------

Endnote 

[1] Hannum, P., "Police Storefronts Should Be
Implemented in the East," International Association
of Asian Crime Investigators (IAACI) News
(January/February 1995): 3.  

------------------------------

PART II 

DEVELOPING OR IMPROVING THE PROGRAM 

CHAPTER 6 

DEVELOPING A COMPREHENSIVE WITNESS
SECURITY PROGRAM

------------------------------

Key Points 

o Comprehensive witness security programs 

-- maximize use of shared resources, 

-- reduce the involvement of prosecutors and law
enforcement investigators with time-consuming
witness management tasks, 

-- lower per-witness security costs, 

-- produce an optimal distribution of existing
funding to eligible witnesses, and 

-- minimize the civil liability of the prosecutor's
office and the police department. 

o A comprehensive witness security model includes 

-- an organizing committee, composed of policy
makers in key stakeholding institutions; 

-- an operational team, including members of the
key institutions involved in the day-to-day work of
the witness security program; 

-- a program administrator, often a victim services
director or civilian with law enforcement
background in the prosecutor's office; 

-- case investigators, district attorney
investigators, or a specially trained law
enforcement investigations unit; and 

-- point people in cooperating agencies, such as
the police or sheriff's department, the public
housing authority, HUD, the courts, the victim
services program, and social services agencies. 

o Formal interagency cooperation is essential to an
effective witness protection program. There are
several keys to successful cooperation: 

-- Gain public and written support from the
administrator of each cooperating agency to make
sure teamwork occurs and endures. 

-- Develop written memorandums of understanding
among all participating agencies. 

-- Identify a point person within each cooperating
agency who can ensure teamwork. 

o Cooperation is especially critical with the
corrections system, local public housing
authorities, and a variety of local and Federal
social services agencies.   

------------------------------

The chapters in part 1 of this report present a
range of traditional and innovative program options
available to law enforcement officers and
prosecutors for providing witness security. This
chapter provides guidance for establishing a
comprehensive and formal witness security program
that can combine several or all of the previously
described approaches. 

While most of the witness security efforts examined
for this report operate without explicit
endorsement at the highest levels and without
written guidelines, needs assessments, evaluations,
or formal cooperative agreements with other
agencies, new programs -- as well as reorganized
ones -- will benefit substantially from a more
formal structure that emphasizes interagency
cooperation and efficient use of resources.
Furthermore, although not every jurisdiction
possesses the resources to establish the full-
fledged formal program recommended in this chapter,
even partial implementation of the suggestions
below should contribute significantly to improved
witness protection at reduced cost. 

Why a Formal Structure Is Preferred 

Prosecutors and police officers interviewed for
this study recommended structured programs for five
reasons: 

(1) To avoid inefficiencies. A program that is
structured can involve all key stakeholders in the
planning process and thereby avoid breakdowns in
cooperation, gaps in services to witnesses, and
inefficient or ineffective procedures.  

o Programs that do not cooperate with the local
public housing authority typically rely on
effective, but very expensive, methods of
relocation, such as short-term (or even long- term)
placement of witnesses in hotels or motels. 

o Police officers and prosecutors frequently spend
considerable time managing witnesses. Under the
auspices of a formal program, most of these
management activities can be conducted by
nonprofessional or civilian personnel, such as
victim services advocates or program case workers. 

(2) To ensure the secrecy of witness security
arrangements. When social services or housing
placement is transferred locally using unsecured
data bases or other computerized records, new
witness addresses may be available to anyone who
has access to the system. A formal system can
provide bureaucratic procedures designed to shield
witness information from easy discovery. In
Baltimore, where the department of social services
cooperates formally with the prosecutor's office to
shield witnesses, one staff member in the
director's office handles all transfers of services
for intimidated witnesses and keeps all witness
files in a secure location separate from the
general files. 

(3) To maintain a constant commitment to program
objectives by all cooperating agencies. Ad hoc
witness protection efforts are vulnerable to
changes in personnel within the cooperating
agencies and within the program. In one
jurisdiction, a victim services advocate,
recognizing the need for special services for
witnesses in gang crimes, had implemented a witness
protection effort with strong backing from the head
of her department. However, because there was no
formal program, when the department head left the
job and the position was not filled, the effort was
suspended. 

(4) To provide a consistent contact person for
intimidated witnesses. A structured program assigns
witnesses a single contact person (other than the
police inspector or prosecutor in the case) who can
provide the type of consistent, around-the-clock
support that is most likely to encourage the
witness to testify. 

(5) To facilitate evaluation. Well-planned
evaluations are critical to monitoring program
efficiency and success. Regular evaluations allow
program administrators to fine-tune program
operations and correct oversights in initial
program planning. In addition, reliable data
concerning the use of funds and program
effectiveness are important in securing, renewing,
or increasing funding. By arranging for access to
records from every involved agency -- and making it
clearly understood what data each agency will
collect -- formal programs facilitate keeping track
of at least such basic information as how many
people have received assistance, whether any
witnesses have been harmed, and whether convictions
were obtained in cases in which witnesses received
assistance. 

The developmental steps described below and
summarized in figure 6-1 are based on discussions
with prosecutors, police investigators, and witness
services directors, and represent an attempt to
draw together the best aspects of current witness
security efforts and to provide approaches for
remedying common program deficiencies. 

1. Getting Started: The Organizing Committee 

Program organization should begin with at least one
meeting among the highest-ranking officials of all
the agencies that will be involved with protecting
witnesses. The district attorney, sheriff, or chief
of police may take the lead in recruiting the
organizing committee, scheduling the meeting(s),
and preparing preliminary materials for the first
meeting. Committee members should include 

o the district attorney (and possibly the heads of
the gang and homicide units), 

o the chief of police, 

o the sheriff (or the head of another law
enforcement agency responsible for security in the
courts), and 

o directors of local corrections facilities, social
services, and the public housing authority. 

Other individuals who might be invited to join the
committee or attend its meetings include HUD's
special agent in charge for the regional office of
the Inspector General (see chapter 8, "Sources of
Help") and representatives from any other agencies
whose cooperation is likely to be important to the
program's success, such as the local FBI office,
the public schools department, the mayor's office,
and the State legislature. 

The organizing committee, or its core members, may
need to meet several times to accomplish the
initial tasks discussed below. 

Conduct an Assessment of the Problem 

Before the organizing committee can begin to design
the program, members need to understand the special
characteristics of the local witness intimidation
problem. In most jurisdictions studied for this
report, prosecutors or police inspectors conducted
a problem assessment informally without consulting
with a wide range of agencies. However, police
investigators, prosecutors, victim services
counselors, corrections personnel, and social
services and housing officials are all likely to
have different -- and valuable -- perspectives on
the problem. As a result, a formal problem
assessment by the organizing committee is likely to
produce more thorough and accurate information than
relying on the perspective of one or two agencies.
Discussion points for the organizing committee's
problem assessment are listed in the box "Assessing
the Problem." 

Identify Appropriate Program Features 

The organizing committee should begin to match the
local needs identified in its initial assessment
with appropriate program responses. For example, a
smaller jurisdiction that needs to relocate
witnesses only once or twice a year might plan to
move them out of the jurisdiction, providing bus or
plane tickets and temporary accommodations, whereas
a large jurisdiction, where 20 or more witnesses
are expected to be moved each year, might favor
procedures focused on relocating them within public
housing whenever possible. In a smaller jurisdiction,
community outreach needs might be met by greater
attention to community-policing tactics alone; in a
larger jurisdiction, a number of public relations
approaches might need to be combined to reach
intimidated residents. Figure 6-2 lists respondents'
suggestions concerning possible matches between
program components (described in part 1 of this
report) and a range of witness security needs. 

The organizing committee's recommendations
concerning program content should be referred to
the operations team (see below) as a guide for
program design. If organizing committee members do
not wish to delegate this task, they should choose
a knowledgeable subcommittee rather than attempt to
select or design precise program responses in a
large committee setting. 

Identify Needed and Available Resources 

Once committee members understand the nature of the
local problem and have tentatively chosen program
components, the group will need to identify
existing and needed staff and funding resources to
implement the program. A crucial question is the
availability of long-term renewable funding.
Talking points concerning resources are listed in
the box "Where Will the Resources Come From?" (See
also chapter 8, "Sources of Help," for a listing of
possible resources, relevant literature, and the
names of individuals knowledgeable about witness
security and gang issues.) 

The committee also needs to find an appropriate
home for the program. The majority of the witness
security efforts contacted for this report are
housed in the prosecutor's office under the direction
of a victim services advocate or other nonprosecutor
with a law enforcement background. There are two
common explanations for this approach: 

o Prosecutors have the greatest stake in
encouraging witness cooperation. While police
departments are also concerned with witness
cooperation in order to investigate crime, their
agencies are not always secure or appropriate
places for a witness security program since people
in the police station or on the streets might
observe a witness in the company or under the
protection of the police and betray his or her
identity or whereabouts to the defendant or to gang
affiliates of the defendant. 

o Many prosecutor offices already house victim
services units which can be used as bases for
extending services to intimidated witnesses. Victim
services locations are natural places for
conducting witness security efforts because of
staff experience assisting victims and existing
contacts with social services agencies and
community groups. In Washington, D.C., the witness
security program is a section of the victim
services unit and is overseen by the chief of the
victim/witness assistance unit. 

Witness security programs might also be run by an
independent victim/witness services agency or
cooperatively with the police department if
adequate protection arrangements can be instituted.

Decide on the Composition of the Operational Team 

The organizing committee should invite the core
agencies that need to manage the day-to-day
operation of the program (see below) to participate
on the operational team. At a minimum, the team
should consist of a senior prosecutor familiar with
gang or homicide cases and an experienced member of
law enforcement with expertise, if possible, in
security operations. The operational team may also
include the director or other senior personnel of
the victim/witness services program if that program
is going to be the principal provider of witness
security services. Representatives of other
agencies should be made members of the operational
team only if they will play a significant and
frequent role in witness security. The team that
approves security applications and determines the
level of security to be provided in Baltimore
includes, at a minimum, the division chief of the
prosecution unit involved, the deputy State's
attorney for administration, and the chief of the
community services/victim witness unit. The teams
also expect assistant State's attorneys in charge
of narcotics, violent crimes, and trial divisions
to be routine participants. 

After completing these initial tasks, the remaining
responsibilities of the organizing committee
involve meeting at least annually to renew the
memorandums of agreement (MOUs), review program
evaluations, consider funding issues, and air
concerns about the design or operation of the
program. After the program has been in operation
for a year, the organizing committee may wish to
consider publicizing the program's services and
evidence of its success. 

2. Program Oversight: The Operational Team 

Initially, the operational team will need to draft
program guidelines and memorandums of understanding
for signature by cooperating agency directors. The
operational team will also be responsible for any
applications or other documents needed to secure
program funding (as proposed by the organizing
committee). 

The operational team has three ongoing
responsibilities: 

o to review all requests for witness security
services, 

o to oversee program operations, and 

o to monitor program expenditures. 

Reviewing Witness Security Requests 

The speed with which applications for witness
protection can be approved is critical to program
effectiveness. In some programs studied for this
report, the administrator in charge of approving
witness security applications or requests is on
call 24 hours a day, while in programs utilizing a
team-style authorization procedure, mechanisms
exist to provide for the emergency security needs
of witnesses based on the approval of one team
member until the entire team can meet to review the
application. With either arrangement, a protocol
will be needed to provide for emergency temporary
authorization of expenditures for witness security
services and a prompt review (ideally within 48
hours) of the application by the operational team.
(See appendix A3 for the Baltimore program
guidelines concerning various approval processes.)
As part of the program guidelines, the operational
team also needs to develop written selection
criteria for participation in the program. In
general, programs studied for this report apply
the selection criteria highlighted in the box
"Which Witnesses Receive Security Services?" 

Overseeing Program Operations 

To monitor program operations effectively, the
operations team must have a wide range of program
information, including 

o information pertaining to cases prosecuted with
the assistance of protected witnesses (see the box
"Evaluation Criteria"); 

o program expenditure information, including an
accounting of all costs borne by other departments
and shared resources used by the program; 

o witness evaluations concerning the effectiveness,
professionalism, and accessibility of the program;
and 

o data regarding the severity of witness
intimidation, its manifestations, and its impact on
communities. 

If an independent evaluator will be used to assess
the program, the operations team should consult
with the evaluator before program operations begin
to identify the data to be collected for the
purpose of evaluation. 

The operational team should also obtain the
opinions of all point people or liaisons among the
cooperating agencies concerning the program's
actual operation (as opposed to how it was designed
to operate), weaknesses of the program in terms of
procedures and personnel, and further assistance
program staff may need to do their jobs better.
These perceptions should be summarized in a report
submitted to the organizing committee for discussion
at the annual meeting (at which the heads of all the
cooperative agencies should be present).

The views of program point people are a very
important part of the evaluation process. Often
program administrators are aware of the faults in a
system but feel powerless to change program policy
or to influence policy or procedures outside their
own agency -- even when the policies of another
agency are hampering their ability to do their
jobs. For example, staff members in the Baltimore
public housing authority were frustrated in their
efforts to speed Section 8 housing transfers for
intimidated witnesses by policies in the department
of social services that disallowed third-party
verification of specific social services
information necessary to process the housing
relocation applications; these policies forced
intimidated witnesses to appear at the department
of social services in person to acquire certain
documents -- a situation that was objectionable to
social services department staff as well, because
they were afraid to be near threatened witnesses.
Had the concerns of the housing authority staff
been brought to the attention of the heads of the
two departments -- both of whom were committed to
assisting the State's attorney to protect intimidated
witnesses -- a more efficient method of handing
social service verifications for intimidated witnesses
might have been possible. 

3.Coordinating Services: The Program Administrator

The program administrator is at the heart of the
witness security program model. Depending on where
the effort is housed, the program administrator may
be the director of a victim/witness services program,
a non-attorney in the prosecutor's office (usually
someone with a law enforcement or investigations
background), or a police officer. Program staff at
several sites felt that choosing a program
administrator with a law enforcement background
would help to bridge the gap between police
departments and prosecutors and help in dealing
with the majority of witnesses, who themselves
have been involved with the criminal justice system
as suspects, defendants, or convicted offenders. 

The program administrator is responsible for

o receiving and processing requests for security,
and

o coordinating services to witnesses from the
cooperating agencies. 

In addition, the program administrator is likely to be
involved with processing program documentation,
controlling the day-to-day disbursement of project
monies for witness security needs, and maintaining
and compiling evaluation data (except for the year-
end interviews with agency point persons -- see
above). 

Initially, the program administrator will need to
write a manual for the assistant prosecutors,
police investigators, and point people in other
agencies, outlining program procedures, providing
sample forms, and listing telephone numbers of the
liaisons. Appendix A provides examples of program
materials several jurisdictions have developed
describing their witness security efforts, and
appendix B contains sample program forms. For
smaller programs, the "manual" might consist of a
few pages of summarized procedures, sample forms,
and contact numbers. 

Witness Security Requests 

The program administrator should receive and
process all requests for witness security services.
In the jurisdictions studied for this report,
requests typically originate with a police
investigator or prosecutor's office investigator.
In some jurisdictions, requests for participation
in the witness security program require the
approval of an assistant district attorney, an
endorsement that cannot usually be obtained until
an arrest has been made. In other jurisdictions,
police investigators either request security directly
from the program administrator in the prosecutor's
office or bypass the prosecutor entirely and use
their own department's witness security resources.
Occasionally, witnesses contact a program
administrator or victim/witness advocate directly. 

Whatever intake procedure is used, it is important
that participating agencies route all requests for
witness security resources through the program
administrator. When it became known in one
jurisdiction that intimidated witnesses were
receiving priority housing transfers, the local
housing authority was inundated with requests for
transfers from other "witnesses." (The housing
authority eventually required that a police report
accompany each request.) If a formal witness
security program had existed, all requests could
have been processed centrally by the program
administrator, not the housing authority, ensuring
that only the most essential and endangered
witnesses received priority. (See appendix B for
sample witness intake forms.) 

Coordination of Witness Services 

The primary job of the program administrator is to
coordinate the delivery of appropriate services to
intimidated witnesses. After the operational team
accepts a witness into the program, the program
administrator designs a service plan for the
witness, using the risk assessment provided by the
police or district attorney investigator (see
below). The service plan should specify which
agencies need to be contacted, what services each
is to provide, and what these services will cost.
The program administrator then needs to contact the
agencies to arrange for the appropriate services. 

In one jurisdiction, the program administrator was
sent to serve internships in various social service
agencies whose cooperation the program would need.
In another jurisdiction, the director of social
services said he wanted someone from the
prosecutor's witness security program to intern
with his agency long enough to become familiar with
the documentary requirements for the various social
services available. Although time-consuming, the
internship approach offers two significant
advantages: not only will the administrator come to
understand the needs and culture of the cooperating
agencies, he or she will also have the opportunity
to establish personal contacts within that agency,
which may be critical to the program's future
success if high-level support for the program
wanes. In a large jurisdiction, the program
administrator may need the assistance of one or
more case workers who can serve as additional
contact persons for intimidated witnesses and share
the responsibility of coordinating the delivery of
witness services. 

4. Case Investigation: Police Unit or District
Attorney Investigators 

Each witness security program will need assistance
from investigators to perform risk assessments,
validate witness claims, and locate potential
witnesses. In many jurisdictions, police investigators
perform these tasks on an as-needed basis. There are
a number of reasons why both police investigators
and prosecutors prefer that witness security
investigations be handled either by an experienced
witness security investigations unit within the police
department or by independent, armed investigators
from the district attorney's office. 
 
o Witness security programs rely on secrecy.
Whether it is the location of the witness or the
names of the witness's family or friends, the fewer
people with access to witness information, the more
secure the program will be. As a result, many police
officers and prosecutors do not consider it safe either
to use an inexperienced investigator, who might
unintentionally betray witness information, or to
involve a series of investigators, which expands the
pool of people who have access to sensitive information. 

o Some prosecutors use their own investigators to
obtain independent witness risk assessments in order
to have another perspective on the witness's claims
in addition to the opinions of the police department. 

o In other jurisdictions, police investigators are
too burdened with other duties to provide full
assistance to the prosecutor, so county attorneys
augment police services with their own
investigators. 

5. Law Enforcement: The Indispensable Partner in 
the Witness Security Effort 

Because law enforcement support is critical to any
witness security effort, the program administrator
needs to consider police investigators as
indispensable partners. The chief executive of the
participating law enforcement agency should
designate a point person (preferably a law
enforcement witness security specialist) to
coordinate the agency's internal witness protection
activities and to coordinate them with the witness
security program administrator and any district
attorney investigators. The police department point
person should oversee 

o the escort and transportation of witnesses in a
secure manner, 

o the swift response of officers to calls for help
from intimidated witnesses, and, 

o in extreme cases, the guarding of witnesses for
short periods. 

Law enforcement officers and investigators support
witness security programs in several other ways.
First, as participants in community-policing
efforts, police officers not only help to deter
community-wide intimidation but also may be the
first people contacted by intimidated witnesses
seeking protection. Police officers can supply
information on neighborhood gangs, gang leaders,
and drug dealers that investigators need for
preparing risk assessments for witnesses, and they
can also reduce gang intimidation by disrupting
gang operations with intensive, interdictive
policing tactics. By establishing field precincts
in empty apartments or storefronts or by bringing
in a mobile precinct, police officers have been
able to counter gang members' claims that the
police cannot respond quickly enough to protect
intimidated witnesses in gang-dominated housing
developments. 

Police investigators and prosecutors strongly
prefer that officers assigned to guard and
transport witnesses be experienced personnel in a
dedicated unit. Officers who guard and transport
witnesses need to be highly professional, well
trained, and discreet. Several prosecutors
recommended that to avoid any appearance of
impropriety, whenever possible female officers
should be used to guard female witnesses. 

Witness security programs can foster cooperation
between prosecutors and police by 

o taking reports of intimidation seriously (for
example, issue arrest warrants against individuals
who engage in intimidation and, if there is
preventive detention legislation, seek revocation
of bail for defendants accused of witness
intimidation), 

o making sure that search warrants are properly
drafted, and 

o designing procedures for the protection of
potential witnesses in cases where an arrest has
not yet been made but police investigators are
confident that a witness has critical information
in a serious case. 

6. Cooperation: Coordinating Services With Other
Agencies 

Witness intimidation requires coordinated and
confidential services from a broad range of
providers. Interagency cooperation among these
providers should begin with the organizing
committee but is the ongoing responsibility of the
program administrator. While the model witness
security effort presented in this chapter relies on
formal cooperative agreements, the degree of
formality of these cooperative arrangements may in
practice vary widely among jurisdictions. 

o Urban jurisdictions may find it helpful to have
written memorandums of understanding to which they
can refer, while smaller jurisdictions may rely
successfully on more informal, personal guarantees
of cooperation among agency heads. 

o The level of involvement for each agency should
be commensurate with the significance and frequency
of the assistance the agency will provide.
Depending on local conditions, some agencies, such
as the jail and the local public housing authority,
should be made an integral part of the program
through a written memorandum of agreement and
public support from top administrators. Other
agencies, such as the school system or the FBI,
whose contribution may be less important or less
frequent, can be involved as part-time "associates"
on the basis of a verbal agreement. 

Prosecutors and police officers identify a number
of important elements in establishing and
maintaining effective interagency cooperation. 

Identify a Point Person Within Each Agency 

It is extremely helpful to have a point person
within each cooperating agency who is in a position
to take or initiate action each time cooperation is
requested. In some agencies, it may be important to
establish several liaisons because a single contact
person may be on vacation or sick leave, may be
transferred to another position or retire, or may
find it a burden to be the only person prosecutors
and police investigators ask for assistance. 

There appear to be three approaches to identifying
contact persons: 

o a systematic approach in which pertinent agency
heads (or their representatives on the planning
committee) formally designate contact persons
within their respective agencies; 

o the designation of a witness security coordinator
who, in turn, identifies contact persons within
each participating agency; or 

o ad hoc relationships established by individual
deputy county attorneys and police investigators
with individuals in other agencies. 

An example of the systematic approach can be found in
Washington, D.C. The program's structure involves the
cooperation of a number of Federal and local agencies.
Within each cooperating agency there is a "head" of the
witness security program; these point people are
formally responsible for coordinating witness services.
As an example of the second approach, one prosecutor's
office hired a single person to act as case manager for all
witness intimidation cases, and, before putting the person
to work, sent him on internships to various city, county,
and Federal agencies to learn what it takes to cut through
bureaucratic red tape and to establish relationships with
liaisons for the future. As a result, this case manager has
developed relationships with at least one person in every
agency from whom he can expect cooperation. 

Most of the jurisdictions studied follow the third, ad hoc,
approach -- prosecutors and police investigators have on
their own initiative established personal relationships
with individuals in other agencies whom they can
telephone for assistance. 

o A police inspector who knew the executive
director of the local housing authority personally
could write him a letter about the need to relocate
a witness and "it was a done deal." 

o An advocate in one prosecutor-based
victim/witness assistance program had a friend who
was the secretary of the local school district; the
secretary would arrange the transfer of juvenile
witnesses, or the children of adult witnesses, to
other school systems when relocation was required. 

o One police inspector reported that she is able to
call on the local housing authority director to move
witnesses between developments because she had
"greased the skids based on the working relationship
I had with some housing cops"; the director puts the
family that is currently at the top of the waiting list
into the apartment that the relocated family vacates.
(See chapter 3 for information concerning relocation
of witnesses within public housing.) 

