U.S. Department of Justice

Office of Justice Programs

National Institute of Justice

DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

National Institute of Justice

Issues and Practices

Preventing Gangand Drug-Related

Witness Intimidation
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

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of 1968, as amended, and the Anti-Drug Abuse Act of 1988

direct the National Institute of Justice to:

• Sponsor special projects, and research and development programs that will improve and strengthen the

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The National Institute of Justice has a long history of

accomplishments, including the following:

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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

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.

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

Advisory Panel

NCJ 163067
Table of Contents

Page

Foreword .......................................................................................................................................................... vii

Acknowledgments ............................................................................................................................................ ix

Executive Summary.......................................................................................................................................... xi

Chapter 1: The Nature and Extent of Witness Intimidation ..................................................................... 1

What Is Witness Intimidation? ...................................................................................................... 1

Types of Intimidation .......................................................................................................... 1

Gang-Inspired Fear: A Particularly Pervasive Problem..................................................... 2

Fear Is Not the Only Reason Witnesses Do Not Testify .................................................... 4

How Serious Is Witness Intimidation?.......................................................................................... 4

Forms of Intimidation ................................................................................................................... 5

Physical Violence ................................................................................................................ 6

Explicit Threats of Physical Violence ................................................................................. 6

Indirect Intimidation ........................................................................................................... 7

Property Damage ................................................................................................................. 7

Courtroom Intimidation ...................................................................................................... 7

Other Forms of Intimidation ............................................................................................... 7

The Primary Actors in Witness Intimidation ................................................................................ 7

Types of Perpetrators .......................................................................................................... 7

The Most Likely Targets of Intimidation............................................................................ 7

When Intimidation Occurs .................................................................................................. 9

Conclusion ..................................................................................................................................... 9

Endnotes ........................................................................................................................................ 9

PART I COMPONENTS OF A COMPREHENSIVE WITNESS SECURITY PROGRAM

Chapter 2: Traditional Approaches to Witness Security .......................................................................... 13

Requesting High Bail .................................................................................................................. 13

Vigorous Prosecution of Intimidators ......................................................................................... 14

Charging Practices ............................................................................................................ 14

Advantages and Drawbacks of Prosecution ...................................................................... 14

Witness Management .................................................................................................................. 16
Page

Basic Victim/Witness Assistance Program Services .................................................................. 19

Conclusion................................................................................................................................... 20

Endnotes ...................................................................................................................................... 21

Chapter 3: Relocating Intimidated Witnesses ........................................................................................... 23

Emergency and Short-Term Relocation ...................................................................................... 24

How Emergency and Short-Term Relocation Procedures Work

in Three Jurisdictions ..................................................................................................... 24

Hotels and Motels ............................................................................................................. 28

Short-Term Relocation With Out-of-Town Family Members or Friends ........................ 29

Social Services and School Enrollment ............................................................................ 30

Drug Treatment for Addicted Witnesses .......................................................................... 31

How Long Must a Witness Remain Relocated? ............................................................... 31

Permanent Relocation ................................................................................................................. 32

Public Housing Programs.................................................................................................. 32

PHA Discretion in Assigning Housing Units ................................................................... 35

Some PHAs Provide Expedited Processing ...................................................................... 37

Suggestions for Working With PHAs ............................................................................... 37

Conclusion................................................................................................................................... 38

Endnotes ...................................................................................................................................... 38

Chapter 4: Preventing Intimidation in Courtrooms and Jails ................................................................. 39

Intimidation in the Courtroom .................................................................................................... 40

Why Many Judges Are Reluctant To Act ......................................................................... 40

Actions Judges Can Take .................................................................................................. 40

The Role of Bailiffs........................................................................................................... 43

Motivating Judges To Act ................................................................................................. 43

Court–Related Actions Prosecutors and Police Can Take on Their Own......................... 44

Intimidation in Jails and Prisons ................................................................................................. 45

Conclusion................................................................................................................................... 47

Endnotes ...................................................................................................................................... 47

Chapter 5: Reducing Community-wide Intimidation ............................................................................... 49

Does Community-wide Intimidation Require Attention? ........................................................... 49

Community Policing and Prosecution Strategies ........................................................................ 50

Community Education and Empowerment ................................................................................. 52