Gain Support From the Top 

In order to avoid the instability and possible
appearance of impropriety that may result from
relying on a point person system that is based on
favors and personal relationships, it is important
to gain support for the witness security program
from all key agency heads. Micky Cook, Director of
the Hennepin County (Minnesota) Victim Witness
Program, observes, "We work with public housing by
making inroads with individuals there, but they
change, so we really need an agreement from the top
down about how we can cooperate."

Develop Memorandums of Understanding 

One means of promoting ongoing cooperation among
agencies, especially when personnel within agencies may
change, is to prepare a formal written understanding
about each organization's responsibilities. These
agreements can help speed and coordinate emergency
services for victims and witnesses, and place a broader
array of resources at the disposal of prosecutors and
police. In the organizing committee model, these
memorandums would be prepared by the operating
team for signature by the key agency heads. While
some observers feel they retain more flexibility if
agreements are not committed to paper so they may
adapt the arrangements to changing resources and
needs, most observers agree that in the long run a
written document promotes cooperation and provides
support for the individual point people within each
agency (see the box "Reasons for Using
Memorandums of Understanding"). 

The specific agencies with which agreements are
needed will vary from jurisdiction to jurisdiction,
but all agreements should identify 

o the services each agency will provide, 

o the staff and funding each agency will make
available to the effort, and 

o the allowable expenses or services. 

It is also a good idea to reevaluate each agreement
periodically to make sure that all parties are
still comfortable with their commitments in light
of changes in personnel, resources, political
conditions, and the number of witnesses for whom
services are needed. Finally, it is essential that
the terms of any executive-level agreement be
communicated clearly to all those who will be
responsible for program implementation. 

Examples of program coordination with other
agencies are provided in chapter 3 (cooperation
with local public housing authorities and HUD, and
cooperation with social service providers), and in
chapter 4 (cooperation with judges, bailiffs, and
correctional officials). 

Conclusion: Putting the Pieces Together 

This chapter has provided a road map for setting up
a new witness security program or restructuring an
ad hoc effort (see figure 6-3, "Program Implementation
Checklist"). In practice, the specific role and
responsibilities assigned to each management level
may be very different from the ones described here,
depending on a jurisdiction's needs and the talents of
the individuals filling each position. However, with
interagency cooperation and an efficient use of existing
resources, most jurisdictions should be able to provide
at minimal cost an increased level of security for
witnesses in gang- and drug-related cases.

------------------------------

Assessing the Problem 

The following questions can help focus discussion
on the nature of the local witness intimidation
problem. 

o How serious is gang-related witness intimidation
in our jurisdiction? Do we have well-organized and
culturally entrenched gangs, neighborhood-based
gangs, or loosely allied groups that have little
structure and frequent changes in membership? 

o Is witness intimidation linked with a specific
type or types of crimes? For example, is
intimidation common in gang- or drug-related
crimes? 

o Are important cases being lost due to witness
intimidation? 

o Are homicides going unsolved or unprosecuted due
to lack of cooperative witnesses? 

o Are there neighborhoods in the jurisdiction where
noncooperation of witnesses is the norm? 

o Are any other agencies currently providing
services to intimidated witnesses? What advice and
information can they offer? 

o Are inmates or prison gangs engaging in
intimidation from behind bars against witnesses
outside or within correctional facilities? 

o How many times per year do police investigators
and prosecutors anticipate they will need to
relocate intimidated witnesses? How far would the
witnesses need to go -- across town to another
housing development or outside the jurisdiction?
Would relocations need to be permanent? 

o How could intimidated witnesses be reassured
without being relocated? How many witnesses would
be satisfied with this sort of witness management
approach? 

o Would witnesses need to leave their neighborhoods
permanently or only for a period before and during
the trial? 

o What resources are at our disposal to reduce the
problem? 

o What should the first steps in our action plan
be?

------------------------------

Where Will the Resources Come From? 

The organizing committee can use the following
talking points to help guide its discussion of
cooperative funding solutions, the sharing of
resources among agencies, and the identification of
other important resources, such as key personnel
and needed legal or administrative reforms. 

o What sort of financial and bureaucratic resources
will be needed to serve all intimidated witnesses
in important cases? For example, will the program
rely on public housing and HUD resources for
witness relocation, or will it expect to fund some
or all relocations itself? What sort of emergency
relocation will be used? 

o Are sufficient resources available from the
agencies represented on the committee or from other
known State or local funding sources? What sources
could supply long-term renewable funding? 

o Are there key agencies or individuals that are
not represented on the committee that might be
willing to assist with witness security efforts?
Can the committee find a way to involve these
agencies and individuals? 

o Are there personnel in the police department,
prosecutor's office, or victim/witness services
agency who are qualified to administer the program,
or must a leader be hired from the outside? 

o Are there police officers or outreach personnel
who can speak the language and understand the
culture of every significant group of potential
witnesses in the community? Can qualified
individuals be found to act as liaisons to these
communities? 

o Is legislative reform or program funding needed
from State legislators or local officials? Who will
be responsible for seeking any needed legislative
support?

------------------------------

Which Witnesses Receive Security Services? 

Witness security efforts around the country use
very similar criteria in selecting witnesses for
security services. In general, prosecutors
emphasized that due to limited resources, the
primary goal of witness security programs must be
to obtain key witness testimony in major cases, not
to provide security for all witnesses in all cases.
In addition, as discussed in chapter 5, the
limitations on resources available for witness
security make it especially important to devote
attention to community-wide tactics, such as
community-based policing and prosecution, so that
even intimidated witnesses in minor cases receive
some services. 

Common witness selection criteria include the
following:

o The importance of the case. Most protected
witnesses are involved in homicide, multiple
homicide, or large drug cases. 

o The importance of the witness's testimony to
winning the case. Many protected witnesses are
eyewitnesses to homicides or are expected to
provide other essential testimony. 

o A risk assessment suggesting that the threat to
the witness is real or, if the witness is
frightened by non-explicit, community-wide
intimidation, that the gang or drug trafficking
organization involved has a history of violent
behavior. Most programs accept automatically the
assertion that a witness is intimidated in cases
where the defendant or the defendant's associates
are suspected of murdering other witnesses. More
difficult are cases where threats have been made
and seem credible but the defendant or gang
involved has no history of violent behavior. In
such cases, program staff rely on the judgment of
program administrators and the risk assessment
prepared by police investigators or district
attorney investigators. 

o A personal assessment of the witness's
suitability for the program, including whether the
person's testimony is credible and whether the
person is emotionally stable, a substance abuser,
or likely to engage in criminal activity while in
the security program (such as engaging in drug use
or sales, prostitution, or gang crimes). One
program requires a psychological evaluation of
witnesses seeking protection.

------------------------------

Evaluation Criteria 

The district attorney's office in Manhattan reports
semiannually on a wide range of measures concerning
its witness protection program (see appendix D1 for
the complete set of measures), including the
following: 

Program Effectiveness for Prosecutors 

o number of witnesses protected 

o number of cases receiving funding 

o number of dispositions reached 

o number of convictions by plea (to top and lesser
charges) 

o number of dismissals 

o number of convictions by trial (to top and lesser
charges) 

o number of acquittals 

o number of sentences 

o overall conviction rate for witness protection
cases 

o trial conviction rate for witness protection
cases

Program Expenses

o witness living expenses (food and other
necessities) 

o lodging expenses 

o transportation 

o protective custody 

o other costs

A significant percentage of witness expenditures in
Manhattan -- 23 percent -- fell under the catch-all
category "other." To avoid a similar vagueness,
after a program has been operating for a short
period it may be useful to readjust the expenditure
categories being tracked to match typical expenses
incurred.

------------------------------

Cooperation Between Police and Prosecutors To Curb
Intimidation 

Cooperation between the Polk County Attorney's
Drugs and Gang Unit prosecutors and the Des Moines
Police Department's Special Investigations Unit is
very close when it comes to protecting witnesses.
Assistant County Attorney Daniel Voogt has asked
police investigators to call him at any time of the
day or night for any gang-related crime, so he can
go to the scene immediately. Voogt periodically
sends a memo to the chiefs of every law enforcement
agency in Polk County to inform their officers and
dispatchers about his interest in going on scene.
He gives them his home telephone number as well as
his pager number. While not every officer calls
him, the inspectors in the Des Moines Police
Department's Special Investigations Unit almost
always do because they find he is invariably of
assistance; police investigators call the unit of
three drug and gang prosecutors three to five times
a week, sometimes three or four times in a single
day.

Voogt may interrogate witnesses on the scene in
conjunction with police officers, but usually he is
just present while the officers lead the
questioning. (However, Voogt has to be careful to
make sure he does not let himself become a witness.
In fact, the Hennepin County [Minneapolis]
Attorney's Office has a rule forbidding assistants
from going to the scene of the crime while it is
still hot, but Michael Freeman, the county
attorney, feels such a blanket prohibition may be
too strong.) Voogt's presence gives him an
opportunity to size up potential witnesses and
affords witnesses a chance to recognize his concern
and availability. Voogt may suggest individuals the
investigators should interview, or he may identify
evidence to collect -- people or materials that may
seem unimportant to the police but that Voogt knows
he will need in order to win the case later on. 

Most of all, Voogt familiarizes himself with the
case -- and possible witnesses -- from the ground
up. This makes it unnecessary for the inspectors to
fill him in later and provides him with a "feel"
for the case that no amount of subsequent verbal or
written information from the police can provide.
When the investigators send their notes and
paperwork to Voogt months later, he does not have
to interpret them: he was there at the scene. With
murder cases, even the county attorney gets
involved from the start: he is called by
dispatchers whenever a murder occurs, and he
sometimes beats the police officers to the scene. 

------------------------------

Reasons for Using Memorandums of Understanding 

o Administrators, like point people, come and go.
One prosecutor-based victim/witness program
director had established a good working
relationship with a person in the local public
housing authority, but when the agency's
administrator was replaced, the contact would no
longer cooperate until he knew what to expect from
the new head; as a result, the program director
says, "we are now at an impasse in terms of getting
help in relocating witnesses." A written agreement
might have committed the new administrator to the
arrangement and given the contact a basis for
continuing to cooperate. 

o When they make a commitment in writing,
administrators are less likely to shirk their
responsibilities later on because they will have
been careful to agree to perform only those actions
they are truly prepared to undertake. 

o If a document is available for public inspection,
it is more difficult for signatories to deny their
obligations than if the agreement is merely verbal.

o A written agreement can assure administrators
that their agency will not be responsible for any
duties or costs to which they have not formally
agreed. 

o Administrators can use a written document to
explain that their hands are tied if third parties
object to the new arrangement. 

o A written document reduces misunderstandings and
uncertainty about each party's role and
responsibilities. 

o Documentation can also be used to explain the
agreement to new staff and authenticate the
importance of the arrangement.

------------------------------

Developing Memorandums of Understanding for Witness

Security in Baltimore: A Case Study 

In Baltimore, a comprehensive set of memorandums of
understanding (MOUs) was drawn up by the State's
attorney to serve as the backbone of a new witness
security program. The memorandums provided in
appendix A3 list the agencies involved -- the
State's Attorney's Office, Sheriff's Office, Police
Department, Department of Corrections, Department
of Housing, and the Department of Social Services.
The MOUs detail each agency's duties and financial
responsibilities. The memorandums are contained in
a general program description that includes
procedures for witness relocation, transportation,
witness fees, and the allocation of other program
costs. The program description also lays out the
responsibilities of the witness. 

By combining the MOUs with the program description,
Baltimore has made it easy for participating
agencies to

o understand their role in the program, 

o understand the overall scope and goals of the
program, and 

o see that the program has broad institutional
support from each participating agency (for
example, II.D.1). 

Baltimore's MOUs (see appendix A3) illustrate three
other important ingredients of the most effective
possible witness protection program: 

o providing for a single witness protection
coordinator (see II.A 5 of the MOU) 

o providing for a contact person or liaison within
each participating agency (for example, see II.D.1)

o providing an arrangement for furnishing emergency
services when the important participants cannot
meet or be reached (see II.A.4) 

Because Baltimore's witness security program was
begun only in 1994, institutional awareness of the
program outside the State's Attorney's Office was
still limited. The challenge facing the witness
security program administrator was to build
contacts in each of the cooperating agencies and
ensure that the actual program structure matched
that of the agreements in the memorandums.

------------------------------

Figure 6-3 

Program Implementation Checklist 

1. Form the Organizing Committee

o Perform problem assessment 

o Identify appropriate responses 

o Identify needed and available resources 

o Get high-level endorsements from all key agencies

o Name point people in all cooperating agencies 

o Decide on the composition of the operational team

2. Convene the Operational Team 

o Prepare memorandums of understanding 

o Draft program guidelines and expense forms 

o Identify and prepare to collect program
evaluation data 

3. Name a Program Administrator 

o Notify all agencies of procedures for initiating
requests for witness security 

o Coordinate with investigating agency or unit
(dedicated police unit or district attorney
investigators) 

4. Review Program Operations and Renew Memorandums
of Understanding Annually

------------------------------

CHAPTER 7 

LEGAL ISSUES 

------------------------------

Key Points 

o While laws and rules of evidence vary from State-
to-State, prosecutors are concerned about many of
the same legal issues. 

o Some prosecutors are able to take advantage of
State statutes to prevent intimidation. 

-- Intimidators can be excluded from the courtroom
if their presence compromises witness testimony. 

-- One jurisdiction is allowing hearsay testimony
by police officers at preliminary hearings -- a
practice that shields witnesses from intimidation. 

-- Some jurisdictions permit prosecutors to impeach
their own witness if the person's testimony changes
between deposition or preliminary hearing and the
trial -- a practice that allows prosecutors to
highlight possible intimidation. 

-- A number of individual prosecutors and
jurisdictions have developed procedures that
safeguard witness information until trial. 

o Gang suppression legislation is considered a
useful adjunct to the witness protection efforts by
some prosecutors. 

o A number of jurisdictions have passed new, or
strengthened old, witness intimidation statutes. 

o Community-wide intimidation can be combated with
several types of civil remedies. 

o Some jurisdictions have used RICO prosecutions of
highly organized drug-selling gangs to remove large
numbers of gang members from a neighborhood -- an
approach that also decreases community- wide
intimidation. 

o Local governments and police departments may be
liable for the safety or misconduct of witnesses
participating in witness security programs. To
prevent successful suits, police investigators,
prosecutors, and victim advocates should never
promise any protection they cannot actually provide
and should screen witnesses carefully before
providing security.

------------------------------

While witness tampering statutes, obstruction of
justice laws, and rules of evidence vary from State
to State, prosecutors across the country expressed
interest in the following legal issues related to
dealing with witness intimidation: 

o legal barriers to preventing courtroom
intimidation, including 

-- exclusion of the public from the courtroom, 

-- using hearsay testimony from law enforcement
officers, 

-- impeaching inconsistent witness testimony, and 

-- keeping witness and jury information
confidential; 

o anti-intimidation legislation; 

o gang suppression statutes; 

o laws to combat community-wide intimidation; and 

o liability issues. 

The following discussion summarizes these issues
and highlights innovative legal approaches some
States and individual prosecutors are using to
address witness intimidation. 

Preventing Courtroom Intimidation 

Prosecutors are using a number of approaches to
prevent witness intimidation in the courtroom by
defendants or their associates. The approaches
attempt to balance the constitutional right of the
defendant to a fair, public trial with the right of
a witness to testify without fear of retaliation.
Balancing defendant and witness rights is often
difficult because the legal system gives the
highest priority to the rights of the accused and
lesser weight to the rights of victims and
witnesses. The greater number of rights afforded
defendants compared with those given to witnesses
concerns many prosecutors and police officers.
Lieutenant Earl Sanders of the San Francisco Police
Department observes, "The accused has the right to
face his accuser. If witnesses are intimidated out
of the justice equation, our justice system is left
with what amounts to a wagon with only three
wheels." The following legal approaches have been
used in some jurisdictions to give greater security
and reassurance to witnesses while not infringing
on the rights of the defendant. 

Exclusion of the Public From the Courtroom 

Because the Sixth and Fourteenth Amendments to the
Constitution (and often State constitutions or
statutes) guarantee the defendant's right to a
public trial, judges are understandably reluctant
to exclude individuals from the courtroom or to
close it entirely. However, case law supports
limited court closure or the temporary exclusion of
specific individuals if adequate evidence is shown
that an open court would endanger a witness or
compromise the court's ability to elicit full and
accurate testimony from a witness.[1] The practice
of
closing the court or restricting attendance to
prevent intimidation has been upheld on appeal
where 

o the witness has been threatened or harassed
outside the courtroom, especially when the witness
becomes upset or refuses to testify in the presence
of the intimidator;[2] 

o the witness has been or feels threatened, and the
defendants have a history of violent retaliation
against witnesses;[3] 

o the witness feels intimidated by the presence of
the defendant's family in court, especially when an
explicit threat has been made and is reported to
the court;[4] and 

o the witness asserts the privilege against self-
incrimination to avoid giving testimony in public
because he or she fears the defendant's associates
will retaliate (see below).[5] 

Prosecutors -- and judges -- who wish to close the
courtroom or exclude specific individuals from the
courtroom can diminish the likelihood that a higher
court will find that the defendant's right to a
public trial has been violated by 

o establishing for the record that a legitimate
threat or fear of reprisal exists for a specific
witness (this may include establishing a history of
violent intimidation by the defendant or his or her
associates), 

o limiting the number of witnesses requesting
exclusions, 

o limiting the percentage of time that court
proceedings are conducted before a restricted
audience, 

o establishing that the level of exclusion
requested is the minimum necessary to reassure the
witness and that no other available security
measure would suffice, and 

o using closed court and audience exclusion
selectively -- that is, only for witnesses who are
intimidated, and no others. 

As discussed in chapter 4, "Preventing Intimidation
in Courtrooms and Jails," because some of the
intimidation that gangs practice in the courtroom
is subtle, judges and prosecutors need to learn how
to identify gang members in court and understand
the nonverbal meaning of their hand signs, clothing
colors, posture, and stares. Prosecutors need to be
able to identify and enter nonverbal intimidation
in the court record so that it can form the basis
of a request for excluding the intimidating gang
members.[6] 

In a few jurisdictions, legislation explicitly
permits removing spectators who intimidate
witnesses or closing the courtroom to prevent
witness intimidation. For example, in California
the court may, after holding a hearing, order the
removal of any spectator who is intimidating a
witness if it finds clear and convincing evidence
that 

o the spectator to be removed is actually
intimidating the witness, 

o the witness will not be able to give full, free,
and complete testimony unless the spectator is
removed, and 

o removal of the spectator is the only reasonable
means of ensuring that the witness will give
complete testimony.[7] 

This statute may not be used to exclude the press
or the defendant from any part of the trial. 

As of 1997, California prosecutors will also be
able to request that a courtroom be closed during a
witness's testimony if public testimony would
endanger the person's life and if no other
precautions -- such as disguises, weapons searches,
or exclusion of individual spectators -- are
sufficient to minimize the perceived threat.[8] 

The North Carolina State Code allows presiding
judges to "impose reasonable limitations on access
to the courtroom when necessary to ensure the
orderliness of the courtroom proceedings or the
safety of the persons present."[9] The judge may
also
order spectators to be searched for weapons and
their belongings inspected. 

Using Hearsay Testimony From Law Enforcement
Officers in Lieu of Direct Witness Testimony 

In addition to expanding the use of the grand jury,
the California public initiative Proposition 115 (the
Crime Victims Justice Reform Act of 1990) also 
authorized experienced or specially trained police
officers to testify in criminal preliminary hearings
in lieu of victims and witnesses who are unavailable
to testify. This legislation enables prosecutors to
use the statements of witnesses in gang cases --
especially witnesses who are reluctant to confront
the defendant -- to establish probable cause.[10]
The use of hearsay at preliminary hearings --
including the use of "multiple level" hearsay, such
as an officer reading the statement of a victim
from a police report which that particular officer
did not prepare -- has been upheld in a number of
appeals.[11] However, the California Supreme
Court expressed particular concern about the use
of "officer readers" who had no involvement in the
case except to read the report of another officer
into the court record. In one such case, the trial
court was frustrated because the officer reading the
report was unable to explain apparent discrepancies
in the investigating officer's report.[12] As a result,
the court and the district attorney discourage the use
of hearsay testimony by police officers not directly
involved in the case being heard.[13]
In a memorandum concerning the proper use of
hearsay testimony in preliminary hearings, the Los
Angeles chief deputy district attorney advised his
staff not to use hearsay testimony to 

o perpetuate the testimony of a witness who might
be unavailable for trial, 

o memorialize testimony of a witness who might
change his or her testimony at trial, 

o test the credibility of a witness whose story
might be open to question, 

o present a witness or officer who has some special
knowledge of complicated facts to which the
investigating officer might not be able to testify
adequately, 

o obtain the testimony of a witness given immunity,

o test the witness's ability to identify a
defendant rather than waiting for trial, or 

o obtain testimony that may encourage a favorable
disposition.[14] 

Obviously, most intimidated witnesses are likely to
fall into one or more of these categories. As a
result, a prosecutor who is considering using
officer testimony to shield a witness at a
preliminary hearing would need to decide which is
more important to winning the case- -reassuring the
witness by sparing him or her confrontation with
the defendant, or eliminating the possible danger
that an intimidated witness might later recant his
or her testimony or be unavailable to testify.[15] 

A Vermont statute permits depositions to be used as
substantive evidence at trial if the deponent is
unavailable or if the witness gives inconsistent
testimony at trial, including forgetting previous
testimony (see below).[16] 

Impeaching Inconsistent Witness Testimony 

A number of prosecutors reported that, due to
pretrial intimidation, witnesses often alter their
testimony between the pretrial hearing, grand jury
appearance, or deposition, and trial; in many
cases, witnesses claim to have forgotten their
previous testimony. In response to this problem,
some jurisdictions have amended their rules of
evidence so that prior inconsistent testimony given
by the witness under oath at a hearing, deposition,
or other proceeding can be admitted at trial as
substantive evidence. This change allows
inconsistent statements to be admitted as evidence
of the matters stated, not merely as evidence of
the witness's unreliability. 

For example, the District of Columbia Code was
recently amended to permit any party to impeach the
witness, including the party calling the witness.
In addition to allowing the introduction of prior
inconsistent statements as substantive evidence,
the code also allows witnesses to introduce prior
consistent statements to rebut allegations that they
had recently been influenced improperly to give
testimony or identify a defendant.[17] California
law has permitted the introduction of inconsistent
statements by witnesses as substantive evidence
since 1967. At that time, the California Law Review
Commission observed that permitting the introduction
of inconsistent statements by witnesses posed no real
threat to the fairness of the trial process; in particular,
the commission noted that the witness is in court and
available for cross-examination, and that in many
instances earlier statements by witnesses are more
likely to be true than are later ones (which may be
influenced by controversy surrounding the trial).[18]
The latter observation is even more cogent today, as
witness intimidation becomes ever more common as
an additional factor that may render later testimony
less credible. 