Public Relations........................................................................................................................... 52

Conclusion................................................................................................................................... 55

Endnotes ...................................................................................................................................... 55
Page

PART II DEVELOPING OR IMPROVING THE PROGRAM

Chapter 6: Developing a Comprehensive Witness Security Program ..................................................... 59

Why a Formal Structure Is Preferred .......................................................................................... 60

1. Getting Started: The Organizing Committee ........................................................................ 62

Conduct an Assessment of the Problem............................................................................ 62

Identify Appropriate Program Features ............................................................................ 62

Identify Needed and Available Resources ........................................................................ 62

Decide on the Composition of the Operational Team ...................................................... 65

2. Program Oversight: The Operational Team .......................................................................... 66

Reviewing Witness Security Requests.............................................................................. 66

Overseeing Program Operations ....................................................................................... 67

3. Coordinating Services: The Program Administrator ............................................................ 67

Witness Security Requests ................................................................................................ 68

Coordination of Witness Services ..................................................................................... 69

4. Case Investigation: Police Unit or District Attorney Investigators ...................................... 69

5. Law Enforcement: The Indispensable Partner in the Witness Security Effort ..................... 69

6. Cooperation: Coordinating Services With Other Agencies .................................................. 71

Identify a Point Person Within Each Agency ................................................................... 71

Gain Support From the Top .............................................................................................. 72

Develop Memorandums of Understanding ....................................................................... 72

Conclusion: Putting the Pieces Together ................................................................................... 74

Chapter 7: Legal Issues ................................................................................................................................ 75

Preventing Courtroom Intimidation ............................................................................................ 76

Exclusion of the Public From the Courtroom ................................................................... 76

Using Hearsay Testimony From Law Enforcement Officers in Lieu of

 Direct Witness Testimony............................................................................................ 77

Impeaching Inconsistent Witness Testimony ................................................................... 78

Keeping Witness and Jury Information Confidential ....................................................... 78

Legislation Designed To Prevent Intimidation ........................................................................... 79

Gang Suppression Initiatives ....................................................................................................... 81

Statutory Aids to Combating Community-wide Intimidation .................................................... 82

Using Civil Remedies: Nuisance Abatement ................................................................... 82

Drug Loitering Ordinances ............................................................................................... 84

RICO Prosecutions ............................................................................................................ 84

Liability Issues: Witness Safety and Witness Misconduct ........................................................ 84

Governmental Responsibility To Protect Threatened Victims and Witnesses ................. 84

Governmental Liability for Actions of Protected Witnesses ............................................ 86

Conclusion ................................................................................................................................... 87

Endnotes ...................................................................................................................................... 87
Page

Chapter 8: Sources of Help .......................................................................................................................... 91

Organizations .............................................................................................................................. 91

Potential Funding Sources........................................................................................................... 92

Literature ..................................................................................................................................... 93

Witness Security ............................................................................................................... 93

Gangs ................................................................................................................................ 93

Individuals ................................................................................................................................... 93

Appendixes

Appendix A Sample Program Guidelines ........................................................................................................ 99

Appendix B Sample Program Forms ............................................................................................................. 113

Appendix C Sample Legislation .................................................................................................................... 127

Appendix D Sample Evaluative Reports ....................................................................................................... 139

Appendix E Sample Public Housing Authority Procedures for Expediting Transfers of

Intimidated Witnesses ............................................................................................................... 143

Index ............................................................................................................................................................... 151

List of Figures

Figure 3-1: Assessing Relocation Options ..................................................................................................... 25

Figure 6-1: Comprehensive Witness Security Program Model ..................................................................... 61

Figure 6-2: Respondents’ Perceptions Concerning the Effectiveness of Principal

Approaches to Witness Security by Type of Intimidation .......................................................... 63

Figure 6-3: Program Implementation Checklist ............................................................................................ 74
Foreword vii

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 ix

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 and Myradia Rivera masterfully coordinated production, and Karen Minich 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 xi

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:

• overt intimidation, when someone does something explicitly to intimidate a witness; and

 • 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:

• requesting high bail to put and keep intimidators behind

bars,

• prosecuting intimidators vigorously,

• making a conscientious effort to manage witnesses, and

• 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:

• emergency relocation—placing the witness and his or

her family in a hotel or motel for up to a few weeks;

• short-term or temporary relocation—using a hotel or

motel for up to a year or placing the witness with out-oftown relatives or friends; and

• permanent relocation—moving the witness between

public housing facilities or providing a one-time grant to

reestablish the witness in new private housing.