Keeping Witness and Jury Information Confidential 

A number of prosecutors and investigators expressed
concern about defendants obtaining the names,
addresses, and testimony of witnesses before trial
and using the information to intimidate them. In
some jurisdictions, prosecutors have found ways of
avoiding this danger. New York State criminal
procedure rules allow the prosecutor in
extraordinary circumstances to withhold the names
of witnesses until they take the stand. The courts
have permitted this exception in cases involving
violent gang- and drug-related crime. Prosecutors
in New York City also reported that jurors are
required by State rules to provide only the part of
Manhattan in which they live, not their precise
address. In Hennepin County, Minnesota, in cases
involving intimidation the district attorney
routinely asks for indictments, grand jury
presentations, wiretap applications, complaints
(until served), and search warrants to be sealed
until trial. While judges do not consider such
motions unusual, only some of them give approval.
When they have secretly relocated a witness, some
district attorneys use their own offices as the
witness's mailing address or arrange to have his or
her mail forwarded to a secure post office address.
Many prosecutors say that addresses need not be
disclosed as long as the witness can be made
available to the defense. In a trial in Des Moines
involving seven defendants charged with murder and
terrorism, Polk County prosecutors kept the names
of several witnesses secret until deposition and
even then revealed only their names, keeping their
addresses secret until trial. 

In 1994, prosecutors in Montgomery County,
Maryland, took the unusual step of providing a
witness's name to the defense but obtained a
protection order barring the defense attorney from
revealing the identity of the witness to the
defendant, his brother, or their acquaintances.
According to the prosecutors, the witness -- who
was listed only as John Doe in court documents but
whose identity was known to the defense -- had
solid evidence connecting the defendant to a
double murder that had been witnessed by more than 
300 other people, none of whom were willing to
testify because they feared retaliation from the
defendant and his associates. Because the one
cooperative witness was also terrified of reprisal,
the prosecutor asked the court to allow him to
testify under a pseudonym and to clear the
courtroom of spectators during his testimony.[19]
David Schertler, chief of the U.S. Attorney's
Office's homicide unit in Washington, D.C.,
reported that his unit had used similar witness
protection orders in two drug-related murder cases.

In California, Proposition 115 restored to the
grand jury the authority to indict without a
subsequent preliminary hearing. Because witnesses
and testimony are kept secret, some prosecutors
favor grand jury indictment over a preliminary
hearing in organized crime cases, murder cases that
need to be expedited, and cases where the identity
of a victim or witness needs to be protected
temporarily. However, evidence given by a witness
in a preliminary hearing, unlike evidence presented
before a grand jury, can be used during trial
because of the opportunity afforded the defense
during the hearing for cross-examination. 

In Washington, D.C., preliminary hearings,
witnesses are often identified by number only.
However, because the defendant has access to the
descriptions of each witness's testimony, the
defendant is often able to deduce who that witness
is. In one case, a witness who had been shielded in
this manner was assassinated the day after the
preliminary hearing. 

Legislation Designed To Prevent Intimidation 

Most gang-related witness intimidation occurs in
connection with violent crimes such as attempted
murder or homicide, which carry potentially long
prison sentences. In a number of jurisdictions,
statutes against witness tampering, suborning
perjury (encouraging perjury by threats or
inducements), or obstruction of justice do not
carry high enough penalties to either deter or
substantially punish witness intimidation in cases
that already involve a serious violent crime. As a
result, defendants are reported to feel they have
little to lose -- and a great deal to gain -- from
even the most violent attempts at witness
intimidation (for example, attempting to murder
anyone even suspected of cooperating with the
police in a homicide case). The following statutes
are examples of legislation which address some of
the concerns most frequently voiced by prosecutors
about this type of legislation: the need for stronger
sanctions, the need to be able to prove intimidation
using hearsay evidence and to get the intimidator
off the streets quickly, and the need to contain
witness protection costs and limit witness risks
by expediting trials involving intimidation. 

o After the gang execution of a police officer in
1993, the prosecutor in Hennepin County
(Minneapolis) deliberately introduced a somewhat
archaic accomplice-after-the-fact bill into the
legislature rather than a "modern" obstruction of
justice bill. Because the latter type of statute
applies to people who impede an ongoing
investigation, the possible penalties are
relatively light; however, someone who is an
accessory after the fact to any felony crime of
violence (which, by statutory definition, includes
drug crimes in Minnesota) is considered in effect
to have aided in the commission of the crime, a
considerably more serious offense. As a result,
under the Minnesota accomplice-after-the-fact
statute, the punishment is up to one-half the
statutory prison sentence or fine that could be
imposed on the principal offender for the original
crime of violence. Furthermore, the accomplice-
after-the-fact statute is broader than the
obstruction-of-justice statute because it includes
such activities as destroying evidence, accepting
proceeds of the crime, and providing false
information to a law enforcement officer (see
appendix C4). 

o The Council of the District of Columbia amended
the Theft and White Collar Crimes Act of 1982 to
raise the maximum penalty for obstruction of
justice from 10 years' imprisonment to the maximum
penalty for the underlying offense.[20] The changes
quadrupled the maximum sentence for obstruction of
justice and made it easier for prosecutors to show
that a witness might have been intimidated. 

o The District of Columbia's criminal code also
permits the pretrial detention of defendants who,
among other things, pose a danger to any other
person in the community. If the hearing judge finds
clear and convincing evidence that there is a
serious risk that the person will intimidate, or
attempt to threaten, injure, or intimidate, a
prospective witness or juror,[21] and no conditions
of bail will reasonably ensure the safety of others
in the community, then the defendant may be
detained before trial. In conjunction with similar
detention provisions for defendants accused of
crimes of violence, defendants with pending felony
actions against them, and defendants on parole or
probation, pretrial detention can serve as a potent
disincentive for potential intimidators. (Of
course, pretrial detention of a defendant does not
deter intimidation by that defendant's gang or
associates.) 

o Nevada has an intimidation statute whose
effectiveness is increased when used in combination
with the State's gang enhancement statute. The gang
membership statute doubles the punishment for
intimidation. While the punishment for intimidation
is one to six years, if the defendant can be shown
to be a gang member, another one to six years are
added, to be served consecutively. In addition,
with only limited exceptions, the court may not
grant probation or suspend the sentence of a person
convicted of a gang-related felony.[22] 

o The Pennsylvania victim and witness intimidation
statute (see appendix C2) authorizes any criminal
court, following a hearing, to issue a protection
order directing that the defendant and any other
named persons not violate the statute, keep a
prescribed distance from the witness, and have no
unauthorized communication with the witness. If the
order is violated, the defendant and other persons
named in the order can be prosecuted for the
underlying activity if it is a separate crime (such
as threatening the witness), be held in contempt of
court, or have their pretrial release revoked. The
statute also makes compliance with laws relating to
witness intimidation and retaliation against
witnesses a condition of any release.[23] 

o The Rhode Island witness protection statute
stipulates that, at the request of the State's
attorney general (the prosecuting authority for
Rhode Island), cases with protected witnesses must
be given priority on the criminal trial calendar.[24]

Prosecutors and police investigators can determine
whether their States have similarly useful
legislation and, if not, work with their
legislatures to have such statutes enacted. 

Gang Suppression Initiatives 

Efforts to limit gang-related witness intimidation
cannot be undertaken in isolation from the broader
issue of gang suppression. A growing number of
States have enacted legislation that increases
penalties for crimes committed by gang members as
part of gang-related criminal activity (so-called
gang enhancement statutes),[25] permits the
prosecution of juveniles as adults in certain gang-
related cases,[26] or creates a separate offense of
membership in a criminal street gang.[27] In the
absence of such special legislation, the
admissibility in court or at sentencing of evidence
of gang membership and gang practices varies from
jurisdiction to jurisdiction.[28] 

The California Street Terrorism Enforcement and
Prevention Act has served as a model for some of the
most stringent anti-gang legislation nationally.[29]
The act creates, as a separate felony offense, the crime
of membership in a criminal street gang if the gang
member has knowledge of a pattern of criminal
activity by the gang and willfully promotes or assists
in felonious crimes by other gang members. The act
provides for sentence enhancements for participants
in gang crimes, authorizes gang nuisance abatement
lawsuits, and regulates weapon possession by gang
members. Prosecutors in California report that they
have made effective use of the gang membership,
gang enhancement, and nuisance abatement provisions
of the act. 

At the urging of Michael Freeman, Hennepin County
Attorney, the Minnesota legislature enacted legislation
authorizing counties to establish standard curfews,
replacing a patchwork of municipal curfews.
According to Freeman, a county-wide curfew makes
it impossible for teenagers from communities in
Hennepin County to claim in Minneapolis (a popular
destination), "But in my town there's no curfew," or
"In my town I can stay out until midnight." In addition,
the legislation funded curfew and truancy centers to
act as liaisons between law enforcement and parents of
teens with curfew or truancy violations. These centers
are expected to provide an early warning for parents
and law enforcement officers concerning potentially
delinquent or neglected youths. A number of other
prosecutors emphasized that added attention to the
enforcement of truancy laws and curfews could
significantly hinder gang participation by minors.
Prosecutors should be aware, however, that the use
of curfews is controversial and might not find support
in every community. 

For a thorough review of past and current gang
research and a discussion of related policy issues,
see the literature recommended in chapter 8,
"Sources of Help." For a sample gang information
form for police use, see appendix B2. 

Statutory Aids to Combating Community-wide
Intimidation 

Using Civil Remedies: Nuisance Abatement 

The use of civil remedies to combat gang-related
criminal behavior is becoming more common because
civil remedies can be easier to use than criminal
sanctions, may provide swifter punishment, and
often do not require victims to testify.[30] As
discussed below, several types of civil actions
have been used to decrease the impact of gang- and
drug-related crime on specific neighborhoods. 

Nuisance Abatement Orders Against Street Gangs 

The newest and perhaps most controversial civil
approach is nuisance abatement lawsuits against
entire street gangs as opposed to charging
individual gang members with specific illegal
activities. A number of California municipalities,
including Los Angeles, Van Nuys, and Santa Clara,
have attempted to use nuisance abatement lawsuits,
authorized under the California Street Terrorism
Enforcement and Prevention Act, to eliminate gang
presence and gang intimidation on the streets of
specified areas or neighborhoods (one preliminary
injunction prohibited gang assembly in a 180-
square-block zone).[31] 

The list of activities prohibited to gang members
in nuisance abatement orders varies but often
includes some acts that are already illegal, such
as possession and showing of illegal weapons,
intimidating or battering residents, and trespassing,
as well as a number of otherwise noncriminal acts,
such as possessing a glass bottle or carrying a pager,
marker, undocumented car part, or screwdriver. In
general, abatement orders attempt to limit the
possession of deadly weapons, fighting, and
aggressive gang behaviors such as blocking streets,
forcibly entering apartments and intimidating
residents, defacing property with graffiti, and
drinking in public. Some orders impose curfews on
underage gang members. Most importantly, most
gang abatement orders forbid members from
gathering on the streets for any purpose, without
any determination of individual misconduct.

T.R. Boga, a legal analyst who has reviewed the effect
of gang abatement injunctions in these communities,
reports, "In those communities where an abatement
injunction has been in effect, authorities consider it an
unqualified success. [For example,] law enforcement
officers report a total cessation of gang incidents in the
100 block of West Elmwood Avenue six months after
[the city of] Burbank's Acosta injunction was issued.
Whether these court orders actually reduce the
incidence of criminal gang activity or merely replace
it to other neighborhoods is unclear."[32]

Despite anecdotal evidence of the effectiveness of
nuisance abatement orders, Boga expresses
reservations about the constitutionality and legal
necessity of gang abatement orders that prohibit
innocent association and assembly among gang
members, arguing that only criminal gang activity
should be prohibited and that other more limited
civil and criminal justice tools are adequate to
combat gang and drug crime. Drug loitering
ordinances, discussed below, are among the more
focused measures Boga favors over gang abatement
orders. 

-------------------------------------

How Gang Members May Exploit the Legal Process 

Prosecutors reported that gang members have learned
to exploit the legal process in a number of ways
that make getting witness testimony more difficult.

o Asserting privilege against self-incrimination. Both
 gang members and some intimidated witnesses use their
 Fifth Amendment right against self-incrimination as a
 means to avoid testifying. Some judges suggested that
granting a witness immunity was one method of
compelling testimony. In cases in which the witness is
cooperative but genuinely intimidated, clearing the court
or excluding gang members may solve the problem. 

o Anonymously hiring attorneys for inmates who are
potential witnesses. U.S. attorneys in Washington, D.C.,
reported that gangs had hired attorneys to represent
inmates who were codefendants or incarcerated on
unrelated charges and who might be interviewed about
or called to testify in a gang case. By providing its own
attorney, the gang hopes to control access to the
witness, deprive the inmate of privacy in his or her
discussions with the U.S. attorney, or influence the
nature of the witness's testimony. While nothing improper
may occur under these circumstances, the mere presence
of the gang's lawyer during an interview with the
prosecutor may dissuade the witness from cooperating.
U.S. attorneys noted that inmates are often unaware that
the gang lawyer is claiming to represent them. In such
cases, it is useful to speak directly to an inmate to
determine what counsel, if any, he or she would like. 

o Attending court. Gang members may take advantage
of the constitutional guarantee of an open trial to attend
trials in groups or individually in the hope of influencing
testimony or frightening witnesses. As discussed in
chapter 4 and elsewhere in this chapter, a number of
interventions, such as excluding gang members or
closing the courtroom to the public, videotaping or
photographing spectators, searching spectators for
weapons, and increasing the presence of uniformed
officers or gang detail officers in the courtroom, may
prevent or dilute this form of witness intimidation. 

o Using discovery to identify witnesses for
intimidation. Several jurisdictions reported that
defendants use witness information in court
documents made available to the defense during
discovery to target key witnesses for intimidation.
Even when witnesses' names are not included in
these documents, descriptions of the testimony to
be given may be sufficiently specific to identify
the source. With free access to phones and private
correspondence, even incarcerated defendants can
use such information to arrange the murder or
intimidation of key witnesses. In Washington, D.C.,
U.S. attorneys successfully used the jailhouse
correspondence of a murder defendant to help
convict him and a fellow gang member of the murder
of a government witness who was scheduled to
testify against him.[33] Prosecutors also searched
jail cells in order to uncover suspected
intimidation plots; one search produced
confidential court documents with the name of a
person handwritten next to each anonymous
description of key witness testimony.  

------------------------------

Nuisance Abatement Orders Against Drug Dealers or
Their Landlords 

A number of prosecutors and community groups have
used nuisance abatement lawsuits to remove drug
dealers from gang- and drug-dominated
neighborhoods.[34] These evictions aim to bolster
community confidence in the justice system, foster
ties between the prosecutor's office and local
residents, and empower law-abiding residents to
reclaim an interest in their neighborhood. All of
these goals are also useful for breaking the cycle
of noncooperation in intimidated communities. In
Baltimore, the State's attorney established the
Community Anti-Drug Project to help educate
community organizations about how to use the local
drug nuisance abatement law and to offer training,
assistance, and legal support to organizations
interested in filing suits. (See appendix B6, "Helping
Communities With Nuisance Abatement Suits.") 

Drug Loitering Ordinances 

Drug loitering ordinances have also been used to
help disperse gangs and drug dealers in gang-
dominated neighborhoods. These ordinances usually
include a list of noncriminal activities that may
be indicative of illicit purpose as a guide for law
enforcement officials, and they have the advantage
of permitting purely social assembly by gang
members while discouraging criminal drug-related
activity in public.[35] 

RICO Prosecutions 

Some jurisdictions have begun to bring charges
against large numbers of gang members under the
racketeering and conspiracy provisions of the
Federal Racketeer Influenced and Corrupt
Organizations Act (RICO).[36] In Washington, D.C.,
and Chicago, Illinois, Federal prosecutors and
investigators have cooperated with local
authorities to prosecute gangs using RICO. In
Chicago, Federal prosecutors obtained convictions
against 52 members of one gang.[37] Prosecutors in
Kansas City have used the State RICO act to indict
multiple defendants in cases concerning gang-
controlled drug operations.[38] 

Liability Issues: Witness Safety and Witness
Misconduct 

Many witness security programs are just beginning
to address the complex issues of liability
associated with caring for intimidated witnesses.
Only a handful of witnesses or their families have
sued municipalities, the police, or prosecutors in
relation to witness security.[39] However, these
early cases -- some of which involved large court-
ordered awards -- suggest that liability for the
safety and conduct of witnesses in local witness
security programs should be considered carefully
when structuring a program and training prosecutors
and police officers to work with witnesses. 

Governmental Responsibility To Protect Threatened
Victims and Witnesses 

There is no consensus among courts concerning the
liability of government entities for failure by law
enforcement agencies to provide adequate protection
to the public as a group. Many courts have held
that, where there is no statute to the contrary,
government entities are not liable for injuries
caused by the negligence of its law enforcement
agencies.[40] However, exceptions to this general
standard of governmental immunity exist when courts
have found, by an examination of the facts of
individual cases, that a "special relationship" had
been created between the injured individual --
often a threatened victim or witness- -and the
governmental entity. 

A special relationship may arise from 

o a report to the police agency by a third party of
a specific threat to the witness, 

o a promise by the prosecutor or a police officer
to provide added security to a threatened victim or
witness, 

o a promise by the police department to alert the
victim to the release from jail of a known
intimidator, or 

o in some cases, a request for protection directly
from the intimidated victim or witness.[41]
(Requests
from frightened individuals are sometimes not
considered sufficient by the courts to create a
special relationship between the government entity
and the potential victim.[42] 

Given these criteria, it seems likely that
participation in a witness security program --
whether it is managed by a law enforcement agency
or by a prosecutor's office -- is likely to create
the very sort of special relationship between the
threatened victim or witness and the government
entity that may make the agency or office liable if
the program does not handle the case
conscientiously. 

In Los Angeles, witness protection lawsuits have
reached the courts. Carpenter v. the City of Los
Angeles[43] concerned a robbery in which a police
officer was aware that a defendant had contracted
to have Carpenter, a prosecution witness, killed
but did not inform the witness of the potential
danger or provide security. Carpenter was
subsequently wounded by the defendant (and the
police officer who had failed to warn Carpenter was
fatally shot by the defendant following his own
testimony in the case). The court awarded Carpenter
$1.2 million in damages. Wallace v. the City of Los
Angeles[44] concerned a young woman who had been
enlisted to testify in a homicide case that the
district attorney subsequently declined to
prosecute. The woman received no warning and no
security services despite death threats from the
defendant, the defendant's known history of witness
intimidation, and his suspected involvement in two
other homicides. The witness was killed before she
could testify. The court awarded the plaintiff, the
murdered witness's mother, $750,000 in damages,
ruling that a special relationship had been created
between the detective and the witness by her
cooperation and that a duty to warn her of danger
arising from that special relationship had been
breached. The court established a duty to protect a
witness once the person has been enlisted to
testify even if the case is later declined. 

Early experience suggests that, if police
investigators and prosecutors are conscientious
about the protection they are offering and
promising to victims and witnesses, they can avoid
liability even where a special relationship has
been established. For example, in a case in
Washington State, the City of Seattle was held not
to be liable for the death of a female victim with
whom the police investigator had established a
special relationship but who had refused an offer
to be taken to a safe location. The court ruled
that although a special relationship had existed
between the police department and the woman, it had
been terminated when she refused its offer to take
her to a place of safety.[45] Similarly, Lieutenant
Earl Sanders in San Francisco reported that a drug-
addicted witness who had helped the police identify
gang members in her project and who was to testify
against them in an upcoming trial had been murdered
after refusing protection and drug treatment.
Because the police department had audiotaped its
offers of protection and assistance, and her refusal to
accept them, her family did not sue the department. 

Police investigators and prosecutors in smaller
jurisdictions often observed that intimidation
attempts rarely escalate into actual physical
violence. In such jurisdictions, prosecutors and
police should exercise special care in their risk
assessments and subsequent discussions with
witnesses, so they can identify cases in which the
threat is genuine rather than simply assuming that
all claims are exaggerated. 

It is also important to note that these early
liability cases do not involve witnesses who were
receiving protection from police investigators or
prosecutors but were nevertheless harmed; rather,
they concern decisions by investigators or
prosecutors not to inform witnesses of a threat or
not to provide security to a threatened witness who
had been promised protection. The U.S. marshals
interviewed for this report emphasized that no
witness enrolled in the Federal Witness Security
Program who has obeyed the rules has ever been
killed. Similarly, prosecutors reported that no
witnesses relocated under their protection had been
harmed unless they themselves had breached
security. In short, a well-run program that
includes careful ongoing risk assessment should
have little exposure to liability awards arising
from failure to protect intimidated witnesses, even
though claims of liability by witnesses alleging
improper termination from such programs can be
frequent and time-consuming to defend against. 

Governmental Liability for Actions of Protected
Witnesses 

The U.S. Government has had extensive experience
with liability issues arising from misconduct by
protected witnesses because it administers the
Federal Witness Security Program (see the box in
chapter 3).[46] These cases are of interest to local
prosecutors and police investigators because they
highlight issues that are likely to arise as the provision
of witness security becomes more common at the
local level. 

The most serious liability issue the U.S. Government
has faced resulted from the relocation of children
without the consent of noncustodial parents (see
above).[47] While local police departments and
prosecutors are unlikely to change a witness's name
or ask the person to not contact relatives on a
permanent basis, administrators of local programs
must be aware of parental rights, including court-
ordered visitation rights, when relocating an
intimidated family or juvenile witness and guardian. 

There have also been suits against the U.S.
Government alleging negligence in its supervision
or selection of participants in the Federal Witness
Security Program who committed crimes (including
murder and fraud) while under U.S. Government
protection. In general, courts have rejected these
claims citing the discretionary function exception
to the Federal Tort Claims Act (FTCA) (28 USCS s.
2680[a]).[48] 

A number of local prosecutors and police
investigators expressed concern about crimes
committed by their own protected witnesses. Given
the common observation that today's witness is
often tomorrow's defendant, local programs need to
consider carefully whether and how to protect the
community from government witnesses. Investigators
and prosecutors reported an array of crimes
committed by witnesses under their care, including
destruction or theft of property from hotels and
motels where witnesses were housed; engaging in
prostitution out of a motel room rented by the
prosecutor; destruction of temporary housing or
illicit use of housing for drug buying, dealing,
and use; shoplifting; and assault. One prosecutor
reported that protected witnesses had robbed the
motel in which they had been placed for safety.
While courts have generally not held the U.S.
Government responsible for the actions of relocated
witnesses (because, among other reasons, it is the
U.S. Marshal Service's statutory responsibility to
protect the witness, not the public), State and
local programs have the dual responsibility to
protect both witnesses and the public in their
jurisdictions. 

The possibility that a protected witness may engage
in conduct that will leave the prosecutor, police
department, or city or county vulnerable to tort
claims reemphasizes the need for clear guidelines
for participation in any witness program, strict
application of program rules, and excellent
documentation of any agreements with witnesses--
including the decision to terminate services. In
Washington, D.C., as part of the witness protection
approval process, witnesses are required to undergo
a psychological examination to help assess their
suitability for inclusion in the program. While
this step slows the approval process, it may help
to limit prosecutor and police department liability
by alerting them to potentially violent, addicted,
or severely unstable witnesses. (See chapter 6 for
a complete discussion of admission criteria.) 

Conclusion 

There are a growing number of legal approaches to
combating witness intimidation. Stronger anti-
intimidation statutes may be helpful in some
jurisdictions, but of equal interest are laws that
make it easier to admit hearsay testimony by police
officers in order to shield intimidated witnesses,
civil remedies that can be used to fight community-
wide intimidation, and gang suppression statutes
that may discourage or raise the stakes in gang
crimes. Legislators, prosecutors, and community
outreach workers need to look at the full spectrum
of legal tools available to them in the fight
against witness intimidation. 