Because most relocations involve witnesses living in public

housing, prosecutors and police investigators have implemented a variety of approaches to working with local housing authorities to arrange the necessary transfers.

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,
xii Preventing Gang- and Drug-Related Witness Intimidation

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.
The Nature and Extent of Witness Intimidation 1

Chapter 1

The Nature and Extent of Witness

Intimidation

Key Points

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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:
2 Preventing Gang– and Drug–Related Witness Intimidation

• The sister of a defendant slaps a witness outside the

courtroom and says she will kill her if she testifies.

• Two gang associates of a defendant drive by a witness’s

apartment, slash his car tires, and smash the windshield.

• 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:

• 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.

• 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.

“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.”

— J. Ramsey Johnson, Assistant U.S.

Attorney for the District of

Columbia, Superior Court Division

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 gangrelated 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
The Nature and Extent of Witness Intimidation 3

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”).

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 gangrelated violence was needed because

• intimidation associated with gang- and drug-related violent crime is escalating,

• little has been written about gang- and drug-related intimidation, and

• 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).
4 Preventing Gang– and Drug–Related Witness 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.

“The number of gang cases is definitely growing

here, and there is more intimidation than ever

before.”

— Daniel Voogt, Assistant County

Attorney, Drug and Gang Unit, Polk

County (Des Moines, Iowa)

Attorney’s Office

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
The Nature and Extent of Witness Intimidation 5

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:

• 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

• 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.

• 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

“We don’t have any national gangs here in the

District of Columbia, but we do have small neighborhood ‘crews’ involved in drug trafficking that

are often just as ruthless in their willingness to

shoot or murder potential witnesses.”

— David Schertler, Chief, Homicide

Section, U.S. Attorney’s Office,

District of Columbia

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:

• physical violence,

• explicit threats of physical violence,

• implicit threats,

• property damage, and

• courtroom intimidation.

Attempts by gangs or drug dealers to promote communitywide 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.

• 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.

• 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).
6 Preventing Gang– and Drug–Related Witness Intimidation

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.

• According to one homicide prosecutor, a local drugselling 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, driveby shootings, and physical assaults—occur on a daily or

weekly basis.

“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.”

— Daniel Voogt, Assistant County

Attorney, Drug and Gang Unit, Polk

County (Des Moines, Iowa)

Attorney’s Office

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

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

• a profound lack of respect for authority,

• the expectation that their own lives will be brief or will be lived out in prison,

• a sense of powerlessness and social inadequacy that can lead to the formation of gangs or

neighborhood crews,

• the ready availability of very powerful firearms,

• a willingness to use those firearms for almost no reason or in retaliation for the most minimal slight to their

extraordinarily fragile egos, and

• 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 Nature and Extent of Witness Intimidation 7

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.

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 empha-
8 Preventing Gang– and Drug–Related Witness Intimidation

sized; however, they also pointed to four factors that increase the chance that a witness will be intimidated:

• the initial crime was violent;

• the defendant has a personal connection to the witness;

• the defendant lives near the witness; and

• 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.

Sources of Information for This Report

The information presented in this report comes principally from four sources:

• a literature search and a review of the relevant case law;

• 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;

• 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

• 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

• 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.
The Nature and Extent of Witness Intimidation 9

“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.”

— Dennis O’Donnell, Investigator, Des

Moines, Iowa, Police Department

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 communitywide intimidation, the witness may feel endangered from the

moment he or she is aware that the crime is gang- or drugrelated.

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.

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,
10 Preventing Gang– and Drug–Related Witness Intimidation

“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.
The Nature and Extent of Witness Intimidation 11

PART I

Components of a Comprehensive Witness

Security Program

Components of a Comprehensive Witness Security Program
Traditional Approaches to Witness Security 13

Chapter 2

Traditional Approaches to Witness

Security

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:

• requesting high bail,

• prosecuting intimidators vigorously,

• conscientiously managing witnesses, and

• 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

Key Points

• 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.

• 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.

• 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.

• 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.
14 Preventing Gang– and Drug–Related Witness Intimidation

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:

• 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.

• Judges in many jurisdictions operate under strict bond

schedules that typically provide for relatively small bail

levels for intimidation.

• Jail and prison crowding in most jurisdictions weighs

heavily on the minds of judges when setting bail.

• 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
Traditional Approaches to Witness Security 15

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.

“Courts like and respect intimidation charges

and take these cases seriously—sometimes more

seriously than the underlying case.”

— Richard Carroll, Chief, Felony

Waiver Unit, Philadelphia District

Attorney’s Office

Alfred Giannini, assistant district attorney in the San

Francisco District Attorney’s homicide unit, used the California witness intimidation statute in a case involving

Prosecution Strategies

✔ 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.

✔ 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.

✔ 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.

✔ Ask the defendant’s attorney to warn the

defendant against trying to intimidate

witnesses and to explain the possible consequences.
16 Preventing Gang– and Drug–Related Witness Intimidation

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 antiintimidation 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

• reassuring witnesses that they are safe;

• arranging protection;

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.
Traditional Approaches to Witness Security 17

• providing material support, ranging from small amounts

of cash for food to a part-time job; and

• 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

Witness Management Strategies

✔ Contact witnesses as soon as possible and let them know how they can get in touch with you quickly.

✔ 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.

✔ Audiotape or videotape witness’s statements in case he or she recants.

✔ 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.

✔ 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.

✔ 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.

✔ 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.

✔ If true, explain to witnesses that they are not the only ones putting themselves at risk to get the

defendant convicted.

✔ Although the majority of witnesses may have criminal backgrounds or associates and they may be

scorned as “snitches,” treat them with respect and concern.

✔ 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.
18 Preventing Gang– and Drug–Related Witness Intimidation

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:

• It makes it easier to manage witnesses because they feel

reassured by maintaining continuity with the same

prosecutor.

• It precludes the need for police investigators to establish rapport with each new prosecutor and provide each

one all the details of the case.

• 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

Interviewing Strategies

✔ Don’t talk to witnesses at the scene; they

may fear being seen "cooperating" with

the police or prosecutor.

✔ 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.

✔ 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.

✔ 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.
Traditional Approaches to Witness Security 19

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.

“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.”

—Walter Arsenault, Chief, Homicide

Investigation Unit, Manhattan District Attorney’s Office

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

• 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.

• 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)
20 Preventing Gang– and Drug–Related Witness Intimidation

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.

“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.”

— Paul Scoggin, Chief, Appellate

Division, Special Litigation Unit,

Hennepin County (Minnesota)

Attorney’s Office

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 handholding 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
Traditional Approaches to Witness Security 21

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.

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.

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 firebomb 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.
Relocating Intimidated Witnesses 23

Chapter 3

Relocating Intimidated Witnesses

Key Points

• Many police investigators and prosecutors consider confidential relocation to be the single most

reliable protection for witnesses.

• Lack of funds and personnel can make it difficult to use relocation as often as desired.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.
24 Preventing Gang– and Drug–Related Witness Intimidation

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

• 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),

• 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

• 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.

• 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

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.
Relocating Intimidated Witnesses 25

Figure 3–1

Assessing Relocation Options

Report of Intimidation Received from Police,

Prosecutor, or Victim/Witness Program

Program Coordinator Authorizes Risk Assessment

by Police or Prosecutor Investigators

Valid Concern for

Witness Safety

Witness Not in Danger/

Provide Reassurance

Relocation Other Witness Security Option

Emergency Relocation:

Placement in Hotel, Motel,

Safe House, or with Out-ofTown Relative or Friend

Continuing Risk?

Is Witness in 

Public Housing?

End Security

Transfer Within 

Public Housing

Would Witness Qualify

for Public Housing?

What Kind? Place in Short-Term Rental

Housing or Make One-Time

Grant for Permanent

Relocation.

Section 8 Conventional

Public

Housing

Yes No

Yes No

Yes No
26 Preventing Gang– and Drug–Related Witness Intimidation

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.

• New York City. In New York City, the Manhattan

District Attorney’s Office spent approximately $775,000

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.