-----------------------------------

Arizona's Statewide Gang Suppression Initiative 

In response to a dramatic escalation in gang
activity in Arizona, the State legislature provided
$6 million to the Department of Public Safety in
1994 and $9 million in 1995 to set up and run the
multiagency, statewide Gang Intelligence Team
Enforcement Mission (G.I.T.E.M.), intended to bring
together law enforcement agencies in a coordinated
approach to dealing with gangs. The team
supplements local gang enforcement efforts, which
are frequently ineffective because of lack of
adequate resources, by sending in teams to assist
in cases and by training local personnel to deal
with their gang problems on their own. An advisory
group of agency heads from a cross section of the
partnership agencies develops policy and
establishes priorities for the use of G.I.T.E.M.
assets in response to requests for assistance from
law enforcement agencies statewide. 

The program established a core group of trained
gang investigators, deployed from two locations in
the State, that responds to calls for service from
any law enforcement agency in the State with both
planned responses and crisis intervention . The
team consists of 85 Federal, State, county,
municipal, and Indian tribal officers from 41
jurisdictions. Personnel from other law enforcement
agencies are assigned for a one-year commitment to
the team, with the program reimbursing the agencies
for the officers' salaries, equipment, overtime,
training, and travel. In addition to the full-time
year's commitment, local law enforcement agencies
can assign an officer to the task force for
intensive 30-day field training in gang recognition
and intervention techniques (the program reimburses
agencies for personnel costs). The Federal Bureau
of Investigation; Bureau of Alcohol, Tobacco, and
Firearms; Bureau of Immigration and Naturalization;
and Drug Enforcement Administration have all
contributed personnel or other assets to the
effort. 

A major focus of the team is the gathering of
intelligence on gang members and gangs in order to
target them for enforcement most effectively. The
team includes full-time personnel who analyze gang
data and disseminate them to other law enforcement
agencies, using a data base that catalogs over 700
gang sets statewide and several thousand gang
members and associates. 

Another G.I.T.E.M. focus is rural areas, where law
enforcement officers often lack the personnel or
skills to respond effectively to gang problems.
Four G.I.T.E.M. squads are stationed in rural
counties where, according to Captain David
Gonzales, the team coordinator, "We get good
cooperation because the communities are closely
knit and because, having seen the increased gang
activity in Phoenix and Tucson, residents say,`We
don't want that coming here.'" Distance is not a
problem because the task forces officers live in
the local communities. The program also brings
rural officers into Phoenix for training in gang
enforcement and observation of the types of gangs
and gang activities present in the city. In each of
the four counties, an advisory board of local law
enforcement administrators and the county attorney
meet monthly with the G.I.T.E.M. squad to discuss
trends and strategies so that the local task squad
can determine how best to address each gang problem
and share information on new gangs and gang
members. 

The program also targets witness intimidation. Team
personnel establish ties with community leaders to
encourage them to make clear to youngsters that it
is all right to testify against gang members --
they will not be violating any street code of
silence -- and that the community will support them
if they do, including accompanying them to court to
testify. Team members also meet with youngsters
themselves to encourage them to report gang
activity and testify against gang offenders. Since
July 1, 1995, G.I.T.E.M. has responded to 228
service requests from 72 different agencies and
participated in the arrest of 2,251 individuals and
the seizure of 472 firearms. 

For additional information about G.I.T.E.M.,
contact the coordinator, Captain David Gonzales, at
2828 North Central Avenue, Suite 1060, Phoenix,
Arizona 85004, (602) 223-2561, fax (602) 223-2588. 
 
------------------------------

Legal Barriers to Relocating Some Witnesses 

Some prosecutors encounter legal difficulty
relocating minors whose noncustodial parent refuses
to agree to the relocation. Parental objections are
especially vehement when the proposed relocation is
part of the Federal Witness Security Program,
because noncustodial parents stand to lose all
contact with their children permanently. However,
parental rights can complicate any plan to relocate
a juvenile outside the jurisdiction. In particular,
no juvenile can be relocated without the permission
of an adult guardian, but when the adult custodian
of a juvenile witness is a foster parent, step-
parent, or a single parent, the juvenile's natural
mother or father may be especially likely to
object. 

Some jurisdictions, such as Washington, D.C., have
residency requirements for probationers and
parolees which do not allow intimidated witnesses
on probation or parole to relocate outside that
jurisdiction. These requirements preclude
participation not only in the Federal Witness
Security Program but also in any local relocation
program utilizing out-of-town relatives or safe
houses.

------------------------------

Baltimore's Anti-Drug Project/Nuisance Abatement
Task Force 

In Baltimore, the Community Anti-Drug Project
provides support and training for community groups
that are interested in filing nuisance abatement
lawsuits against drug-dealing tenants or their
landlords. The project's staff-- which consists of
a project director, paralegal, and pro bono
attorneys -- helps community members to assemble
cases against drug-dealing neighbors, which are
then filed by the State's attorney in district
court. Nuisance abatement actions generally receive
expedited trial dates and are heard within 15 days.
In 1994, its second year of operation, the program
handled almost 300 applications, of which 133 were 
closed for lack of evidence or support, 78 were
still actively being assembled, 68 were resolved
through landlord action, and the rest were filed
and pending. Donald Todd, chief of the General
Services Division of the Baltimore City State's
Attorney's Office, praised the effect of the
nuisance abatement project on community-prosecutor
relations, saying that it empowers the community
and gives it more faith in government.

--------------------------------------------

Tips That May Help To Limit Liability 

A number of prosecutors and police investigators
who are undertaking witness security efforts offer
the following suggestions that may help to limit
liability:

o Take reports of witness intimidation seriously
and perform timely risk assessments. 

o Share risk assessment data with the witness --
make sure he or she has a realistic understanding
of dangers and security options. 

o Never promise more security than you expect to
provide, and clear any promises first with whoever
has the authority to comply with the promises. 

o Document all offers of assistance and all efforts
to protect the witness, as well as the witness's
acceptance or refusal of security and assistance. 

o Insist on strict adherence to program rules for
relocated witnesses. 

o Make sure the witness understands the
circumstances under which any provided security
will be withdrawn (for example, if the witness
returns to his or her old neighborhood, contacts
friends, takes drugs, or breaks the law), and
document any decision to withdraw protection. 

o Maintain training records of program staff,
especially those of police officers, that document
the department's efforts to instill in officers the
need to adhere closely to the guidelines listed
above along with other departmental policies
governing contact with witnesses. 

Of course, even taking all these precautions is no
guarantee that a prosecutor, police investigator,
victim/witness advocate, or agency can be sure of
avoiding a lawsuit.

------------------------------

State-Level Liability Issues 

When drafting funding legislation, several States
have included clauses limiting State or
administrative liability in relation to locally
administered witness security programs. For
example, a Minnesota statute that funds and
coordinates security services for victims and
witnesses includes the following immunity clause: 

This section does not create a civil cause of
action. Persons authorized to act pursuant to this
section are not liable for damages resulting from a
decision to provide or not to provide protective
services. This section does not impose liability
upon the state, the commissioner, the director, or
other persons acting pursuant to this section for
the death, injury, or other losses to a witness or
victim receiving protective services under this
section.[49] 

Because legislation designed to grant the State
immunity confers immunity only on fund-granting
agencies, it continues to be important for local
administrators to consider taking steps to shield
themselves from civil actions in witness protection
cases, such as the steps highlighted in the text. 

---------------------------------

Endnotes 

[1] See 55 ALR 4th 1196 (1987 and 1994 Supp.). 

[2] People v. Angel (1989, Colo App) 790 P2d 844;
People v. Ortiz (1991, App Div, 1st Dept) 569 NYS2d
81; Commonwealth v. Penn (1989) 386 Pa Super 133,
562 A2d 833, 16 Media L R 2439. 

[3] People v. Simpson (1989, 2d Dept) 153 App Div 2d
596, 544 NYS2d 381, app den 75 NY2d 776, 551 NYS2d
918, 551 NE2d 199. 

[4] People v. Woods (1989, 2d Dept) 156 App Div 2nd
609,549 NYS2d 116, app den 75 NY2d 971, 556 NYS2d
256, 555 NE2d 628; People v. Baldwin (1987, 2d
Dept) 130 App Div 2d 666, 515 NYS2d 597; People v.
Thomas (1987, 2d Dept) 130 App Div 2d 692, 515
NYS2d 615; People v. Bumpus (1990, App Div, 2d
Dept) 558 NYS2d 553, 562 NE2d 878; People v. Mack
(1991, App Div, 2d Dept) 577 NYS2d 892, app den 79
NY2d 950. 

[5] People v. Bumpus (1990, App Div, 2d Dept) 558
NYS 587, app den 76 NYS2d 553, 562 NE2d 878. 

[6] See two cases concerning exclusions based on
"close watching" and "grinning and grimacing":
People v. Hargrove (1977, 2d Dept) 60 App Div 2d
636, 400 NYS2d 184, cert den 439 US 846, 58 L Ed 2d
147, 99 S Ct 144 (where trial court was found in
error [harmless under the circumstances] for
excluding two spectators who were allegedly
harassing a witness by closely watching him from
the front row of the courtroom); and Bruno v.
Herold (1969, CA2 NY) 408 F2d 125, cert den 397 US
957, 25 L Ed 2d 141, 90 S Ct 947 (where the
courtroom was cleared of all spectators after a
"gang" of 40 spectators leaned forward and grinned
and grimaced while a witness was being sworn in,
causing the witness "mortal dread"). 

[7] California Penal Code s. 686.2 (1990). 0

[8] Title 3, s.868.7 (Examination-Commitment).
Section to go into effect January 1, 1997. 

[9] North Carolina Code, s. 15A-1034 (Maintenance of
Order) (1977). 

[10] California Constitution, sec. 30(b) (adopted by
public initiative [Prop. 115] at the June 5, 1990,
primary election, operative June 6, 1990). 

[11] See, for example, Nollins v. Superior Court
(1990) 224 CA 3d 1171; Meeks v. Superior Court
(1991) 230 CA 3d 698; Martin v. Superior Court
(1991) 230 CA 3d 1192; and Montez v. Superior Court
(1991) 91 Daily Journal D.A.R. 10559; but see
People v. Gandara (1991) 91 Daily Journal D.A.R.
10722, limiting "multiple level" hearsay relating
to chemical analysis of a controlled substance. 

[12] "Justices Warn to Hearsay Use Under Prop. 115:
Questions Raised on `Reading Officers' in
Preliminary Hearings," Daily Journal, September 11,
1991. 

[13] General Office Memorandum 91-27, Greg Thompson,
Chief Deputy District Attorney, Los Angeles, May
14, 1991. 

[14] Ibid. 

[15] California law also permits police officers to
introduce hearsay evidence at the preliminary
hearing and trial if the victim or witness who has
provided police with a signed, notarized statement
is then kidnapped or murdered prior to trial. For
hearsay testimony by a police officer to be
admissible in such cases, among other requirements
there must be clear and convincing evidence that
the witness's kidnapping or death was knowingly
caused by the party against whom the witness gave
the statement and that the statement was not
coerced. There must also be corroborating evidence
connecting the defendant with the serious felony
with which he or she is charged. See California
Evidence Code, Article 15, Sec. 1350 (1985). 

[16] Vermont Rules of Criminal Procedure (V.R.Cr.P.)
15 (h-j) (1991). 

[17] D.C. Act 10-375, December 27, 1994, amending
District of Columbia Code Title 14-102, Impeachment
of Witnesses. 

[18] California Enacted Stats. 1965 ch 299 ss. 2.
(Section 1235. Inconsistent statement.) 

[19] "Identity of Witness Is Shielded: Fear of
Retaliation Cited in Murder Trial," Washington
Post, March 13, 1994. 
[20] D.C Act 10-375, December 27, 1994. (Amending
D.C. Code s. 22-722; D.C. Law 4-164.) 

[21] D.C. Code 28-1322 (detention prior to trial). 

[22] Nevada Criminal Law, 193.168 (1991) (Additional
penalty: Felony committed to promote activities of
criminal gang). 

[23] Pennsylvania Public Administration Offenses,
Subchapter B. Victim and Witness Intimidation, ss.
4951-56 (1980). 

[24] Rhode Island Criminal Procedure, s. 12-30-11
(1990). 

[25] See, for example, Ill.Rev.Stat. ch. 37, para.
805-4 (3.1), et. seq. (1993); Cal. Penal Code S.
186.20 et seq. (West Supp. 1993); Fla. Stat.Ann. s.
874.02, et seq. (West 1993); Ga. Code Ann. s.
16-15-2, et seq. (1993); La.Rev.Stat.Ann. s.
15.1402, et seq. (West 1993); Ariz.Rev.Stat.Ann.
ss. 13-2308.F & 13-3102.A.9 (1993); Iowa Code Ann.
s. 723A.2 (West 1993),; Minn.Stat.Ann. s. 609.229
(West 1993); Nev.Rev.Stat. s. 193.168 (1993);
Okla.Stat.Ann. tit. 21 s. 856.D. (West 1993); S.D.
Codified Laws Ann. s. 22-10-15 (1993); Tex. Penal
Code Ann s. 71.02 (West 1993); cited in Finlay,
Michael D., "Anti-Gang Legislation: How Much Will
It Take?", 14 Journal of Juvenile Law 47 (1993). 

[26] Ill.Rev.Stat. ch. 705, para. 405/5-4 (3.1) (1993). 

[27] Cal. Penal Code s. 186.20 (1988) et seq. 

[28] See Burrell, S.L., "Gang Evidence: Issues for
Criminal Defense," 30 Santa Clara Law Review, 739
(1990): 784-790. The article, which focuses on
California case law and defense issues, provides a
table comparing rulings on the admissibility of
evidence of gang membership and practices in gang-
related cases. 

[29] Ibid. 

[30] See Finn, P., and M.O. Hylton, Using Civil
Remedies for Criminal Behavior: Rationale, Case
Studies, and Constitutional Issues, Issues and
Practices, Washington, D.C.: U.S. Department of
Justice, National Institute of Justice, October 1994. 

[31] See People v. Blythe Street Gang, No. LC20525
(Cal. Super. Ct. L.A. County Apr. 27, 1993) (modified
order preliminary injunction), cited in Boga, T.R.,
"Turf Wars: Street Gangs, Local Governments, and
the Battle for Public Space," Harvard Civil Rights-Civil
Liberties Law Review, 29 (1994): 478-485. 

[32] Ibid., 485. 

[33] See Skalitsky, W.G., "Aider and Abettor Liability,
the Continuing Criminal Enterprise, and Street Gangs:
A New Twist in the Old War on Drugs," Journal of
Criminal Law and Criminology, 81 (1990): 348-365. 

[34] See "Letters From Gang Members Leave a Trail of
Violence," Washington Post, May 24, 1995. 

[35] For a discussion of related legal issues see
LaForte, R., "The Constitutional Implications of
Anti-Drug Loitering Ordinances in Ohio," University of
Dayton Law Review, 18 (1993): 423; and Trosch, W.,
"The Third Generation of Loitering Laws Goes to
Court: Do Laws That Criminalize Loitering With
Intent To Sell Drugs Pass Constitutional Muster?"
North Carolina Law Review, 71 (1993): 513. 

[36] See Finn and Hylton, Using Civil Remedies, 46-50. 

[37] 18 U.S.C. s. 1961 et seq. 

[38] Finlay, "Anti-Gang Legislation," 55-56. 

[39] While litigation is not common nationally,
cases were reported in California, New York, and
Florida. See Carpenter v. City of Los Angeles, 230
Cal. App. 3rd 923, 1991; Wallace v. City of Los
Angeles, 12 Cal App 4th 1385, 1993; Parrotino v.
Jacksonville (1992, Fla App D1) 612 So 2d 586, 18
FLW D 61, review gr (Fla) 621 So 2d 432 (certified
questions to Supreme Court regarding Office of
State Attorney and immunity); and Greene v. New
York (1992) 152 Misc 2d 786, 583 NYS2d 766. 

[40] 57 Am Jur 2d, Municipal, School, and State Tort
Liability, section 27, cited in 46 ALR4th 948,
section 2 (Police Protection-Crime Victim). 

[41] 46 ALR4th 948, section 3. 

[42] See Feise v. Cherokee County (1993) 209 Ga App
733, 434 SE2d 551, cert den (Ga) slip op.; Jane Doe
v. Calumet City (1992, 1st Dist) 240 Ill App 3d
911, 182 Ill Dec 155, 609 NE2d 689, app gr 151 Ill
2d 562, 186 Ill Dec 379, 616 NE2d 332; Morgan v.
District of Columbia (1983, Dist Col App) 468 A2d
1306; and Hartzler v. San Jose (1975, 1st Dist) 46
Cal App 3d 6, 120 Cal Rptr 5 (disagreed with
Whitcombe v. County of Yolo (3d Dist) 73 Cal App 3d
698, 141 Cal Rptr 189.) The majority of these cases
concern domestic assaults. 

[43] 230 Cal. App. 3rd 923, 1991. 

[44] 12 Cal App. 4th 1385, 1993; 16 Cal Rptr 2d 113,
93 CDOS 757, 93 Daily Journal DAR 1399, review den
Wallace v. Los Angeles (1993, Cal) 1993 Cal LEXIS
2944. 

[45] Donaldson v. Seattle (1992) 65 Wash App 661,
831 P2d 1098, review pending (Wash) 1992 Wash LEXIS
234 and review dismd 120 Wash 2d 1031, 847 P2d 481.

[46] See 98 ALR Fed 545 (1990). 

[47] See 18 USCS ss. 3524. For a related case, see
Prisco v. US, Department of Justice (1988, CA3 Pa)
851 F2d 93, cert den (US) 104 L Ed 2d 985, 109 S Ct
2428, 98 ALR Fed 533 (Federal Government interfered
with noncustodial parent rights by accepting child into
the Federal Witness Protection Program/deprivation of
relationship with child). 

[48] 98 ALR Fed 533, p. 563: "[C]ongress has
specifically excluded liability for claims based on
acts or omissions of governmental agency in the
exercise of a discretionary function. In determining
whether a particular act or omission falls within
the discretionary function exception, the court
noted that it must focus on the nature of the act
rather than the status of the actor. The court
concluded that the selection and supervision of
participants in the Federal Witness Protection
Program constituted a discretionary function . . ." 

[49] Minnesota Statutes, 1994, section 299C.065,
subd. 6. See also New York Executive Law s. 837-h,
ss. 8 (1987; expired Nov. 1, 1992).

------------------------------

CHAPTER 8 

SOURCES OF HELP 

------------------------------

Key Points 

o Some written materials, organizations, and
funding sources are available to provide assistance
with witness protection. 

o Prosecutors, police investigators, and victim
advocates who have extensive experience with
providing witness protection can provide useful
guidance to other jurisdictions in setting up or
improving a witness protection program.

------------------------------

Resources that were identified during this study
are summarized below under the headings
"Organizations," "Potential Funding Sources,"
"Literature," and "Individuals." 

Organizations 

Prince Georges County Sheriff's Office. Offers
five-day training course on witness security. See
the program description in chapter 3. Call Colonel
Gerry Powers, Assistant Chief, (301) 952-4000. 

The International Association of Asian Crime
Investigators (IAACI). Devoted to the fight against
Asian organized crime and Asian gangs. Promotes the
exchange of information and intelligence among law
enforcement officers, offers network of Asian
investigators who will assist agencies, and
publishes bimonthly newsletter on cultural issues
and articles on cases solved by IAACI members.
Write to IAACI, 1333 South Wabash, Box 53, Chicago,
IL 60605, or call (312) 413-0458. 

U.S. Department of Housing and Urban Development
(HUD). Provides assistance in using HUD programs
and resources (see chapter 4) through the agency's
Office of the Inspector General (OIG). The regional
OIG special agent in charge can familiarize
prosecutors and police with HUD programs and
resources, and assist with cooperative security
arrangements with local public housing authorities.
A list of regional OIG agents follows. 

Massachusetts, Connecticut, Rhode Island, New
Hampshire, Maine, Vermont 
Mr. Raymond A. Carolan 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
Thomas P. O'Neill, Jr., Federal Building 
10 Causeway Street, Room 360 
Boston, MA 02222-1092 
Office: (617) 565-5293 

Iowa, Nebraska, Kansas, Missouri 
Ms. Nancy S. Brown 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
Gateway Tower II, 5th Floor 
400 State Avenue 
Kansas City, KS 66101-2406 
Office: (913) 551-5866 

New York, New Jersey 
Mr. Frank Deconstanzo 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
26 Federal Plaza, Room 3430 
New York, NY 10278-0068 
Office: (212) 264-8062 

Montana, North Dakota, Wyoming, South Dakota,
Colorado, Utah 
Mr. Joe Haban 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
First Interstate Tower 
633 7th Street, 14th Floor 
Denver, CO 80202-2349 
Office: (303) 672-5449 

Pennsylvania, Delaware, West Virginia, Maryland,
Virginia, Washington, D.C. 
Mr. Robert J. Brickley
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
The Wannamaker Building 
Philadelphia, PA 19107-3390 
Office: (215) 656-3410 

Arizona, California, Nevada, Hawaii 
Mr. Daniel G. Pifer 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
450 Golden Gate Avenue, Room 8-5140 
P.O. Box 36003 
San Francisco, CA 94102-3448 
Office: (415) 436-8108 

Kentucky, Tennessee, North Carolina, Georgia, South
Carolina, Florida, Alabama, Mississippi, Puerto
Rico, Virgin Islands 
Mr. Emil J. Schuster 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
Richard B. Russell Federal Building 
75 Spring Street, SW, Room 740 
Atlanta, GA 30303-3388 
Office: (404) 331-5155 

Washington, Oregon, Idaho, Alaska 
Mr. Noel Tognazzini 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
909 First Avenue, Suite 125 
Seattle, WA 98140-1000 
Office: (206) 220-5380 

Minnesota, Wisconsin, Michigan, Illinois, Ohio, 
Indiana 
Mr. Robert C. Groves 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
77 West Jackson Blvd., 26th Floor 
P.O. Box 2505 
Chicago, IL 60690-2505 
Office: (312) 353-4196 

Washington, D.C., Metro Area, Northern Virginia, 
Suburban Maryland 
Mr. Kenneth J. Darnall 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
451 7th Street, SW, Room 3162 
Washington, DC 20410 
Office: (202) 708-0387 

New Mexico, Texas, Oklahoma, Arkansas, Louisiana 
Mr. Larry D. Chapman 
Special Agent in Charge -- Investigation 
Dept. of Housing and Urban Development 
1600 Throckmorton 
P.O. Box 1839 
Ft. Worth, TX 76101-2905 
Office: (817) 885-5561 

Potential Funding Sources 

o Victims of Crime Act (VOCA). The Victims of Crime
Act establishes criteria that all programs that
receive VOCA victim assistance grant funds must
meet. These funds are restricted to costs directly
related to providing services to victims of crime
and may contribute to an administrator's salary. 

o State-level victim/witness assistance funds. 

o Local drug-related asset forfeiture programs. 

o Cooperative work with the FBI, local U.S.
attorney, or Drug Enforcement Administration (DEA).

o Borrowed equipment from the U.S. Marshals
Service, the FBI, or the military. 

o Cooperative arrangements with a consortium of
local agencies to share the cost of providing
witness protection (such as prosecutor's office,
sheriff's office, corrections, and police and
housing departments). 

Literature 

Witness Security 

Connick, E., and R. Davis. "Examining the Problem
of Witness Intimidation." Judicature, 66 (1983): 
439-447. 

Finn, P. "Collaboration Between the Judiciary and
Victim- Witness Assistance Program." Judicature, 69
(1986): 192-198. 

Finn, P., and M.H. O'Brien. Using Civil Remedies: 
Rationale, Case Studies, and Constitutional Issues,
Issues and Practices. Washington, D.C.: U.S.
Department of Justice, National Institute of
Justice, October 1994. 

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. 

Henderson, J.D. Protective Custody Management in
Adult Correctional Facilities. Washington, D.C.:
U.S. Department of Justice, National Institute of 
Corrections, 1991. 

Gangs 

Conly, C.H., P. Kelly, P. Mahanna, and L. Warner.
Street Gangs: Current Knowledge and Strategies.
Issues and Practices. Washington, D.C.: U.S.
Department of Justice, National Institute of
Justice, August 1993. 

Curry, G.D., and S.H. Decker. "The Impact of Gang 
Membership on Participation in Crime and
Delinquency: A Review of the Literature"; Curry,
G.D. "Responding to Gang-Related Crime and
Delinquency: A Review of the Literature"; and
Decker, S.H. "Gangs, Gang Members, and Drug Sales."
Papers presented to the National Institute of
Justice Workshop on Gangs, August 6, 1995, and
available from the authors at the Department of
Criminology and Criminal Justice, University of
Missouri at St. Louis. 

Johnson, C., B. Webster, and E. Connors.
Prosecuting Gangs: A National Assessment. Research
in Brief. Washington, D.C.: U.S. Department of
Justice, National Institute of Justice, February 1995. 

Maxson, C. Street Gangs and Drug Sales in Two
Suburban Cities. Research in Brief. Washington,
D.C.: U.S. Department of Justice, National
Institute of Justice, September 1995. 

Individuals 

The list and matrix below identify individuals--
either members of the project advisory board or
individuals who were interviewed in the preparation
of this report -- who have agreed to respond to
telephone calls for technical assistance with
witness security. 

The following people may be contacted for
information about both program evaluation and
gangs: 

G. David Curry 
Criminology and Criminal Justice Department
University of Missouri at St. Louis 
598 Lucas Hall 8001 Natural Bridge Road 
St. Louis, MO 63121 
(314) 516-5038 
(314) 516-5048 (fax) 

Cheryl Maxson 
Social Science Research Institute 
University of Southern California 
University Park, MC-0375 
Los Angeles, CA 90089 
(213) 740-4285 
(213) 740-8077 (fax) 

Scott Decker 
Criminology and Criminal Justice Department
University of Missouri at St. Louis 
598 Lucas Hall 
8001 Natural Bridge Road 
St. Louis, MO 63121 
(314) 516-5038 
(314) 516-5048 (fax) 

Carl S. Taylor 
Department of Family and Child Ecology 
Director of Community Youth Development Programs
Institute for Children, Youth, and Families
Michigan State University 
27 Kellogg Center 
East Lansing, MI 48824 
(517) 353-6617 
(517) 432-2022 (fax) 

John Hagedorn 
Urban Research Center 
University of Wisconsin at Milwaukee 
Physics Building, #450 
Milwaukee, WI 53201 
(414) 229-5332 

Kenneth Trump 
Assistant Director of Tri-City Task Force 
Director of Safety and Security 
Parma City Schools 
6726 Ridge Road 
Parma, OH 44129 
(216) 885-2495 
(216) 885-2497 (fax) 

------------------------------

APPENDIX A 

SAMPLE PROGRAM GUIDELINES 

------------------------------

Appendix A1 

Intimidation Interview Guide 

Philadelphia District Attorney's Office Victim 
Services Division 

Recommendations for Victim Service Agencies on the
Handling of Complaints of Threats, Intimidation,
and Harassment 

1. WHO is the intimidator? 

a. defendant; 
b. defendant's family member; 
c. defendant's friend or sympathizer; 
d. defense attorney. 

Inquiries: Is the victim or witness acquainted with
the intimidator? Is the victim or witness able to
identify the perpetrator? 

2. What is the type of intimidating conduct? 

a. actual force or physical violence; 
b. threats of force or physical violence; 
c. acts of coercion towards victim/witness or third
party's veiled threats; 
d. acts of harassment, e.g., telephone
communications, written correspondence, loitering
with no legitimate purpose); 
e. offers of money or other pecuniary benefits to
persuade victim/witness to withdraw charges. 

3. WHEN did the act of intimidation occur? 

a. pre-preliminary hearing; 
b. pretrial; 
c. during trial; 
d. post-trial; 
e. presentence; 
f. post-sentence. 

4. WHERE did the act of intimidation occur? 

a. in or near courtroom? 
-- bring to the attention of trial judge; 
-- insist on revocation of bail or a substantial 
increase; 
-- place facts of intimidation on record; 
-- move that perpetrator be held in contempt. 
b. elsewhere? where? 

5. OTHER important questions. 
a. Is there an open case in the system? 
b. If so, what is defendant's name and case number,
and where is the case listed? 
c. Is the victim or witness acquainted with the 
intimidator? 
d. Is the victim or witness able to identify the 
perpetrator?

------------------------------

Appendix A2 
California Victim/Witness 
Assistance Program 

Program Guidelines 
July 1, 1994 through June 30, 1995 
Witness Protection 

Arranging for law enforcement protection when a
witness' safety is threatened. 

A maximum of one (1) percent of the total grant
award may be allocated for witness protection,
unless otherwise approved by OCJP. 

Witness Protection Services 

California Penal Code Section 13835.5 authorizes
victim/witness assistance centers, funded with
grant funds administered by the Office of Criminal
Justice Planning (OCJP), to budget a portion of the
project's funds for witness protection. Witness
protection is an optional service which may be
provided only when the effective provision of the
statutorily mandated services listed in PC 13835.5
are not precluded. Witnesses may not be denied
witness protection services based solely on the
type of criminal activity (crime type) that made
the testimony of the witness necessary. 

The purpose of witness protection services in
victim/witness assistance centers is to reduce the
emotional, and potential physical, trauma when a
threat is demonstrated. The benefits to law
enforcement and the prosecution, while desirable,
are secondary and, as such, should never be the
determining factor in rendering witness protection
services. In screening potential witness protection
clients the project must give the priority
consideration based on the needs of the client and
the degree of risk. Actual victims of violent crime
who are witnesses and witnesses at extreme risk,
such as a witness of a gang homicide, should be
given priority consideration. 

Projects may budget up to one (1) percent of the
total grant award amount to provide witness
protection services. If more than one (1) percent
of the grant award is requested for witness
protection, the amount must be approved by OCJP
and extensive written justification is required which
must address: 

1. the impact of additional witness protection
funds being diverted from delivering mandated
services; 

2. data (type of crime requiring witness
protection, number of witnesses protected in the
previous grant period, cost of protection per
witness, the number and percentage of actual crime
victims receiving witness protection services,
etc.) supporting the need for additional witness
protection funding; and, 

3. the anticipated impact on witnesses if funding
above the one (1) percent level is not authorized. 

Witness Protection Requirements 

The person (project coordinator) designated by the
project director to have day-to-day oversight of
the victim/witness assistance project must oversee
the administration of the disbursement of witness
protection funds. However, projects may assign the
actual disbursement responsibilities to other
personnel within the implementing agency if the
following procedures are enforced: 

1. A quarterly report of expenditures must be
submitted to both the project coordinator and
project director for each quarter of the grant
year. The report must include the following
information for each witness protected: 

a. the name of witnesses protected during the
quarter (the court case number may be used if the
case number can be reconciled, by OCJP during an
audit, with a specific witness in the confidential
witness protection files). 

b. the type of crime. 

c. the reason the protection was required. 

d. the amount expended. 

e. state whether the witness protected was the
actual victim; and 

2. The project must report all information required
for the witness protection services in the OCJP
Progress Report. All expenditure reports will be
reviewed and verified by OCJP staff during site and
monitoring visits. 

o Projects must maintain documentation for all
expended funds (receipts, vouchers, invoices,
etc.). All documentation must include the date of
the expenditure, the name of the witness receiving
protection, the case number, the purpose and reason
for the expenditure, and the business location of
the expenditure. The project records must also
indicate if the person receiving witness protection
services is the actual crime victim. 

o The chief executive officer and his/her designee
have the authority to approve and make payment of
witness protection funds. 

o Projects must establish and maintain separate
accounts and record keeping systems for OCJP
witness protection funds and all other
victim/witness assistance funds. 

Witness Protection Accountability Procedures 

The nature of witness protection funds require that
they be accessible. It is also necessary that
safeguards and accountability of the funds be
maintained. For effective management and audit
purposes, the following procedures must be
followed: 

o This fund may only be used in the absence of
another witness protection funding source; 

o Cash allotments to witnesses or law enforcement
are not allowable without documentation of an
allowable expense; 

o The witness protection fund and the regular grant
allocation must be kept separate, each with its own
account within the general ledger. 

o Vouchers, receipts, cancelled checks and/or bank
statements must be maintained for audit purposes; 

o Authority to make payments from witness
protection fund rests with the chief executive of
the agency. Authority to draw on the witness
protection funds may be delegated by the chief
executive. The project must identify the designated
personnel by name and position. Each check requires
a counter signature. The project is required to
give OCJP written notification, within ten (10)
working days, of any changes in personnel
authorized to approve and make payments; 

o Grant funds must not be commingled with other
funds; 

o As checks are drawn against the fund, a copy of
the checks must be sent to the person designated as
the project's fiscal officer; 

Witness Protection Eligibility Requirements 

The following parties are eligible for witness
protection assistance: 

o Witnesses or their families who have received
documented threats or have been assaulted as a
direct result of their participation as a witness. 

o The project must document information that
indicates the witness or the witness's immediate
family are in present danger. 

Additionally, the following must occur: 

o The witness must be a willing participant in
providing testimony in a criminal or juvenile court
case. 

o The witness must have testified or must be called
upon to testify in a case where criminal charges
have been filed. 

Witness Protection Non-allowable Use of Funds 

Witness protection funds from the Victim/Witness
Assistance Center Program may not be utilized for
the following: 

o To pay cash allotments to witnesses or law
enforcement; 

o To pay for expenses, goods or services for
incarcerated witnesses; 

o To pay informants for testimony, reimburse
informants for expenses, or to purchase goods or
services for informants; 

o To pay or reimburse costs associated with expert
witness testimony; 

o To reimburse or support any costs associated with
protecting witnesses who were active or passive
participants in the criminal act which made the
witnesses' testimony necessary; 

o To pay or reimburse witnesses for public or
private transportation not related to relocating
the witness for protective reasons; 

o To pay or reimburse expenses associated with
providing security, police escorts, or policy
vehicles, 

o To pay or reimburse medical or dental expenses
(including medication) for the witness or family
member. 

o To pay or reimburse long-distance telephone
bills; 

o To pay or reimburse non-essential items such as
alcoholic beverages, tobacco, pet supplies, candy,
cosmetics, books/magazines, clothing/shoes,
furniture, real or personnel property, etc.; 

o To pay for non-essential relocation cost such as
cable television services. 

Witness Protection Allowable Costs 

Victim/witness assistance funds may be utilized for
the following activities associated with witness
protection services: 

o Victim/witness assistance funds may be used to
reimburse witnesses and/or law enforcement agencies
for documented expenses related to the provision of
temporary lodging of witnesses and their families.
All temporary lodging must be expressly for the
protection of witnesses and their families during
the court process. Please see Appendix form section
for maximum rates allowed by OCJP. 

o Victim/witness funds may be used to reimburse
witnesses or law enforcement for documented
expenses related to providing meals to witnesses
while under protection during the court process.
Please see Appendix in the forms section for
maximum rates allowed by OCJP. 

o Victim/witness assistance funds may be used to
reimbursement witness or law enforcement for
documented costs related to relocating witnesses,
their families and their belongings due to a
documented threat to their personal well-being.
Documentation of the threat may be justified by a
crime report in which law enforcement supports
there is a threat and/or the project records in
which project staff determine and document there is
a justifiable threat. Projects must maintain
documentation that no relocating expenditures
exceed the prevailing local cost for such
expenditure and that the expenditures is related to
witness protection. 

The costs of temporary lodging and meals for the
purpose of witness protection may be reimbursed for
a duration of 21 calendar days per witness
(including the family of the witness). The twenty-
one (21) calendar days are cumulative. All
witnesses and/or families of witnesses requesting
more than a total of twenty-one days of witness
protection funds must have prior written
authorization of OCJP. The project must submit a
written request to OCJP for additional witness
protection funds on a case by case basis prior to
the expiration of the initial twenty-one days of
OCJP funded witness protection. The request must
include the reason for extended funding, the amount
of additional funds needed and the additional
amount of time that witness protection services
will be required. Witness protection services may
not extend beyond the time required to protect the
witness and/or the family of the witness during the
court process. 

Failure to maintain documentation of all
expenditures may lead to questions and/or
disallowed costs. All expenditures are subject to
review and approval by OCJP. All records must be
maintained consistently with the requirements of
OCJP Grantee Handbook. 

------------------------------

Appendix A3 

Baltimore City Witness Protection Program 

I. Purpose 

To create a formal Witness Security Program to
provide security and protection of witnesses in
Circuit Court felony matters who have been
threatened, intimidated or harassed because they
have information which is vital to the State's
case; to create a formal network with protocols and
Memoranda of Understanding between the State's
Attorney's Office and law enforcement and other
agencies which set forth each agency's
responsibility under the program; to establish
policy and procedures for the expenditure and/or
reimbursement of funds specially provided for
witness security; and to improve witness
cooperation in violent crime matters. 

II. Agencies Involved 

A. State's Attorney's Office - The Office of the
State's Attorney will be the operating agency for
the Witness Security Program. 

1. The criteria for inclusion of witnesses in the
program will be developed and approved by the
State's Attorney's Office, but each case will be
evaluated on a case by case basis.

2. A team approach will be utilized to determine if
the witness is in need of security and the level of
security (in consultation with law enforcement
agencies involved). The Team, at a minimum, will
consist of the Division Chief of the unit involved,
the Chief of Community Services/Victim Witness Unit
and the Deputy State's Attorney for Administration.
Other individuals who may routinely participate in
team reviews will be the Chiefs of the following
units: Narcotics, Violent Crimes and Trial;
depending upon their availability. Others may be
asked from time to time to present any information
which they may have which influences or bears upon
the security of the witness. [All of this information,
if possible, should be obtained from the witness,
Assistant State's Attorney assigned to the case and
any law enforcement officer assigned to the matter
or having information directly relating to the matter].
The Witness Security Coordinator will always
participate and coordinate efforts of all persons listed
above.

3. The initiation of the Request for Security
should be by the Assistant State's Attorney through
the Division Chief. Any attorney who is aware that
a security issue exists with a witness in a matter
pending before the Courts or being investigated by
any law enforcement agency in this jurisdiction,
should, with the advice of their Division Chief,
complete a REQUEST For Security Form.

4. Team determinations should be made within 12
hours. In situations where a determination cannot
be made within 12 hours but the Division Chief
feels that the witness's security is at immediate
risk, he/she can and should make a temporary
determination with approval of the Deputy State's
Attorney designee and notification to Chief of
Community Services/Victim Witness. Temporary
security measures based upon the Division Chief's
findings will last a maximum of 72 hours. A Team
review should take place as soon as possible to
determine another short term or long range solution
to the security problem.

5. The State's Attorney's Office will provide one
individual who will be down as the "Witness
Security Coordinator." This individual should have
a law enforcement background and shall be
responsible for the following:

a. Securing housing and transportation for
witnesses in need of security.

b. Coordinating all Witness Security activities
with the agencies involved.

c. Helping to locate witnesses in major felony
cases when requested by the units to do so.

d. Securing all expense and reimbursement requests
for proper filing with the funding source. (Does
this in conjunction with the Fiscal Administrator).

B. Sheriff's Office - The Sheriff's Office will be
the chief law enforcement agency utilized for
witness Security services. Services provided may
range from 100% 24 hour security to something less
depending upon the security needs of the witness.
The level of security should be outlined as to the
number of deputies, where services are to be
provided and the number of hours services are to be
utilized. The degree of security should be
determined after consultation with the Sheriff's
representative, law enforcement agency and State's
Attorney team. The following will be needed from
the Sheriff's Office: 

1. Training - The Sheriff's Office will provide a
minimum of eight deputies, with an equal
distribution as to sex, to be specially trained to
provide witness security when the need arises.
Specialized training of Deputies in "executive
protection" should be approved in consultation with
the State's Attorney's Office.

2. Protocol - The State's Attorney's Office and
Sheriff's Office shall develop a formal protocol
and/or memorandum of understanding to be followed
by the agencies in a witness security situation.
This protocol shall designate the individual within
the Sheriff's Office who will begin implementation
from the Sheriff's end.

3. Expenses - 

a. The Sheriff's Office will be responsible for the
training of these deputies. All of their salaries
and related expenses while assigned to witness
protection duties, however, will be reimbursed to
the Sheriff's Office by the State's Attorney's
Office. Initial funds for the purchase of equipment
(guns, vests, etc.) and supplies to be used by
Deputies in witness security will be paid for out
of witness security funds. 

b. The Sheriff's Office shall provide the salary
schedules of all trained officers and submit a time
sheet outlining the hours during which the deputy
provided witness security services along with
receipts and/or itemization of all other expenses
incurred. Once submitted, the Sheriff's Office will
be reimbursed through normal City procedures (forms
may or may not be developed for these purposes). 

4. The Sheriff's Office will provide summaries and
reports during the security period as requested by
the State's Attorney's Office. 

C. The Police Department - The Police Department
will continue to provide witness related services
which they now provide. They will provide witness
security services over and above their normal
responsibilities only in "special circumstances".
These "special circumstances" will be determined by
the State's Attorney's Office Team. When it is
determined that the Police Department will provide
witness security due to "special circumstances",
the following will be the Department's
responsibilities. 

1. Protocol - The State's Attorney's Office and the
Police Department will develop a special protocol
and/or memorandum of understanding for the handling
of these cases. When it is determined that "special
circumstances" exist and the Police Department will
provide witness security, the protocol will be
activated.

a. A named individual within the department will be
responsible for implementation. 

b. All matters will be coordinated by this
individual and the Witness Security Coordinator. 

2. Expenses - All expenses incurred for Witness
Security by the Department over and above the
normal/regularly scheduled duties of a Police
Department officer will be reimbursed from the
State's Attorney's Witness Security Fund.

The department shall submit a reimbursement request
which shows the regular "on duty hours" of the
officer and the "off duty hours" during which the
officer provided witness security along with the
annual salaries of the officer involved. Receipts
for all other expenses should also be attached.
Reimbursement will be through normal City channels.

3. Reports - Witness security reports should be
filed with the witness coordinator as determined to
be necessary by the State's Attorney's Office Team.
A "form" to be completed by the protecting officers
should be provided by the State's Attorney's
Office. Any special requirements of the witness
should also be indicated thereon, i.e., medical
notations, etc. 

D. The Department of Corrections - The Department
of Corrections houses inmates in the Detention
Center (jail) as well as all other correctional
facilities (prisons) within the State. On occasion,
an inmate at the Detention Center or DOC will need
additional security due to his witness status.
Should it be determined by the Team that a
Detention Center or DOC inmate is in need of
additional security, the following will take place:

1. Protocol - The DOC and State's Attorney's Office
will develop a protocol to be utilized in the event
a DOC or Detention Center (jail) inmate needs
special security. This protocol will name an
individual within DOC and/or jail who will
implement the program within the agency.

2. This individual and the Witness Security
Coordinator in the State's Attorney's Office shall
implement a program of security within the DOC
facility which meets all agencies' guidelines for
maximum security of the witness. Any special needs
or requests by the State's Attorney's Office in
reference to this witness should be provided by the
State's Attorney's Office to the DOC.

3. Expenses - Unless the services provided are so
extraordinary, no reimbursement of expenses will be
made by the State's Attorney's Office to the DOC
for additional witness security.

4. Any "extraordinary" services must be approved
beforehand by the State's Attorney's Office Team if
they are to be provided and if reimbursement is to
be requested. This does not include services which
the DOC consider emergency. The DOC should act in
emergency situations to protect the witness.

5. Any problems experienced by the DOC in reference
to the witness being protected should be
immediately communicated by the DOC representative
to the State's Attorney's Office Witness Security
Coordinator. 

E. Housing - The Department of Housing and
Community Development (HCD) and the Housing
Authority operate public housing facilities and
City owned housing units. Many citizens in need of
security are occupants of public housing and/or
qualify for public housing in one capacity or
another. 

Currently, HCD and the Housing Authority work with
the Community Services Division of the State's
Attorney's Office to transfer witnesses in need of
security from one housing facility to another. The
Witness Security Program has formalized these
arrangements with the development of a special
protocol and/or memorandum of understanding to
handle these cases. 

The Housing Authority will provide support services
for the witness in need of security who meets HUD
guidelines as follows: 

1. Transfer witnesses from one housing unit upon
request to another housing unit across town or
across the State, if needed; and

2. Secure the expedited placement of witnesses who
meet eligibility requirements into public housing;
and

3. Train the witness protection coordinator on the
eligibility requirements for housing. The
determination being made prior to the referral will
expedite the process; and

4. Provide, if needed, the assistance needed to
secure housing outside the city limits. 

F. Department of Social Services - the Local
Department of Social Services will provide
expedited assistance to the witness security
program for those witnesses meeting DSS eligibility
requirements as follows: 

1. Temporary shelter when not provided by Witness
Security Program. This option may be utilized when
there is a low-security risk.

2. Upon referral, complete the application process
to secure general public assistance, medical
assistance, and food.

3. Train Witness Security Program staff on the
eligibility requirements and application process
for public assistance.

4. Maintain client's information in a confidential
manner. 

5. Provide a designated staff member to assist
Witness Security Program staff with all of the
above. 

III. Witness Location 

Where possible, witness location will be handled as
it has been in the past with the following
exceptions: 

A. Police Department, other law enforcement
agencies, detectives or officers assigned to a case
shall to the extent possible utilize everything at
their disposal to locate witnesses in every
criminal matter. 

B. If a witness has been initially located by law
enforcement, but fails to show up for trial, the
State's Attorney's Office unit investigators should
attempt to locate the witness by utilizing
everything at their disposal. 

C. If the witness cannot be located through
conventional means, the Witness Security
Coordinator and occasionally the Sheriff's Office
may be requested to assist with this endeavor. If
the matter is a felony and the witness's testimony
is vital to the State's case, the Witness Security
Coordinator will utilize every available resource
at his/her disposal to locate the witness even if
the witness is not a witness in need of security. 

IV. Transportation 

Witness transportation will be provided as follows:

A. Moving - Relocation - If the witness is to be
relocated whether, in the City, outside the City or
outside the State on a permanent basis and cannot
afford to pay for relocation, the State's
Attorney's Office Witness Security Program shall
bear the costs of relocation. The Witness Security
Coordinator should handle the arrangements with the
assistance of the Fiscal Officer. 

B. If the witness is to be relocated temporarily,
the travel arrangements of the witness and any
necessary family members should be handled by the
State's Attorney's Office. Moving and/or storage
expenses may need to be approved pending permanent
arrangements. Whatever expenses are approved,
however, will be paid for by the State's Attorney's
Office if the witness is financially unable to
cover them. 

C. To and From Court - Transportation to and from
Court or for interviews by the State will be
provided in cases of 100% security. In all other
matters, the State's Attorney's Office Team will
determine if it is needed, and if so, to what extent. 

V. Reward/Award-Witness Fee. 

A. No witness fee will be provided by the State's
Attorney's Office for a witness's testimony under
this program. Any expert witness who testifies in a
matter which has a witness under security will be
paid for out of expert witness fees and not witness
security. 