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

• 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.

• 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.
Relocating Intimidated Witnesses 27

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.)

• 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 ShortTerm 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.

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.
28 Preventing Gang– and Drug–Related Witness Intimidation

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 longerterm 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

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.

✔ 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.

✔ 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.

✔ 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.

✔ 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.
Relocating Intimidated Witnesses 29

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 outof-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

• less likely to return to the jurisdiction due to the expense

and difficulty of travel,

• 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),

• 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

• 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.

“Relocating witnesses with out-of-State relatives

is especially important if you need to protect

juveniles. 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.”

— Lieutenant Earl Sanders, San

Francisco Police Department

Police officers and prosecutors offered the following advice

regarding family- and friend-based relocation:

• 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.

• Check to make sure that the witness is not engaging in

any criminal activity at the new site.

• Before buying the ticket, check with the friend or relative to confirm the person is willing to receive and keep

the witness until trial.

• Screen requests for relocation with distant family members carefully around Christmas and Thanksgiving, to
30 Preventing Gang– and Drug–Related Witness Intimidation

eliminate people who try to exploit the system to obtain

free holiday travel.

• Arrange to send any support payments for minors directly to the out-of-town relative, and provide the first

month’s support payment immediately.

• Reevaluate each placement every six months and end

support after one year, unless there is a continuing

threat.

• 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).

• 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

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.
Relocating Intimidated Witnesses 31

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:

• 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.

• Cooperative agreements at the highest level are essential. For security reasons, one person should be assigned

to witness services transfers, and that person needs highlevel authority to disguise or hide data and to expedite

requests for services.

• 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 perma-
32 Preventing Gang– and Drug–Related Witness Intimidation

nently 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
Relocating Intimidated Witnesses 33

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:

• 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.

• 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.

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

• 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.
34 Preventing Gang– and Drug–Related Witness Intimidation

qualified individuals, both of which can be used in structuring a witness relocation program.

• 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.

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]
Relocating Intimidated Witnesses 35

• 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

• “[f]amily members provided information on criminal

activities to a law enforcement agency,” and

• “[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

“HUD has eased the ability of housing authorities

(HAs) to move residents who are willing to serve

as a witness . . . HUD has made ‘Displacement to

avoid reprisals’ a federal preference for involuntary displacement, allowing HAs to quickly accept

and/or move qualified residents.”

— Joseph Shuldiner, Assistant

Secretary Public and Indian

Housing, U.S. Department of

Housing and Urban Development

This local discretion applies both to HUD’s Public Housing

Program and to its Section 8 program.

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.
36 Preventing Gang– and Drug–Related Witness Intimidation

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

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.
Relocating Intimidated Witnesses 37

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, SingleFamily 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:

• 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.
38 Preventing Gang– and Drug–Related Witness Intimidation

• 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.

• 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.

• 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.

• 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.

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.
Preventing Intimidation in Courtrooms and Jails 39

Chapter 4

Preventing Intimidation in

Courtrooms and Jails

Key Points

• Gang members and associates of defendants often show up in court with the express intention

of discouraging witnesses from testifying.

• 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.

• 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.

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

• Many intimidated witnesses in gang- and drug-related cases who are incarcerated (either as

codefendant or in connection with other crimes) require special protection.

• Providing security for incarcerated witnesses requires a good working relationship between

investigators or prosecutors and correctional administrators.

• 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.
40 Preventing Gang– and Drug–Related Witness Intimidation

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.’”

“If they [gang members] come in with insignia,

it’s a free speech problem. If you try to get them

out through other means, you could be reversed.

You have to feel it out on a case by case basis and

know the criminal law.”

— Judge Stanley Golde, Superior Court,

Alameda County, California

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
Preventing Intimidation in Courtrooms and Jails 41

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.

“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.”

— Victoria Villegas, Chief, Major

Violators Unit, Clark County (Las

Vegas) Attorney’s Office

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.

• 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,

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.
42 Preventing Gang– and Drug–Related Witness Intimidation

shots had been fired at his front porch, and his automobile had been vandalized.1

• 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.

• 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.

• 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.

• 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).

• 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.

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.”
Preventing Intimidation in Courtrooms and Jails 43

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

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.
44 Preventing Gang– and Drug–Related Witness Intimidation

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 allday 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.