B. No award or reward for information leading to
the arrest and conviction of a defendant will be
offered under this program unless all avenues to
secure witnesses and information have failed. If it
is determined by the State's Attorney's Office Team
that circumstances exist which warrant a reward, a
determination of how much should be offered will be
made and that amount hopefully can be added to an
existing program. This determination of an award
will be made only if extreme circumstances exist,
but no one has come forward and the perpetrator has
not been identified. 

VI. Costs 

A. Salaries/OPCs 

1. Witness Protection Coordinator - this individual
will be hired at the "investigator" level in the
State Attorney's Office.

2. Sheriff's Deputies - State's Attorney's Office
will pay for all hours in which a Sheriff's deputy
provides witness protection. Reimbursement will be
based on annual salary.

3. Police Department - O/T only when specially
requested.

4. Salary and Over Time of other officers of law
enforcement agencies may be paid in extraordinary
circumstances when approved beforehand by the
State's Attorney's Office Team. 

B. Housing 

1. Hotel - temporary witness accommodations.

2. Apartment, house, etc. - more long term witness
accommodations.

3. Other housing related allowance. 

C. Transportation 

1. To and from out of town location (air, bus,
train, car mileage, etc.)

2. To and from courthouse for trial, interviews,
hearings, etc. (cab, bus, subway, tokens, etc.)

3. Mileage reimbursement to law enforce agency 
providing transportation from and to whatever 
location - (would like to see agencies absorb this
cost). 

D. In Courthouse Security Facility 

1. Renovation

2. Maintenance

3. Furnishings, equipment and supplies. 

E. Other Expenses 

1. Moving

2. Storage

3. Per diem - food, etc. 

4. Utilities for private apartment or home if
needed (telephone, gas and electric, city water,
sewage, etc.)

5. Equipment for Sheriff's Deputies (guns, vests,
etc.)

6. Miscellaneous - expenditure for special needs
witnesses. Reimbursement will be made with
receipts, if prior authorization acquired. 

VII. Witness Responsibilities 

The program is only as effective as the witness
allows it to be. 

A. Participation - All witnesses who are in need of
security (as determined by the State's Attorney's
Office Team) will be offered participation in the
program. Witnesses must be willing to participate. 

B. Guidelines - All witnesses who wish to
participate in the program must sign an
acknowledgment that they were given a copy of the
guidelines which state their responsibilities under
the program. These guidelines will be prepared by
the State's Attorney's Office in conjunction with
the protecting agency. 

C. Financial - All witness who participate in the
program and are able to contribute to their
expenses will be asked to do so to the extent of
their financial abilities. 

D. Any witness who violates the terms and
conditions of the program may bring danger to
themselves or others. As a result may be denied
further assistance through the program. 

------------------------------

Appendix A4 
Los Angeles District Attorney's Office: Victim
Witness Assistance Program Witness Protection Fund 

A. Program Objectives 

1. The overall goal of the Witness Protection
Program is to expand the capability of local law
enforcement to successfully prosecute criminals on
trial through the protection of witnesses and their
families.

2. The program will enable the District Attorney's
Office to make funds available to local law
enforcement and prosecution agencies in Los Angeles
County for this purpose in an expeditious manner. 

B. Policies and Procedures 

1. The Witness Protection Program is intended to
assist local agencies and prosecutors who do not
have other resources available to protect
witnesses. When such assistance is needed, this
program will make possible a rapid response.

2. Under the direction of the Chief Deputy District
Attorney of the Los Angeles County District
Attorney's Office, the Bureau of Investigation will
administer the Witness Protection Program. The
policies and procedures for disbursement of project
funds to requesting agencies are denoted in the
following paragraphs. 

C. Policies 

1. The following criteria must be met in order to
obtain approval of funding for the relocation of
the witness and/or the family of the witness.

a. Witness or witness' family has been threatened,
or

b. An actual threat to the safety of witness or
witness' family exists, and

c. Criminal charges have been filed against a
defendant, and

d. This witness will be called or has been called
to testify against the defendant. 

2. Only law enforcement agencies and prosecutors
and their investigators are eligible for assistance
under the provisions of the Witness Protection
Program. 

3. When a case is under the -jurisdiction of the
Superior Court, a Count Order approving the
expenditure of funds for the subject relocation,
may be required. 

4. Request for funding will be reviewed as long as
funds are available. 

5. Reports or other records, which document the
subject threat or witness intimidation, must be
submitted with the relocation requests. 

6. Assisted agencies will be required to formally
account for funds expended for witness protection
in the form of a letter accompanied by original
vouchers or receipts which will substantiate
expenditures. Every effort should be made to ensure
the receipts are legitimate and correctly reflect
the approved expenses. 

7. Except in unusual circumstances, requests for
witness relocations must be processed by the
investigating officer from the law enforcement
agency which requested the filing of the case. This
should be done as soon as possible after the
threatening situation develops. 

8. The witness protection funds are limited to
endangered witnesses only and cannot be used for
indigent witnesses. 

9. All requests for witness relocations must be
approved in advance and no promises or commitments
should be made to witnesses prior to approval. 

10. Only those expenses articulated in the agreement,
in the amounts approved, are reimbursable. Any
other additions, modifications or changes must be
approved in advance (see attachment #2). 

11. The final decision as to whether the request
for a witness relocation is necessary or
appropriate lies with the Program Director or his
designee. 

12. Any exceptions to the stated policies and/or
procedures, as set forth in this guide, will be at
the discretion and authority of the Program
Director or his designee. 

D. Procedures 

The procedures detailed below are intended to
assist law enforcement agencies and prosecutors in
applying for assistance under provisions of the
Witness Protection Program. In applying these
procedures, law enforcement agencies and
prosecutors should keep in mind the policies of the
Witness Protection Program and requirements of the
State of California. 

1. Absent emergency situations, payments to
agencies requesting assistance will only be on a
reimbursable basis.

2. Reimbursements will be only for monies expended
for costs related to witness' relocation, and any
other essential expenses determined to be
appropriate and related to the security of the
witness and/or witness' family.

3. Requesting agencies must substantiate
expenditures with original receipts.

4. Receipts must be those issued in the normal
course of business and contain sufficient
information to allow for identification of approved
expense, including date, place (address), nature of
expense, and person issuing receipt, if appropriate.

5. It shall be the Investigating Officer's
responsibility to make a reasonable effort to
confirm that the witness did in fact relocate to a
specified location and paid the agreed move-in
costs, in addition to securing the required
receipts.

E. Methodology 

1. The process of obtaining assistance under the
witness protection program commences with the
submission of an Assistance Request Form
(attachment 1) in person. The requests are to be
submitted to the Program Director or one of his
designees.

2. Unless other arrangements have been made, all
requests must be made in person and all elements
shown in attachment 1 must be answered. In all
cases, the requests must be sufficiently detailed
and informative in order for a decision to be made.
Insufficient details will result in delays in the
processing of requests.

3. Requests for assistance will be reviewed
promptly and on a "first-come, first-served" basis.
The review will be conducted to insure that the
requesting agencies have provided sufficient detail
to allow for approving action to be taken and that
witnesses meet the program's conditions.

4. Following review, requesting agencies will be
notified immediately as to whether their requests
have been approved or disapproved. 

F. Reimbursements Allowed 

Agencies, whose requests for assistance are
approved, will be reimbursed for costs related to
the relocation, as per the agreement, for the
protected witnesses and their families. Any change
or modification to the original agreement must be
approved in advance by the Program Director or his
designee. 

1. Relocation Costs (Food. Transportation, and
Related Costs)

a. Other potential costs associated with an
emergency witness relocation (i.e., food,
transportation/travel expenses, emergency lodging,
moving expenses, etc.) must be justified and
approved separately. 

b. Individual receipts for food may be waived in
lieu of the officer obtaining a receipt from the
witness for the approved amount of cash given
directly to the witness exclusively for food as per
the agreement. 

c. Reimbursements for transportation will be
limited to travel from the jurisdiction in which
the witnesses are located to the secure areas where
they are being safeguarded and their return
trip(s). 

d. With prior approval, agencies may be reimbursed
for the rental of trailers and vans required for
permanent relocation and movement of household
goods. 

e. ONLY THOSE EXPENDITURES SUBSTANTIATED
BY ORIGINAL RECEIPTS WILL BE REIMBURSED. 

G. Reimbursement Procedures 

1. Agencies may be reimbursed on a one-time full
payment or in partial payments. Partial payments
are authorized to assist agencies whose budgets do
not allow for prolonged outputs of funds in
protecting witnesses. In either case, one-time
payment or partial payments, the same procedures
shown below apply in requesting payment.

2. Agencies requesting payment should prepare
letter(s) under the agencies' letterhead containing
the elements shown in Attachment 3 (Request for
Payment Letter). The letter(s) should be signed by
the agency head or a ranking officer.

3. Reimbursement requests submitted in person will
be reviewed within 24 hours and payment will be
made shortly thereafter.

4. Payment of claims for reimbursement submitted by
requesting agencies will be authorized by the
Program Director (or a person acting in his behalf).
All materials will be reviewed for accuracy and
propriety of expenditure and as to form. 

H. Project Personnel 

Program Director: Robert L. Hilleary 
Assistant Chief, Bureau of Investigation 
Los Angeles County District Attorney's Office 
210 West Temple Street, Room 17-1103 
Los Angeles, California 90012 
(213) 974-3603

Program Manager: John Paccione 
Fiscal Officer II 
Bureau of Management and Budget 
Los Angeles County District Attorney's Office 
320 West Temple Street, Room 540 
Los Angeles, California 90012 
(213) 974-3521 

------------------------------

Appendix A5 

Policy for Handling Complaints of Victim/Witness
Intimidation 

Philadelphia District Attorney's Office 

POLICY FOR HANDLING VICTIM/WITNESS
COMPLAINTS OF HARASSMENT, INTIMIDATION
AND/OR THREATS ON OPEN CASES IN THE
TRIAL DIVISION 

Starting immediately, all Complaints of harassment,
intimidation and/or threats will be directed to the
Witness Security Coordinator, Marcia Thomas, at
686-8023. 

Upon referral of complaints, the following steps
will be taken: 

1. All complaints will be taken seriously until
further investigation.

2. The working file will be located and any
statements taken from the witness copied for the
file. Whether or not an arrest is warranted, the
complaint will be available to the assigned A.D.A.
by a statement or memo to the file.

3. If following the initial interview (using the
new victim contact sheet attached), a statement is
deemed necessary, the Witness Security Coordinator
will:

a. at pre-preliminary stage, make an appointment
for the complainant with the investigating police
detective. The detective will be supplied with a
copy of the statement and any background
information (i.e., priors, probation status, etc.
of the accused); 

b. if the case has been held for court, the Witness
Security Coordinator will make an appointment with
D.A. Detectives (immediately, if possible) to have
a statement taken, again supplying all background
information on the accused, the-case file and a
list of possible questions to be asked based on
information received during the initial interview; 

4. The Witness Security Coordinator will present
all information to the appropriate Unit Chief for
immediate approval or disapproval.

5. Following approval by the Unit Chief, the
Witness Security Coordinator will present the
information to the Deputy of Trials for approval of
charges and a warrant placed against the accused. 

6. The Witness Security Coordinator will then
present the approved order for a warrant and all
information to the D.A. Detectives for immediate
initiation of arrest warrant procedures.

7. If it is determined that an arrest is unwarranted
and a determination that a Private Criminal
Complaint is the correct step, the Witness Security
Coordinator will prepare a Private Criminal
Complaint immediately for approval by the Deputy
and the complainant can proceed directly to
34 S. Street, Room 480, with a payment of the
$16.00 for the court clerk and a court date assigned
forthwith. A copy of the private criminal complaint
will be forwarded to the Private Criminal Complaint Unit.

8. If at any stage of the proceedings the Probation
Department should be alerted, it will be done.

9. A memo and/or copy of the statement will be
placed in the working file to alert the assigned
A.D.A. to all problems. 

10.A log of all complaints and dispositions will be
kept in a complaint log book cross filed under both
the complainant's and accused's names (new
procedure). 

------------------------------

NOTE: Appendixes B1 through B5 are not
available in this ASCII file.

------------------------------

Appendix B6 

Helping Communities With Nuisance Abatement Suits 

A MESSAGE FROM THE STATE'S ATTORNEY 

This brochure has been prepared to inform citizens
on the use of the Drug Nuisance Abatement Law. We
see the use of this law as another tool for
neighborhoods in the "neighborhood reclamation"
effort. 

Drug users, sellers and buyers create nuisances in
our neighborhoods. Their activities disrupt the
quality of life that we've established for our
families and often destroy the sense of community
that ties neighbors to neighbors. 

With the help of a grant from the Governor's Drug
and Alcohol Abuse Commission, we have established
the Community Anti-Drug Project to help the
citizens of Baltimore rid their neighborhoods of
the nuisances that are brought on by drug activity.
We will be assisting neighborhood organizations
throughout the city with learning the necessary
skills to use the Drug Nuisance Abatement Law. 

All of us have been affected by the drug activity
that has marred many of Baltimore's neighborhoods.
It is our hope that the Community Anti-Drug Project
will be a valuable tool in the continuing effort to
rid our neighborhoods of drugs and drug activities.

Stuart O. Simms 
State's Attorney 
for Baltimore City 

------------------------------

YOUR NEIGHBORHOOD 

The Law: 

The Drug Nuisance Abatement Law says that a
privately owned property that is being used for
drug activity is a nuisance. 

o a building where people deal drugs 

o a building where drugs are stored in large
quantities, or 

o a building where people gather to take drugs. 

Who Can Sue? 

A drug nuisance suit can be brought by: 

o a non-profit community association 

o the State's Attorney's Office, or 

o the City Solicitor's Office 

Who Can Be Sued? 

The law allows a suit against either: 

o OWNER of the property 

o TENANTS who are using the property for drug
dealing, or 

o BOTH

What Does The Law Allow Us To Do? 

In a drug nuisance suit, the court has the power
to: 

o order the owner to submit a plan of correction to
ensure that the drug dealing stops; 

o order a tenant to vacate the property within 72
hours, if the tenant knew about the drug activity; 

o order a tenant to cease any drug related activity
and evict the tenant if the tenant continues; 

o any other relief the court thinks necessary. 

How Do We File Suit? 

o Determine the ownership of properties; 

o Collect information submitted by community
associations; 

o Document related drug activity; 

o Notify landlord and/or tenant; and 

o Formalize a civil suit. 

RESPONSIBILITIES OF THE COMMUNITY
ORGANIZATION

o Organize community effort in your neighborhood; 

o Identify property where drugs are being stored,
used and/or sold; 

o Maintain and document a daily log of activity; 

o Report activity to your neighborhood
representative; and 

o Prepare for trial. 

PROJECT ASSISTANCE TO NEIGHBORHOODS 

Staff members of the Community Anti-Drug Project
can assist your neighborhood effort to rid drugs in
your community by: 

o Providing the necessary training; 

o Supplying technical assistance; 

o Furnishing legal support; 

o Supporting your neighborhood effort; and 

o Monitoring results. 

------------------------------

APPENDIX C 

SAMPLE LEGISLATION 

Appendix C1
Rhode Island

12-30-1 Criminal Procedure 

12-30-1. Statement of purpose. The effective
prosecution of persons involved in organized
criminal activity requires the development and use
of testimony obtained from witnesses who were
themselves involved in crime. The standards set
forth herein are intended (1) to encourage the
cooperation of potential witnesses with law
enforcement authorities, (2) to assure the safety
and security of those witnesses, (3) to provide
accountability in the cost and operation of the
witness program, and (4) to protect the community
from those with a history of criminal behavior.

History of Section.
P.L. 1990, ch. 331, section 1.

12-30-2. Agreement with witness. Whenever any law
enforcement official of the state of Rhode Island
or any city or town thereof determines that a
person who is either (1) incarcerated upon
conviction for a felony, (2) indicted or informed
against for a felony, or (3) the subject of a
felony investigation, is-willing to give evidence
regarding the commission of felony offenses within
the state in exchange for a reduction of his or her
sentence, and/or assistance in obtaining parole,
and/or the dismissal or reduction of charges
pending against him or her, and/or immunity from
prosecution said official shall notify the
department of attorney general forthwith. An
assistant attorney general and the law enforcement
official shall interview the prospective witness to
determine what information he or she possesses and
what consideration he or she is seeking for his or
her testimony. If they determine that the evidence
proffered is reliable and that the consideration
sought is reasonable, the assistant attorney
general shall prepare a written memorandum setting
forth all of the terms of the agreement which shall
be signed by the witness, a representative of the
law enforcement agency initiating the case, and
representative of the attorney general's office.
The terms of said agreement shall include the
length and manner of custodial supervision to be
provided in order to accomplish both the protection
and incarceration of the criminal witness. The
document shall explicitly state that the agreement
will become void if the criminal witness violates
the terms of his or her confinement, or fails to
provide the promised information and assistance to
the prosecution, or commits a new crime. The
prospective witness shall be afforded the right to
counsel during the negotiation and execution of
said agreement. The memorandum shall not become
binding and enforceable by the parties until
approved in accordance with the procedures set
forth in section 12-30-3.

History of section. 
P.L. 1990, ch. 331, section 1.

12-30-3. Witness protection review board. -- There
is hereby created within the department of attorney
general a witness protection review board
consisting of an assistant attorney general
appointed by the attorney general, an officer of
the state police appointed by the superintendent of
state police, and a municipal police chief
appointed by the president of the Rhode Island
police chiefs' association. No agreement which
obligates any law enforcement agency of the state
or its municipalities to provide protection for
and/or to release from custody or dismiss pending
charges against any criminal witness (person who is
incarcerated upon conviction for a felony or who is
indicted or informed against for a felony or who is
the subject of a felony investigation) in exchange
for his or her testimony shall take effect until it
has been approved by a majority vote of said review
board. The board shall review each such agreement
to determine whether (1) the evidence proffered
justifies the reduction of sentence and/or
dismissal of charges, (2) adequate provision has
been made to insure the safety of the witness and
his or her immediate family, if any, during the
times in which he or she will be cooperating with
law enforcement authorities and during his or her
resettlement thereafter, (3) the witness will serve
any sentence of confinement imposed upon him or her
for his or her crimes in a sufficiently restrictive
environment, (4) the cost of maintaining the
witness in the protection program is reasonable, 5)
the witness will pose any threat of future
criminality if released into the community pursuant
to the terms of the agreement. In determining
whether to approve the agreement, the board shall
consider whether the particular witness could be
better managed if responsibility for his or her
custody were transferred to the, witness protection
program, operated by the United States justice
department. The recommendation of the review board
shall be presented to the attorney general, whose
approval shall be required prior to implementation
of the agreement. Once approved by the review board
and the attorney general, any provision of the
agreement reducing the sentence of, transferring
the custody of, dismissing the charges against
and/or agreeing to immunize the witness must be
presented to the superior court for its approval in
accordance with applicable statutes and the rules
of said court.

History of Section.
P.L. 1990, ch. 331, section 1.

12-30-4. Non-criminal witnesses. Whenever any law
enforcement official of the state or any city or
town thereof determines that a prospective witness
who is not incarcerated, charged, or under
investigation for commission of a felony requires
custodial protection and/or assistance with
relocation due to a threat to the safety of that
witness or his or her family, said official shall
notify the department of attorney general
forthwith. An assistant attorney general and the
law enforcement official shall interview the
prospective witness to determine what information
he or she possesses and what level of protection is
required. If they determine that the evidence
proffered is reliable and that the protection is
necessary, the assistant attorney general shall
prepare a written memorandum setting forth a
summation of the information to be provided and the
nature and cost of the protection to be afforded.
Said memorandum shall be presented to the witness
protection review board for its review and approval
pursuant to section 12-30-3.

History of Section.
P.L. 1990, ch. 331, section 1.

12-30-5. Supervision of witness. Whenever the terms
of an agreement with a criminal witness provide for
him or her to serve a period of incarceration in
the state of Rhode Island, his or her confinement
shall be either at the adult correction institution
or at a facility maintained and supervised by the
state police. The court by order shall set forth
whether custody of the criminal witness shall be
maintained by the department of corrections or the
state police. If the place of confinement is other
than at the ACI, the witness shall be under guard
by law enforcement officials at all times. He or
she shall not be permitted to leave the place of
confinement unless escorted by a law enforcement
guard. The officers selected to guard the witness
shall have no other involvement in the case or
cases in which the witness is providing evidence.

History of Section.
P.L. 1990, ch. 326, section 3; P.L. 1990, ch. 327,
section 3; P.L. 1990, ch.331, section 1.

Compiler's Notes. This section was enacted by three
Acts (P.L. 1990, ch. 326, section 3; P.L. 1990, ch.
327, section 3; P.L. 1990, ch. 331, section 1)
passed by the 1990 General Assembly. Chapters 326,
section 3 and 327, section 3 both enact identical
versions of this section. However, the version
enacted by P.L. 1990, ch. 331, section 1 differs
from the other versions in that it substitutes
"state marshalls" for both "state police" and "law
enforcement officials" throughout the section. The
law revision officer of the joint committee on
legislative affairs, pursuant to section 43-2-2.1,
has determined that the enactment of this section
by P.L. 1990, ch. 326, section 3, and P.L. 1990,
ch. 327, section 3, supercede the enactment by P.
L. 1990, ch. 331, section 1. The section is set out
above as enacted by P.L. 1990, ch. 326, section 3,
and P.L. 1990, ch. 327, section 3.

As enacted by P.L. 1990, ch. 326, section 3; P.L.
1990, ch. 327, section 3; and P.L. 1990, ch. 331,
section 1

12-30-9. Monitoring of witness. The witness
protection review board shall examine the status of
each case involving a protected criminal witness at
three (3) month intervals. Any change in the terms
of confinement of the witness must be reported to
the board within five (5) days of its occurrence.

History of Section.
P.L. 1990, ch. 331, section 1.

12-30-10. Rules and regulations. The department of
attorney general and the state police shall
promulgate rules and regulations in furtherance of
the administration of their responsibilities
pursuant to this chapter. Said rules and
regulations shall be submitted to the witness
protection review board within six (6) months of
the effective date of this statute. Any amendment
of or addition to said rules shall be submitted to
the board within thirty (30) days of their
promulgation.

History of Section.
P.L. 1990, ch. 326, section 3; P.L. 1990, ch. 327,
section 3; P.L. 1990, ch. 331, section 1.

Compiler's Notes. This section was enacted by three
Acts (P.L. 1990, ch. 326, section 3; P.L. 1990, ch.
327, section 3; P.L. 1990, ch. 331, section 1)
passed by the 1990 General Assembly Chapters 326,
section 3 and 327, section 3 both enact identical
versions of this section. However, the version
enacted by P.L. 1990, ch. 331, section 1 differs
from the other versions in that it substitutes
"state marshalls" for "state police" in the first
sentence of the section. The law revision officer
of the joint committee on legislative affairs,
pursuant to section 43-2-2.1, has determined that
the enactment of this section by P.L. 1990, ch.
326, section 3, and P.L. 1990, ch. 327, section 3,
supercede the enactment by P.L. 1990, ch. 331,
section 1. The section is set out above as enacted
by P.L. 1990, ch. 326, section 3, and P.L. 1990,
ch. 327, section 3.

12-30-11. Priority for trial. In order to minimize
the period of time during which protection must be
provided for the witness, the trial of cases in
which a protected witness will be testifying shall,
upon application of the attorney general, be given
priority on the criminal trial calendar by the
superior court.

History of Section.
P.L. 1990, ch. 331, section 1.

12-30-12. Annual report. On the second Friday of
January of each year, the attorney general shall
submit a report to the general assembly stating the
number of proposed agreements submitted to the
witness protection review board during the previous
year and the number of agreements approved by said
review board and the attorney general. In addition
the report shall provide 1) the number of witnesses
currently in the program; 2) the number of
witnesses in the custody of the department of
corrections and in the custody of the state police;
3) the charges pending against each witness and the
proposed disposition resulting from his or her
cooperation; 4) the number of indictments that have
resulted from information obtained from each
witness; 5) the number of convictions that have
resulted from the information obtained from each
witness and the sentences imposed by the court; 6)
an itemization of all expenditures of public funds
made by or on behalf of each witness listed by the
purpose of the expenditure.

Said report shall not disclose the identity of any
witness not already publicly known to be
participating in the program nor shall it disclose
any specific information that might tend to reveal
the location of the witness.

History of Section.
P.L. 1990, ch. 326, section 3; P.L. 1990, ch. 327,
section 3; P.L. 1990, ch. 331, section 

Compiler's Notes. This section was enacted by three
Acts (P.L. 1990, ch. 326, section 3; P.L. 1990, ch.
327, section 3; P.L. 1990, ch. 331, section 1)
passed by the 1990 General Assembly. Chapters 326,
section 3 and 327, section 3 both enact identical
versions of this section. However, the version
enacted by P.L. 1990, ch. 331, section 1 differs
from the other versions in that it substitutes
"state marshalls" for "state police near the
beginning of the second paragraphs of the section.
The law revision officer of the joint committee on
legislative affairs, pursuant to section 43-2-2.1,
has determined that the enactment of this section
by P.L. 1990, ch. 326, section 3, and P.L. 1990,
ch. 327, section 3, supercede the enactment by P.L.
1990, ch. 331, section 1. The section is set out
above as enacted by P.L. 1990, ch. 326, section 3,
and P.L. 1990, ch. 327, section 3.

------------------------------

Appendix C2

Victim and Witness Intimidation

Sec.

4951. Definitions.

4952. Intimidation of witnesses or victims.

4953. Retaliation against witness or victim.

4954. Protective orders.

4955. Violation of orders.

4956. Pretrial release.

Historical Note

Subchapter B was added by Act 1980, Dec. 4, P.L.
1097, No. 187, section 4, eff. in 60 days.

Section 4951. Definitions

The following words and phrases when used in this
subchapter shall have, unless the context clearly
indicates otherwise, the meanings given to them in
this section:

"Victim." Any person against whom any crime as
defined under the laws of this State or of any
other state or of the United States is being or has
been perpetrated or attempted.

"Witness." Any person having knowledge of the
existence or nonexistence of facts or information
relating to any crime, including but not limited to
those who have reported facts or information to any
law enforcement officer, prosecuting official,
attorney representing a criminal defendant or
judge, those who have been served with a subpoena
issued under the authority of this State or any
other state or of the United States, and those who
have given written or oral testimony in any
criminal matter; or who would be believed by any
reasonable person to be an individual described in
this definition.

1980, Dec. 4, P.L. 1097, No. 187, section 4,
effective in 60 days.

Library References

Obstructing Justice - 1,4. C.J.S. Obstructing
Justice or Governmental Administration
section 2 to 4, 9, 16, 17, 20, 21.

Section 4952. Intimidation of witnesses or victims

A. Offense defined. - A person commits an offense
if, with the intent to or with the knowledge that
his conduct will obstruct, impede, impair, prevent
or interfere with the administration of criminal
justice, he intimidates or attempts to intimidate
any witness or victim to:

1. Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge
concerning any information, document or thing
relating to the commission of a crime.

2. Give any false or misleading information or
testimony relating to the commission of any crime
to any law enforcement officer, prosecuting
official or judge.

3. Withhold any testimony, information, document or
thing relating to the commission of a crime from
any law enforcement officer, prosecuting official
or judge.

4. Give any false or misleading information or
testimony or refrain from giving any testimony,
information, document or thing, relating to the
commission of a crime, to an attorney representing
a criminal defendant.

5. Elude, evade or ignore any request to appear or
legal process summoning him to appear to testify or
supply evidence.

6. Absent himself from any proceeding or
investigation to which he has been legally
summoned.

B. Grading. The offense is a felony of the third
degree if:

1. The actor employs force, violence or deception,
or threatens to employ force or violence, upon the
witness or victim or, with the requisite intent or
knowledge upon any other person.

2. The actor offers any pecuniary or other benefit
to the witness or victim or, with the requisite
intent or knowledge, to any other person.

3. The actor's conduct is in furtherance of a
conspiracy to intimidate a witness or victim.

4. The actor solicits another to or accepts or
agrees to accept any pecuniary or other benefit to
intimidate a witness or victim.

5. The actor has suffered any prior conviction for
any violation of this title or any predecessor haw
hereto, or has been convicted, under any Federal
statute or statute of any other state, of an act
which would be a violation of this title if
committed in this State.

Otherwise the offense is a misdemeanor of the
second degree.

1980, Dec. 4, P.L. 1987, No. 1987, section 4,
effective in 60 days.

Cross References

Limitation of prosecutions for crime committed
under this section, see 42 Pa.C.S.A. section 5552.

Section 4953. Retaliation against witness or victim

A. Offense defined. - A person commits an offense
if he harms another by any unlawful act in
retaliation for anything lawfully done in the
capacity of witness or victim.

B. Grading. - The offense is a felony of the third
degree if the retaliation is accomplished by any of
the means specified in section 4952(b)(1) through
(5) (relating to intimidation of witnesses or
victims). Otherwise the offense is a misdemeanor of
the second degree.

1980, Dec. 4, P.L. 1097, No. 187, section 4,
effective in 60 days.

Cross References

Limitation of prosecutions for crime committed
under this section, see 42 Pa.C.S.A. section 5552.

Section 4954. Protective orders

Any court with jurisdiction over any criminal
matter may, after a hearing and in its discretion,
upon substantial evidence, which may include
hearsay or the declaration of the prosecutor that a
witness or victim has been intimidated or is
reasonably likely to be intimidated, issue
protective orders including but not limited to the
following:

1. An order that a defendant not violate any
provision of this subchapter.

2. An order that a person other than the defendant,
including but not limited to a subpoenaed witness,
not violate any provision of this subchapter.

3. An order that any person described in paragraph
(1) or (2) maintain a prescribed geographic
distance from any specified witness or victim.

4. An order that any person described in paragraph
(1) or (2) have no communication whatsoever with
any specified witness or victim, except through an
attorney under such reasonable restrictions as the
court may impose.

1980, Dec. 4, P.L. 1097, No. 187, section 4,
effective in 60 days.

Section 4955. Violation of orders

Any person violating any order made pursuant to
section 4954 (relating to protective orders) may be
punished in any of the following ways:

1. For any substantive offense described in this
chapter, where such violation of an order is a
violation of any provision of this subchapter.

2. As a contempt of the court making such order. No
finding of contempt shall be a bar to prosecution
for a substantive offense under section 4952
(relating to intimidation of witnesses or victims)
or 4953 (relating to retaliation against witness or
victim), but:

i. any person so held in contempt shall be entitled
to credit for any punishment imposed therein
against any sentence imposed on conviction of said
substantive offense; and

ii. any conviction or acquittal for any substantive
offense under this title shall be a bar to
subsequent punishment for contempt arising out of
the same act.

3. By revocation of any form of pretrial release,
or the forfeiture of bail and the issuance of a
bench warrant for the defendant's arrest or
remanding him to custody. Revocation may, after
hearing and on substantial evidence, in the sound
discretion of the court, be made whether the
violation of order complained of has been committed
by the defendant personally or was caused or
encouraged to have been committed by the defendant.

1980, Dec. 4, P.L. 1097, No. 187, section 4,
effective in 60 days.

Section 4956. Pretrial release

A. Conditions for pretrial release.- Any pretrial
release of any defendant whether on bail or under
any other form of recognizance shall be deemed, as
a matter of law, to include a condition that the
defendant neither do, nor cause to be done, nor
permit to be done on his behalf, any act proscribed
by section 4952 (relating to intimidation of
witnesses or victims) or 4953 (relating to
retaliation against witness or victim) and any
willful violation of said condition is subject to
punishment as prescribed in section 4955(3)
(relating to violation of orders) whether or not
the defendant was the subject of an order under
section 4954 (relating to protective orders).

B. Notice of condition.- From and after the
effective date of this subchapter, any receipt for
any bail or bond given by the clerk of any court,
by any court, by any surety or bondsman and any
written promise to appear on one's own recognizance
shall contain, in a conspicuous location, notice of
this condition.

1980, Dec. 4, P.L. 1097, No. 187, section 4,
effective in 60 days.

Cross References

Conditions of bond, see Pa.R.Crim.P., Rule 4014, 42
Pa.C.S.A.

------------------------------

Appendix C3

California

Chapter 11. Street Terrorism Enforcement and
Prevention Act

Section

186.20 Citation.

186.21 Legislative findings and declaration.

186.22 Participation in criminal street gang;
punishment; felony conviction; sentence
enhancement; commission on or near school grounds;
pattern of criminal gang activity.

186.22a. Buildings or places used by criminal
street gangs; nuisance; additional remedies;
confiscation of firearms or deadly or dangerous
weapons owned or possessed by gang members.

186.23 Mutual aid activities; labor organizations. 

186.24 Severability.

186.25 Local laws; preemption.

186.26 Criminal street gang; violent coercion to
participate; offense.

186.27 Duration of chapter.

186.28 Firearms; supply, sell or give possession;
participation in criminal street gangs.

Repeal

Chapter 11 is repealed Jan. 1, 1997, by the
provisions of section 186.27.

Section 186.20. Citation

This chapter shall be known and may be cited as the
"California Street Terrorism Enforcement and
Prevention Act." Added by Stats. 1988, c. 1242,
section 1. eff. Sept. 26, 1988; Stats. 1988, c.
1256, section 1 eff. Sept. 26, 1988.)

Section 186.21. Legislative findings and
declaration

The Legislature hereby finds and declares that it
is the right of every person, regardless of race,
color, creed, religion, national origin, sex, age,
sexual orientation, or handicap, to be secure and
protected from fear, intimidation, and physical
harm caused by the activities of violent groups and
individuals. It is not the intent of this chapter
to interfere with the exercise of the
constitutionally protected rights of freedom of
expression and association. The Legislature hereby
recognizes the constitutional right of every
citizen to harbor and express beliefs on any lawful
subject whatsoever, to lawfully associate with
others who share similar beliefs, to petition
lawfully constituted authority for a redress of
perceived grievances, and to participate in the
electoral process.

The Legislature, however, further finds that the
State of California is in a state of crisis which
has been caused by violent street gangs whose
members threaten, terrorize, and commit a multitude
of crimes against the peaceful citizens of their
neighborhoods. These activities, both individually
and collectively, present a clear and present
danger to public order and safety and are not
constitutionally protected. The Legislature finds
that there are nearly 600 criminal street gangs
operating in California, and that the number of
gang-related murders is increasing. The Legislature
also finds that in Los Angeles county alone there
were 328 gang-related murders in 1986, and that
gang homicides in 1987 have increased 80 percent
over 1986. It is the intent of the Legislature in
enacting this chapter to seek the eradication of
criminal activity by street gangs by focusing upon
patterns of criminal gang activity and upon the
organized nature of street gangs, which together,
are the chief sources of terror created by street
gangs. The Legislature further finds that an
effective means of punishing and deterring the
criminal activities of street gangs is through
forfeiture of the profits, proceeds, and
instrumentalities acquired, accumulated, or used by
street gangs. (Added by Stats. 1988, c. 1242,
section 1, eff. Sept. 26, 1988: Stats. 1988, c.
1256, section 1, eff. Sept. 26, 1988.)

Section 186.22. Participation in criminal street
gang; punishment; felony conviction; sentence
enhancement; commission on or near school grounds;
pattern of criminal gang activity

A. Any person who actively participates in any
criminal street gang with knowledge that its
members engage in or have engaged in a pattern or
criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished
by imprisonment in a county jail for a period not
to exceed one year, or by imprisonment in the state
prison for 16 months, or 2 or 3 years.

B. 1. Except as in paragraph (2), any person who is
convicted of a felony committed for the benefit of,
at the direction of, or in association with any
criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct
by gang members, shall, upon conviction of that
felony, in addition and consecutive to the
punishment prescribed for the felony or attempted
felony of which he or she has been convicted, be
punished by an additional term of one, two, or
three years at the court's discretion. However, if
the underlying felony is committed on the grounds
of, or within 1,000 feet of, a public or private
elementary, vocational, junior high, or high
school, during hours in which the facility is open
for classes or school related programs or when
minors are using the facility, the additional term
shall be two, three, or four years, at the court's
discretion. The court shall order the imposition of
the middle term of the sentence enhancement, unless
there are circumstances in aggravation or
mitigation. The court shall state the reasons for
its choice of sentence enhancements on the record
at the time of the sentencing.

2. Any person who violates this subdivision in the
commission of a felony punishable by imprisonment
in the state prison for life, shall not be paroled
until a minimum of 15 calendar years have been
served.

C. If the court grants probation or suspends the
execution of sentence imposed upon the defendant
for a violation of subdivision (a), or in cases
involving a true findings of the enhancement
enumerated in subdivision (b), the court shall
require that the defendant serve a minimum of 180
days in a county jail as a condition thereof.

D. Notwithstanding any other law, the court may
strike the additional punishment for the
enhancements provided in this section or refuse to
impose the minimum jail sentence for misdemeanors
in an unusual case where the interests of justice
would best be served, if the court specifies on the
record and enters into the minutes the
circumstances indicating that the interests of
justice would best be served by that disposition.

E. As used in this chapter, "pattern or criminal
gang activity" means the commission, attempted
commission, or solicitation of two or more of the
following offenses, provided at least one of those
offenses occurred after the effective date of this
chapter and the last of those offenses occurred
within three years after a prior offense, and the
offenses are committed on separate occasions, or by
two or more persons:

1. Assault with a deadly weapon or by means of
force likely to produce great bodily injury, as
defined in Section 245.

2. Robbery, as defined in Chapter 4 (commencing
with Section 211) of Title 8 or Part 1.

3. Unlawful homicide or manslaughter, as defined in
Chapter 1 (commencing with Section 187) of Title 8
of Part 1.

4. The sale, possession for sale, transportation,
manufacture, offer for sale, or offer to
manufacture controlled substances as defined in
Sections 11054, 11055, 11056, 11057, and 11058 of
the Health and Safety Code.

5. Shooting at an inhabited dwelling or occupied
motor vehicle, as defined in Section 246.

6. Discharging or permitting the discharge of a
firearm from a motor vehicle, as defined in
subdivisions (a) and (b) of Section 12034.

7. Arson, as defined in Chapter 1 (commencing with
Section 450) of Title 13.

8. The intimidation of witnesses and victims, as
defined in Section 136.1.

9. Grand theft, as defined in Section 487, when the
value of the money, labor, or real or personal
property taken exceeds ten thousand dollars
($10,000).

10. Grand theft of any vehicle, trailer, or vessel,
as described in Section 487h. 11. Burglary, as
defined in Section 459.

12. Rape, as defined in Section 261.

13. Looting, as defined in Section 463.

14. Money laundering, as defined in Section 186.10.

15. Kidnapping, as defined in Section 207.

16. Mayhem, as defined in Section 203.

17. Aggravated mayhem, as defined in Section 205.

18. Torture, as defined in Section 206.

19. Felony extortion, as defined in Sections 518
and 520.

20. Felony vandalism, as defined in paragraph (1)
of subdivision (b) of Section 594.

21. Carjacking, as defined in Section 215.

22. The sale, delivery, or transfer of a firearm as
described in Section 12072.

23. Possession of a pistol, revolver, or other
firearm capable of being concealed upon the person
in violation of paragraph (1) of subdivision (a) of
Section 12101.

F. As used in this chapter, "criminal street gang"
means any ongoing organization, association, or
group of three or more persons, whether formal or
informal, having as one of its primary activities
the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (23), inclusive, of
subdivision (e), having a common name or common
identifying sign or symbol, and whose members
individually or collectively engage in or have
engaged in a pattern of criminal gang activity.

G. This section shall remain in effect only until
January 1, 1997, and on that date is repealed.
(Added by Stats. 1989, c. 930, section 5.1,
operative Jan. 1, 1993. Amended by Stats. 1991, c.
201 (A.B.1135), section 1, operative Jan. 1, 1993;
Stats.1991, c. 661 (A.B.1866), section 2, operative
Jan. 1, 1993; Stats.1993, c. 601 (S.B.724), section
1; Stats.1993, c. 610 (A.B.6), section 3, eff. Oct.
1, 1993; Stats.1993, c.611 (S.B.60), section 3,
eff. Oct. 1, 1993; Stat.1993, c. 1125 (A.B.1630),
section 3; Stats.1994, c. 47 (S.B.480), section 1,
eff. April 19, 1994; Stats.1994, c. 451 (A.B.2470),
section 1.)

Repeal

Section 186.22 is repealed by its own terms on Jan.
1, 1997.

Cross References

Firearm possession during street gang crimes,
sentence enhancement, see section 12021.5. Juvenile
court rules related to this section, see California
Rules of court, rule 1404.

Section 186.22a. Buildings or places used by
criminal street gangs; nuisance; additional
remedies; confiscation of firearms or deadly or
dangerous weapons owned or possessed by gang
members.

A. Every building or place used by members of a
criminal street gang for the purpose of the
commission of the offenses listed in subdivision
(c) of Section 186.22 or any offense involving
dangerous or deadly weapons, burglary, or rape, and
every building or place wherein or upon which that
criminal conduct by gang members takes place, is a
nuisance which shall be enjoined, abated, and
prevented, and for which damages may be recovered,
whether it is a public or private nuisance.

B. any action for injunction or abatement filed
pursuant to * * * subdivision (a) shall proceed
according to the provisions of article 3
(commencing with Section 11570) or Chapter 10 of
Division 10 of the Health and Safety Code, except
that all of the following shall apply:

1. The court shall not assess a civil penalty
against any person unless that person knew or
should have known of the unlawful acts.

2. No order of eviction or closure may be entered.

3. All injunctions issued shall be limited to those
necessary to protect the health and safety of the
residents or the public or those necessary to
prevent further criminal activity.

4. Suit may not be filed until 30-day notice of the
unlawful use or criminal conduct has been provided
to the owner by mail, return receipt requested,
postage prepaid, to the last known address.

C. No nonprofit or charitable organization which is
conducting its affairs with ordinary care or skill,
and no governmental entity, shall be abated
pursuant to * * * subdivisions (a) and (b).

D. Nothing in this chapter shall preclude any
aggrieved person from seeking any other remedy
provided by law.

E. 1. Any firearm, ammunition which may be used
with the firearm, or any deadly or dangerous weapon
which is owned or possessed by a member of a
criminal street gang for the purpose of the
commission of any of the offenses listed in
subdivision (c) of Section 186.22, or the
commission of any burglary or rape, may be
confiscated by any law enforcement agency or peace
officer.

2. In those cases where a law enforcement agency
believes that the return of the firearm,
ammunition, or deadly weapon confiscated pursuant
to this subdivision, is or will be used in criminal
street gang activity or that the return of the item
would be likely to result in endangering the safety
of others, the law enforcement agency shall
initiate a petition in the superior court to
determine if the item confiscated should be
returned or declared a nuisance.

3. No firearm, ammunition, or deadly weapon shall
be sold or destroyed unless reasonable notice is
given to its lawful owner if his or her identity
and address can be reasonably ascertained. The law
enforcement agency shall inform the lawful owner,
at that person's last known address by registered
mail, that he or she has 30 days from the date of
receipt of the notice to respond to the court clerk
to confirm his or her desire for a hearing and that
the failure to respond shall result in a default
order forfeiting the confiscated firearm,
ammunition, or deadly weapon as a nuisance.

4. If the person requests a hearing, the court
clerk shall set a hearing no later than 30 days
from receipt of that request. The court clerk shall
notify the person, the law enforcement agency
involved, and the district attorney of the date,
time, and place of the hearing.

5. At the hearing, the burden of proof is upon the
law enforcement agency or peace officer to show by
a preponderance of the evidence that the seized
item is or will be used in criminal street gangs
activity or that return of the item would be likely
to result in endangering the safety of others. All
returns of firearms shall be subject to subdivision
(d) of Section 12072.

6. If the person does not request a hearing within
30 days of the notice or the lawful owner cannot be
ascertained, the law enforcement agency may file a
petition that the confiscated firearm, ammunition,
or deadly weapon be declared a nuisance. If the
items are declared to be a nuisance, the law
enforcement agency shall dispose of the items as
provided in Section 12028. (Added by Stats.1988, c.
1256, section 1, eff. Sept. 26, 1988. Amended by
Stats.1990, c. 223 (A.B.3485), section 1; Stats.
1991, c. 260 (S.B.809), section 1.)

Section 186.23. Mutual aid activities; labor
organizations

This chapter does not apply to employees engaged in
concerted activities for their mutual aid and
protection, or the activities of labor
organizations or their members or agents. (Added by
Stats.1988, c. 1242, section 1, eff. Sept. 26,
1988; Stats. 1988, c. 1256, section 1, eff. Sept.
26, 1988).

Section 186.24. Severability

If any part or provision of this chapter, or the
application thereof to any person or circumstance,
is held invalid, the remainder of the chapter,
including the application of that part or provision
to other persons or circumstances, shall not be
affected thereby and shall continue in full force
and effect. To this end, the provision of this
chapter are severable. (Added by Stats.1988, c.
1242, section 1, eff. Sept. 26, 1988; Stats.1988,
c. 1256, section 1, eff. Sept. 26, 1988.)

Section 186.25. Local laws; preemption

Nothing in this chapter shall prevent a local
governing body from adopting and enforcing laws
consistent with this chapter relating to gangs and
gang violence. Where local laws duplicate or
supplement this chapter, this chapter shall be
construed as providing alternative remedies and not
as preempting the field. (Added by Stats.1988, c.
1242, section 1, eff. Sept. 26, 1988: Stats.1988,
c. 1256, section 1 eff. Sept. 26, 1988.)

Section 186.26 Criminal street gang; violent
coercion to participate; offense

a) Any adult who utilizes physical violence to
coerce, induce, or solicit another person who is
under 18 years of age to actively participate in
any criminal street gang, as defined in subdivision
f) of Section 186.22, the members of which engage
in a pattern of criminal gang activity, as defined
in subdivision (c) of Section 186.22, shall be
punished by imprisonment in the state prison for
one, two, or three years.

b) Any adult who threatens a minor with physical
violence on two or more separate occasions within
any 30-day period with the intent to coerce,
induce, or solicit the minor to actively
participate in a criminal street gang, as defined
in subdivision (f) of Section 186.22, the members
of which engage in a pattern of criminal gang
activity, as defined in subdivision (e) of Section
186.22, shall be punished by imprisonment in the
state prison for one, two, or three years or in a
county jail for up to one year.

C. A minor who is 16 years of age or older who
commits an offense described in subdivision (a) or
(b) is guilty of a misdemeanor.

D. Nothing in this section shall be construed to
limit prosecution under any other provision of the
law.

E. No person shall be convicted of violating this
section based upon speech alone, except upon a
showing that the speech itself threatened violence
against a specific person, that the defendant had
the apparent ability to carry out the threat, and
that physical harm was imminently likely to occur.
(Added by Stats.1993, c. 557 (A.B.514, section 1.)