• 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.”

• 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.

• 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.

• 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

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.
Preventing Intimidation in Courtrooms and Jails 45

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.

[By executing arrest warrants for gang members

in the courthouse,] “you arrest people you wanted

to get anyway, and you give the impression that

law enforcement controls the courts.”

— Alfred Giannini

Deputy District Attorney, Homicide

Unit, San Francisco County District

Attorney’s Office

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.

• Separation of the witness from the defendant within the

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.”
46 Preventing Gang– and Drug–Related Witness Intimidation

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.

“Witnesses in custody are a real problem; 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.”

— Alfred Giannini, Deputy District Attorney, Homicide Unit, San Francisco

County District Attorney’s Office

• 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.

• 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
Preventing Intimidation in Courtrooms and Jails 47

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.

Taking Innovative Action Against Inmate Intimidation

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

a witness.

• 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.

• 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

• 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.
Reducing Community-wide Intimidation 49

Chapter 5

Reducing 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:

• 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.

• 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 communitywide 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

Key Points

• 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.

• 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).

• Following a high-profile gang or drug crime, intensive policing and prosecution tactics may help to

reduce community-wide intimidation.
50 Preventing Gang– and Drug–Related Witness Intimidation

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.”

“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.”

— Alfred Giannini, Assistant District

Attorney, Homicide Unit, San Francisco District Attorney's Office

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.

Community Outreach

Strategies

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

✔ 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);

✔ 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;

✔ 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.
Reducing Community-wide Intimidation 51

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:

• Prosecutors and police are able to build long-term

relationships with tenant and other community groups,

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:

✔ Use mobile precincts to increase police visibility in gang-dominated areas where community-wide

witness intimidation is intensifying following a high-profile crime.

✔ 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

✔ 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.”

✔ 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.

✔ 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.

✔ 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.
52 Preventing Gang– and Drug–Related Witness Intimidation

and these contacts may lead to increased witness cooperation.

• 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.

• 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.

• 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

• 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”),

• assisting tenant groups in organizing gate checks at

public housing developments (a practice intended to

discourage entry by outside gang members or drugselling organizations), and

• 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 communitywide 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
Reducing Community-wide Intimidation 53

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:

• how to hold a community/tenant meeting,

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

• 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.”
54 Preventing Gang– and Drug–Related Witness Intimidation

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.

• 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.”

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.”
Reducing Community-wide Intimidation 55

• 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 gangrelated 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

coopertive 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.

In each gang-related multiple homicide case,

“[t]he most important thing to do is to bring down

as many gang members as possible—you must

take out the whole thing . . . so you can show that

the police can control the street—and because

you can get a pool of indicted co-defendants who

may decide to testify against each other.”

— Walter Arsenault, Unit Chief,

Homicide Investigation Unit,

Manhattan District Attorney’s Office

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.

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
Developing a Comprehensive Witness Security Program 59

Chapter 6

Developing a Comprehensive

Witness Security Program

Key Points

• 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.

• 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.

• 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.

• Cooperation is especially critical with the corrections system, local public housing authorities, and a

variety of local and Federal social services agencies.
60 Preventing Gang– and Drug–Related Witness Intimidation

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.

• 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.

• 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
Developing a Comprehensive Witness Security Program 61

Figure 6-1

Comprehensive Witness Security Program Model

PROGRAM ADMINISTRATOR

Civilian in District Attorney’s Office, Victim

Services Director, or District Attorney’s

Investigator

_____________________

Role: Coordinate services to witnesses, process all

documentation, control financial information and

requests, and maintain program evaluative data.

CASE WORKER(S)

Assist Program Administrator in coordination and

delivery of witness services. Program contact for

witness.*

HEAD BAILIFF

Coordinate security for

witnesses, special

security needs, and

court configuration for

security.

POLICE ADMINISTRATOR OF

PROGRAM

Coordinate movement and

protective services for

witnesses. Should have

specially trained officers or

a dedicated undercover unit

for witness relocation.

REQUESTS FOR SECURITY

Community Police

Officers, Assistant

District Attorney, or

Police Investigators

DEPARTMENT OF CORRECTIONS

DESIGNATE OF COMMISSIONER

Coordinate security for incarcerated witnesses. * A small program may not need case workers.