Section 186.27. Duration of chapter

This chapter shall remain in effect only until
January 1, 1997, and as of that date is repealed,
unless a later enacted statute, which is chaptered
before January 1, 1997, deletes or extends that
date. (Added by Stats.1988, c. 1242, section 1,
eff. Sept. 26, 1988; Stats.1988,c. 1256, section 1,
eff. Sept. 26, 1988. Amended by Stats.1991, c. 201
(A.B.1135), section 2.)

Section 186.28. Firearms; supply, sell or give
possession; participation in criminal street gangs

A. Any person, corporation, or firm who shall
knowingly supply, sell, or give possession or
control of any firearm to another shall be punished
by imprisonment in the state prison, or in a county
jail for a term not exceeding one year, or by a
fire not exceeding one thousand dollars ($1,000),
or by both that fine and imprisonment if all of the
following apply:

1. The person, corporation, or firm has actual
knowledge that the person will use the firearm to
commit a felony described in subdivision (e) of
Section 186.22, while actively participating in any
criminal street gang, as defined in subdivision (f)
of Section 186.22, the members of which engage in a
pattern of criminal activity, as defined in
subdivision (e) of Section 186.22.

2. The firearm is used to commit the felony.

3. A conviction for the felony violation under
subdivision e) of Section 186.22 has first been
obtained of the person to whom the firearm was
supplied, sold, or given possession of control
pursuant to this section.

B. This section shall only be applicable where the
person is not convicted as a principal to the
felony offense committed by the person to whom the
firearm was supplied, sold, or given possession or
control pursuant to this sections. (Added by
Stats.1992, c. 370 (S.B.437), section 1.)

------------------------------

Appendix C4

Minnesota

609.495 Aiding An Offender

Subdivision 1. Whoever harbors, conceals, or aids
another known by the actor to have committed a
felony under the laws of this or another state or
of the United States with intent that such offender
shall avoid or escape from arrest, trial,
conviction, or punishment, may be sentenced to
imprisonment for not more than three years or to
payment of a fine of not more than $5,000, or both.

Subdivision 2. This section does not apply if the
actor at the time of harboring, concealing, or
aiding an offender in violation of subdivision 1,
or aiding an offender in violation of subdivision
3, is related to the offender as spouse, parent, or
child.

Subdivision 3. Whoever intentionally aids another
person known by the actor to have committed a
criminal act, by destroying or concealing evidence
of that crime, providing false or misleading
information about that crime, receiving the
proceeds of that crime, or otherwise obstructing
the investigation or prosecution of that crime is
an accomplice after the fact and may be sentenced
to not more than one-half of the statutory maximum
sentence of imprisonment or to payment of a fine of
not more than one-half of the maximum fine that
could be imposed on the principal offender for the
crime of violence. For purposes of this
subdivision, "criminal act" means an act that is a
crime listed in section 609.1 1, subdivision 9,
under the laws of this or another state, or of the
United States, and also includes an act that would
be a criminal act if committed by an adult.

History 
1963 c 753 art 1 s 609: 495; 1984 c 628 art 3 s 11;
1986 c 444; 1993 c 326 art 4 s 25 

------------------------------

NOTE: Appendix D is not included in this ASCII file.

---------------------------

Appendix E 

Sample Public Housing Authority Procedures for
Expediting Transfers of Intimidated Witnesses 

New York City Housing Authority 

TO: District Directors District Supervisors &
Project Mangers 

FROM: Donald Matthews, Director of Management 

SUBJECT: Emergency Transfer Procedure for Victims
of Domestic Violence, Intimidated Victims &
Intimidated Witnesses 

Background 

In 1988, the Office of the Inspector General (OIG)
established a Witness Relocation program to deal
with relocation requests of both non-tenants and
tenants. A formal liaison with the prosecutor's
offices was established by the OIG to assume
responsibility for all agency relocation requests. 
In 1989, the Management Department implemented an
emergency transfer policy for victims of domestic
violence and intimidated victims and witnesses. 

The Management Department, Victim Services Agency,
and the OIG, are now coordinating the relocation
process through a joint emergency transfer policy
which establishes uniformity in the steps taken by
residents for all categories of emergency transfers. 

Statement of Purpose 

In order to reduce as much as possible the
possibility of violence and to ensure the safety of
our tenants, the processing of all requests must be
given the highest priority by staff at all levels
for victims of domestic violence, intimidated
victims and intimidated witnesses. 

Definitions 

In order to clarify the emergency transfer
policies, the following terms which are applicable
to this procedure have been defined below: 

A. VSA - refers to the Victim Services Agency (see
attached list of community offices and court
programs). 

B. DA - refers to District Attorney's Office or any
other prosecutor's office with offices within the
city of New York (see attached list of District
Attorney's liaison contacts). 

C. LEA - Law Enforcement Agency such as Police,
Corrections, Probation Department(s). 

D. IV - Intimidated Victim -- refers to a person
against whom a violent crime has been committed or
threatened but for which no arrest has been
effected. The circumstances surrounding the
commission of the crime or the threat against the
intimidated victim are such as to constitute a
continuing threat to the safety of the intimidated
victim and/or members of the immediate family if
such person(s) continue(s) to live in the home.
Facts which must be assessed to demonstrate the
existence of a continuing threat are: 

1. The prior relationship, if any, between the
victim and person(s) committing the crime or making
the threat. 

2. A determination by an outside agency that the
nature of the threat is one which instills in the
intimidated victim a fear that there is a
substantial risk of a repeat offense or continued
intimidation of a serious nature. 

3. A fear that the person who committed the crime
or made the threat will cause physical injury to
the intimidated victim or to members of his or her
immediate family if the intimidated victim
cooperates with law enforcement authorities in the
investigation, apprehension and prosecution of such
person(s). 

4. A demonstration of facts which make it likely
that the person(s) who committed the crime or made
the threat know or possess facts which make it
likely that such person(s) or associate(s) of such
person(s) know where the intimidated victim lives. 

5. Where an actual crime has been committed, the
intimidated victim has made a commitment to
cooperate and assist in the apprehension and
conviction of such person(s). 

E. VDV - Victim of Domestic Violence - refers to a
person(male or female) who has suffered serious or
repeated abuse from a family member or close
associate and who fears that the potential of
violence continues to exist for the individual from
the abuser. 

F. IW - Intimidated Witness -- refers to a person
against whom a violent crime has been committed in
which there has been an arrest or a person who has
witnessed the commission of a violent crime
committed against someone else in which there has
been an arrest. The circumstances surrounding the
commission of the crime witnessed by the
intimidated witness or committed against the
intimidated witness are such to constitute a
continuing threat to the safety of the intimidated
witness and/or members of the immediate family if
such person(s) continues to live in the home in
which they lived prior to the commission of the
crime. Facts which must be assessed to demonstrate
the existence of a continuing threat are: 

1. The prior relationship between the victim of the
crime and the person(s) committing the crime. 

2. A determination by the DA of a threat which
instills in the intimidated witness a fear that the
defendant or others associated with the defendant
will cause physical injury to the intimidated
witness or members of the immediate family if that
individual cooperates or continues to cooperate
with law enforcement authorities in the prosecution
of the defendant. 

G. Order of Protection -- An order of the court
prohibiting a member of the family or other person
from engaging in certain behavior. To be valid, for
purposes of this directive, it must be
exclusionary, denying access to the home, in all
cases where the defendant in the action has legal
rights to the apartment. In those VDV and IV cases,
where the order of protection is appropriate, it
must be in effect at the time of the transfer
request. 

Note: Transfers are not to be delayed because the
order of protection is temporary. If the order of
protection is in effect at the time of the request,
it is to be processed and the tenant is to submit
proof of the next court appearance date. 

H. DRRC-refers to Department of Resident Review and
Counseling. 

The Procedure 

There are different ways in which Managers receive
requests for emergency transfers. Many IV/IW/VDV
cases will be referred to the Manager from an
outside agency. In other instances, the tenant will
request the transfer directly and the project
Manager must carefully evaluate the request in line
with the definitions outlined above. If applicable,
the tenant is to be referred to an appropriate
agency for substantiating documentation. If the
resident clearly does not qualify as an emergency
transfer, the provisions of the Management Manual,
Chapter IV, Subdivision XIII (Transfers - all
programs) should be discussed with the tenant so
that a transfer may be applied for through normal
channels. If, however, the tenant believes that
his/her request is a legitimate VDV/IW/IV case, a
referral to an appropriate agency is to be made. 

On the following pages, are the steps to follow for
the different types of cases. Most victims of
domestic violence (VDV) and intimidated victims
(IV) will be referred from VSA or a law enforcement
agency (LEA) such as Police, Corrections, or
Probation. However, in some instances, where
serious crimes are involved, referrals for VDV and
IV cases may be forthcoming from the District
Attorney's Office. Under no circumstances, are
these cases to be delayed while the tenant obtains
an order of protection, ets. Once the referral is
received from the DA's office, it is to be
processed immediately. 

Attachments 

Attached to this procedure are the following: 

Attachment 1 -- District Attorney's Office Liaison
Contacts -- Intimidated Witnesses 

Attachment 2 -- Victim Services Agency Community
Offices and Court Programs 

Attachment 3 -- VSA Request for an Expedited
N.Y.CH.A. Emergency Transfer for Victims of
Domestic Violence (sample form) 

Attachment 4 -- Victim Services Agency (VSA)
Request for an Expedited NYCHA Transfer for
Intimidated Witnesses and Victims (sample form) 

Attachment 5 -- NYCHA Form 040.050, Tenant Request
for Transfer 

Attachment 6 -- Map of NYCHA Management Districts 

Steps in the Emergency Transfer Request 

Tenant Transfer Request-VDV/IV from VSA or LEA 

Step 1. Tenant completes 040.050, Tenant Request
for Transfer and submits to Project Manager with 3
District choices.

Note: This procedure does not allow individual
project choices. The tenant must request 3
Districts (see attached map with geographic
boundaries). Inappropriate choices should not be
made, i.e., district of current residence or area
where friends or relatives of abuser or perpetrator
reside.

Step 2. VDV Cases - - Submission to Manager of VSA
referral form or referral from LEA. 

Step 3. IV Cases -- referral from VSA or LEA is
submitted to Manager. 

Step 4. For both IV and VDV cases, submission of
supporting documentation, if required, from Police,
Correction, Probation etc.(including any copy of
incident reports). 

Step 5. Tenant submits valid order of protection to
Manager for most VDV cases (many IV cases will not
require an order of protection). 

Note: If an Order of Protection, (exclusion or
vacate order) has been obtained, project staff
shall under no circumstances provide lock-out
service or change the lock at the request of the
person cited as the abuser or perpetrator in the
Order of Protection. 

Step 6. If serving of the Order of Protection at
the time of transfer request will present a clear
and present danger to the tenant, plans for
obtaining possession of the apartment must be
included in the VSA referral. It is not the intent
of this procedure to leave any residual tenant in
the apartment. 

Tenant Transfer Request--IW From Office of District
Attorney* 

Step 1. Tenant completes 040.050 Tenant Request for
Transfer and submits to Project Manager with 3
District choices. 

Note: This procedure does not allow individual
project choices. The tenant must request 3
Districts (see attached map with geographic
boundaries). Inappropriate choices should not be
made, i.e., district of current residence or area
where friends or relative of abuser or perpetrator
reside. 

Step 2. Letter from liaison in the DA's office
requesting tenant's transfer must be submitted to
Manager if case is to be processed as an
intimidated witness. 

Note: Other supporting documentation such as Police
incident reports is optional and an order of
protection is not required for cases referred from
DA's office. 

Step 3. The Manager may contact the D.A. liaison
(see attached list) directly, if further discussion
of case is required. 

* Once action is begun on a case by the DA, the
tenant is considered an intimidated witness, even
if the case originated as an intimidated victim or
victim of domestic violence.

DV/IV cont. 

Role of Project Manager 

Step 1. Manager evaluates transfer request and
approves or disapproves transfer (unless additional
information is needed) within 2 working days. 

Step 2. If the Manager determines that additional
information (a.i.) is needed , a request is to be
made with the VSA or LEA contact to submit a.i.
within 7 working days. 

Step 3. If a.i. is still pending after seven
working days, informs VSA/LEA to submit information
immediately to the appropriate Deputy Dir. of
Mgmt.(Room 305 B) and approves or disapproves
transfer. 

Step 4. Manager prepares inter-project transfer
request 040.059R. 

a. Only original prepared-no copy 

b. Appropriate background information given
whereabouts of abuser in VDV case, social problems,
status of DRRC and other legal actions, etc. 

c. Plan for payment of rent, charges, etc. must be
included. 

d. Referral letters (VSA or LEA) with
substantiating documentation -- if required. 

e. Copy of Order of Protection -- if required. 

Step 5. Manager hand delivers all transfer requests
to District, approved or disapproved. 

Role of District Director 

Step 1. The District Director or designee reviews
all transfer requests (approved or disapproved)
submitted from Managers. 

Step 2. District Director or designee approves or
disapproves transfer request. 

Step 3. Submits all transfer requests approved or
disapproved to Deputy Director of Management in 2
working days. 

Step 4. Logs dates of submission in District
Control Log. 

IW cont. 

Role of Project Manager 

Step 1. Manager evaluates transfer request and
approves or disapproves transfer within 2 working
days. 

Step 2. Manager prepares inter- project transfer
request 040.059R. 

a. Only original prepared copy. 

b. Appropriate background information given
whereabouts, social problems status of DRRC and
other legal actions etc. 

c. Plan for payment of rent, charges, etc. must be
included. 

d. DA's referral letter and any other
substantiating documentation attached.* 

Step 3. Manager submits transfer request to
District within 2 working days. 

Step 4. Manager hand delivers all transfer requests
to District, approved or disapproved. * 

If a referral letter is not attached from a liaison
D.A., then case cannot be considered as an IW case.
No cases are to be delayed for information in
addition to the DA's referral letter. 

Role of District Director 

Step 1. The District Director or designee reviews
all transfer requests (approved or disapproved)
submitted from Manager. 

Step 2. District Director or designee approves or
disapproves transfer request. 

Step 3. Submits all transfer requests, approved or
disapproved, to Deputy Director of Management in 2
working days. 

Step 4. Logs dates of submission in District
Control Log. 

VDV/IV cont. 

Role of Deputy Director of Management for Field
Operations 

A. Transfer Requests With No A.I. Pending 

The Deputy Director of Management reviews all
complete transfer requests submitted from District
Directors: 

APPROVED 

Step 1 

The Deputy Director approves request.

Step 2

Submits to OCD

Step 3

OCD certifies transfers and delivers to Command
Center for Relocated Families.

DISAPPROVED

Step 1 

The Deputy Director disapproves request.

Step 2

Submits disapproval requests to DRRC, reasons for
disapproval are reviewed.

Step 3

Negative decision -- DRRC informs Deputy Director
of management of decision. Transfer request
returned to Deputy who informs VSA or referring
agency (LEA),

Step 4 

DRRC resolves issues. Transfer returned to Deputy,
who approves and sends to OCD.

Step 5

OCD sends to Command Center for Relocated Families.

B. Incomplete Transfer Request: 

If pending information is not obtained within 2
working days, the Field Deputy will refer the case
to the Deputy Director of Mgmt. for Tenant
Relations. If necessary, the referring agency will
be contacted in order to resolve any outstanding
issues. The transfer request will then be returned
to the field Deputy with a recommendation for
approval or disapproval and the steps outlined in
A. above will be followed. 

I.W. cont. 

Role of Deputy Director of Management for Field
Operations 

A. I.W. Transfer Request* 

The Deputy Director of Management reviews all I.W.
transfer requests submitted from District Directors: 

APPROVED

Step 1

The Deputy Director approves request.

Step 2

Submits to OCD.

Step 3

OCD certifies transfers and delivers to Command
Center for Relocated Families.

DISAPPROVED

Step 1

The Deputy Director disapproves request.

Step 2

Submits disapproval requests to DRRC, reasons for
disapproval are reviewed.

Step 3

Negative decision -- DRRC informs Deputy Director
of Management of decision. Transfer request
returned to Deputy who informs DA's office.

Step 4

DRRC resolves issues. Transfer returned to Deputy,
who approves and sends to OCD.

Step 5

OCD sends to Command Center for Relocated Families.

* No transfer requests are to be submitted to the
Deputy Director of Management for Field Operations
as an I.W. case without a referral letter from a
D.A. If this verification is not forthcoming the
case may be re- evaluated to see if it fits the
criteria for a VDV or IV case and may be submitted
as per this procedure.

VDV/IV cont. 

Role of Command Center 

Step 1. Command Center assigns transfer to project
and notifies VSA or referring agency of assignment.

All contacts with the tenant must be made through
VSA or the referring agency. Under no
circumstances, should the receiving project contact
the tenant or the move-out project directly. If for
any reason, staff is unable to reach the agency
contact person after several attempts, the
Emergency Transfer Coordinator at VSA (212
577-3870) is to be contacted immediately. 

Step 2. 

As soon as assignment is made, the Command Center
immediately transmits application directly to the
receiving project. 

Step 3. 

If tenant refuses project, application is returned
to Command Center, and second project will be
offered. 

Step 4. 

If tenant refuses both choices, project returns
case to Command Center for Relocated Families who
forwards it to Deputy Director of Management/Tenant
Relations who evaluates reasons for return. 

Step 5. 

If approval is given for the offer of a third
choice, transfer request is returned to Command
Center for reassignment. 

Step 6. 

If District reassignment is not approved, transfer
request returned to Command Center who notifies VSA
or referring agencies (LEA) of decision. 

Step 7. 

The Command Center then returns transfer request to
Deputy Director of Management for Field Operations
who returns request to originating project and logs
it in the computer.

IW cont. 

Role of Command Center 

Step 1. 

Command Center assigns transfer to project and
notifies DA of assignment. 

All contacts with the tenant must be made through
the DA. Under no circumstances should the receiving
project contact the tenant move-out project
directly. 

Step 2. 

As soon as assignment is made, the Command Center
immediately transmits application directly to the
receiving project. 

Step 3. 

If tenant refuses project, application is returned
to Command Center, and second project will be
offered. 

Step 4. 

If tenant refuses both choices, project returns
case to Command Center for Relocated Families who
forwards it to Deputy Director of Management/Tenant
Relations who evaluates reasons for return. 

Step 5. 

If approval is given for the offer of a third
choice, transfer request is returned to Command
Center for reassignment. 

Step 6. 

If District reassignment is not approved, transfer
request returned to Command Center who notifies
liaison DA of decision. 

Step 7. 

The Command Center then returns transfer request to
Deputy Director of Management for Field Operations
who returns request to originating project and logs
it in the computer.

IMPLEMENTATION OF TRANSFER 

After the tenant accepts an assignment, the
receiving project conducts the rental interview: 

A. Payment of Rent and Security 

Rent and security for the new apartment must be
paid according to procedure. The payment of an
additional deposit prior to transfer is hereby
waived [Management Manual, Chapter IV, Subdivision
XIII page 14, 11a(l)]. If the payment of a new
security deposit in full prior to occupancy in the
new apartment would create an undue hardship or
delay the move, the current procedure regarding
installment payments for the security deposit will
be used [Management Manual, Chapter IV Subdivision
XIII9 Page 15, -11b (2)]. If any problems arise in
obtaining the required monies, security or rent,
the project will immediately notify the referring
agency. Extensive efforts must be undertaken by the
Manager of the move-out project to obtain all rents
due at the old project before the transfer is
effected. In VDV cases, even if the tenant is in
residence at a shelter, VSA will assist project
staff in obtaining the required monies and
resolving rent problems. 

B. Move-Out Notices and Procedures 

1. After the completion of the rental interview
(leases signed, monies paid for the tenant's
transfer in the new apartment), the tenant must
sign a move-out notice at that time. The tenant
must also be advised not to state on the move-out
notice either the name of the new project or the
address of the new apartment. The Command Center
for Relocated Families at 250 Broadway, Rm.301, is
to be given an the tenant's forwarding address. An
employee other than the Manager should sign the
move-out notice (the name of the new project must
not appear on this notice). The receiving project
will forward the signed move-out notice to the
Command Center, who will then forward it to the old
project and continue, to monitor the completion of
the move-out. 

2. The receiving project must notify the Command
Center when keys are issued. The Command Center
will, in turn, notify the originating project that
the keys have been issued (the date of this
telephone contact is to be entered in the Command
Center log). 

3. The tenant is to be instructed to return the
keys immediately after the move is completed. The
tenant may return keys to the new Management Office
who will immediately notify the Command Center by
phone and then forward the keys to the C.C. by
mail. The Command Center will, in turn, notify the
move-out project. 

4. On the space inventory card, only VDV/IW/IV is
to be entered. No forwarding address is to be entered. 

5. All communication concerning the move-out
(including the move-out folder and move-out
charges) is to be forwarded by the old project to
the Command Center who will then forward it to the
receiving project. 

6. The importance of confidentiality is to be
emphasized by project staff at the new rental
interview. The tenant should be encouraged to
inform hospitals, schools, etc. not to give new
address. The DSS must also be informed of the need
for confidentiality and this need should also be
discussed with family members and friends. 

7. A notation in the new tenant folder is to be
made in red with the letters VDV or IW/IV so that
staff will be aware of the ongoing need to be
cautious in disclosing information concerning the
tenant. 

8. If social problems arise in the tenant's
adjustment to the new environment, a referral
should be made to the District social worker (the
VSA referring agency worker should be contacted in
cases of domestic violence). 

9. If charges are owed by the vacating tenant, the
"Vacating Tenants Final Refund Balance Due", NYCHA
Form # 132.039 is forwarded to the Command Center
who forwards it to the move-in project. The move-
out project will handle the move-in charges as per
procedure. The forwarding address of the Command
Center must be written on this form in place of the
new project and a notation in red "VDV/IW/IV." 

10. When transferring tenants end up with a credit
balance after processing of the move-out, the
vacating project must also note in red "VDV or
IV/IW" and must inform Disbursements of the
forwarding address of the Command Center on the
"Vacating Tenants Final Refund/Balance Due," NYCHA
Form # 132.039. Disbursements will issue the refund
check to the Command Center who will then forward
it directly to the tenant. 

C. Reporting 

1. On the Manager's Monthly Report, the move-out
project is to enter under the section entitled
"Reason for Vacating (if inter-project transfer
give name of receiving project)," the name of the
Command Center with the notation VDV or IW/IV. At
the receiving project, the Manager's Monthly Report
is to include "Inter" and the project and account
the tenant is transferring from in the reason
column. 

2. Tenant Transcripts 

When a VDV or IW/IV tenant transfers, the following
procedure should be followed with respect to the
Tenant Transcripts: 

a. Receiving Project: a "Transcript of Tenant Data
Admission and Income" (NYCHA form 047.004) should
be prepared as for a new tenant. For "Basis for
Selection" use the same code that the tenant was
originally admitted under. 

b. Move-Out Project: prepare a "Report on Tenant
Move-out" (NYCHA form 047.006). For "Moved To"
circle "7," which is used for unknown, as well as
Deceased, Institutionalized; for "Reason for
Moving" circle "9" and write "VDV" or "IW/IV" in
the space provided. 

3. When staff from Research & Policy Development
call for move-out or admission information on
VDV/IW/IV cases, information is to be given to them
as described above and confidentiality will be
maintained.

Donald A. Matthews