CASE INVESTIGATION

District Attorney Investigators or Specially Trained

Police Investigators

____________

Role: Investigate intimidation reports. Liaison to

police. Do risk assessments.

COOPERATIVE AGREEMENTS

VICTIM/WITNESS

SERVICES

In absence of case

workers, provide

contact for witness.

Also provide traditional

witness services.

POINT PERSON:

SOCIAL SERVICES

Coordinate secure

transfer of public

benefits.

POINT PERSON:

HOUSING AUTHORITY

Coordinate, expedite,

and secure transfer of

public and HUD

housing for witnesses.

ORGANIZING COMMITTEE

District Attorney, Chief of Police, Sheriff, Commissioner of

Corrections, Director of Social Services, Director of Housing

Authority, and, as needed, FBI and HUD Representatives.

__________________

Role: Decide program structure; get high-level endorsements

and cooperation. Direct initial problem assessment and annual

program evaluation.

OPERATIONAL TEAM

Designates of District Attorney, Law Enforcement

Agencies, and Victim/Witness Program Coordinator

___________________

Role: Approve applications; oversee operations and

budget. Design program guidelines and evaluative

instruments.
62 Preventing Gang– and Drug–Related Witness Intimidation

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

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

• the district attorney (and possibly the heads of the gang

and homicide units),

• the chief of police,

• the sheriff (or the head of another law enforcement

agency responsible for security in the courts), and

• 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
63 Developing a Comprehensive Witness Security Program

Figure 6–2

Respondents’ Perceptions Concerning the Effectiveness of Principal Approache

Security by Type of Intimidation

The matrix below suggests the general effectiveness of the principal approaches to addressing different types of witness intimidatioreflect conversation will over 100 prosecutors, police investigators, judges, and victim/witness advocates. However, the assessmentwhich may not reflect all local conditions (such as local statues, bail schedules, or jail overcrowding), or the nature of a particular case or weaken a particular approach in a particular jurisdiction, with a particular witness, or with a particular intimidation threatassessments provide suggestions of which approaches may help either to prevent intimidation or to provide witnesses with enough rethem to testify.

Type of Intimidation

Type of Anti- 

Intimidation Strategy Overt Implicit Imagined In the Courtroom In the Jail 

high bail for defendant poor fair poor fair poor vigorous prosecution of intimidators fair fair poor fair poor (including vertical prosecutionconscientious witness good good excellent good poor managementvictim/witness assistance programs poor good good fair poor temporary relocation excellent excellent excellent NA NA permanent relocation excellent excellent excellent NA NA courtroom protection excellent good good good NA jail protection NA NA NA NA good communitywide outreach (including fair good good fair poor community-based policingand prosecution)
64 Preventing Gang– and Drug–Related Witness Intimidation

nonprosecutor with a law enforcement background. There

are two common explanations for this approach:

• 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.

• 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

Assessing the Problem

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

problem.

• 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?

• Is witness intimidation linked with a specific type or types of crimes? For example, is intimidation

common in gang- or drug-related crimes?

• Are important cases being lost due to witness intimidation?

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

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

• Are any other agencies currently providing services to intimidated witnesses? What advice and

information can they offer?

• Are inmates or prison gangs engaging in intimidation from behind bars against witnesses outside or

within correctional facilities?

• 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?

• How could intimidated witnesses be reassured without being relocated? How many witnesses would

be satisfied with this sort of witness management approach?

• Would witnesses need to leave their neighborhoods permanently or only for a period before and

during the trial?

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

• What should the first steps in our action plan be?
Developing a Comprehensive Witness Security Program 65

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

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.

• 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?

• 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?

• 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?

• 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?

• 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?

• Is legislative reform or program funding needed from State legislators or local officials? Who will be

responsible for seeking any needed legislative support?
66 Preventing Gang– and Drug–Related Witness Intimidation

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:

• to review all requests for witness security services,

• to oversee program operations, and

• 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 teamstyle 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

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:

• The importance of the case. Most protected witnesses are involved in homicide, multiple homicide, or

large drug cases.

• 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.

• A risk assessment suggesting that the threat to the witness is real or, if the witness is frightened by nonexplicit, 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.

• 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.
Developing a Comprehensive Witness Security Program 67

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

• information pertaining to cases prosecuted with the

assistance of protected witnesses (see the box “Evaluation Criteria”);

• program expenditure information, including an accounting of all costs borne by other departments and shared

resources used by the program;

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

• 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

• receiving and processing requests for security, and

• 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
68 Preventing Gang– and Drug–Related Witness Intimidation

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 adminEvaluation 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

• number of witnesses protected

• number of cases receiving funding

• number of dispositions reached

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

• number of dismissals

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

• number of acquittals

• number of sentences

• overall conviction rate for witness protection cases

• trial conviction rate for witness protection cases

Program Expenses

• witness living expenses (food and other necessities)

• lodging expenses

• transportation

• protective custody

• 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.
Developing a Comprehensive Witness Security Program 69

istrator, 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.

• 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.

• 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.

• 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

• the escort and transportation of witnesses in a secure

manner,

• the swift response of officers to calls for help from

intimidated witnesses, and,

• 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
70 Preventing Gang– and Drug–Related Witness Intimidation

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

• 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),

• making sure that search warrants are properly drafted,

and

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.
Developing a Comprehensive Witness Security Program 71

• 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.

• 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.

• 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:

• a systematic approach in which pertinent agency heads

(or their representatives on the planning committee)

formally designate contact persons within their respective agencies;

• the designation of a witness security coordinator who, in

turn, identifies contact persons within each participating

agency; or

• 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.

• 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.”

• 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.
72 Preventing Gang– and Drug–Related Witness Intimidation

• 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

Reasons for Using Memorandums of Understanding

• 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.

• 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.

• 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.

• 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.

• Administrators can use a written document to explain that their hands are tied if third parties object to

the new arrangement.

• A written document reduces misunderstandings and uncertainty about each party’s role and responsibilities.

• Documentation can also be used to explain the agreement to new staff and authenticate the

importance of the arrangement.

with individuals there, but they change, so we really need an

agreement from the top down about how we can cooperate.”

“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.”

— Micky Cook, Director, Hennepin

County (Minnesota) Victim Witness

Program

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
Developing a Comprehensive Witness Security Program 73

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”).

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

• understand their role in the program,

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

• 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:

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

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

• 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.

The specific agencies with which agreements are needed will

vary from jurisdiction to jurisdiction, but all agreements

should identify

• the services each agency will provide,

• the staff and funding each agency will make available to

the effort, and

• the allowable expenses or services.
74 Preventing Gang– and Drug–Related Witness Intimidation

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).

Figure 6-3

Program Implementation Checklist

1. Form the Organizing Committee

Perform problem assessment

Identify appropriate responses

Identify needed and available resources

Get high-level endorsements from all key agencies

Name point people in all cooperating agencies

Decide on the composition of the operational team

2. Convene the Operational Team

Prepare memorandums of understanding

Draft program guidelines and expense forms

Identify and prepare to collect program evaluation data

3. Name a Program Administrator

Notify all agencies of procedures for initiating requests for witness security

Coordinate with investigating agency or unit (dedicated police unit or district attorney

 investigators)

4. Review Program Operations and Renew Memorandums of Understanding Annually

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.
Legal Issues 75

Chapter 7

Legal Issues

Key Points

• While laws and rules of evidence vary from State-to-State, prosecutors are concerned about

many of the same legal issues.

• 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.

• Gang suppression legislation is considered a useful adjunct to the witness protection efforts by

some prosecutors.

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

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

• 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.

• 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:

• legal barriers to preventing courtroom intimidation,

including

— exclusion of the public from the courtroom,
76 Preventing Gang– and Drug–Related Witness Intimidation

— using hearsay testimony from law enforcement

officers,

— impeaching inconsistent witness testimony, and

— keeping witness and jury information confidential;

• anti-intimidation legislation;

• gang suppression statutes;

• laws to combat community-wide intimidation; and

• 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

• 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

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

• 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

• 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

• 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),

• limiting the number of witnesses requesting exclusions,

• limiting the percentage of time that court proceedings

are conducted before a restricted audience,

• 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

• 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,
Legal Issues 77

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

• the spectator to be removed is actually intimidating the

witness,

• the witness will not be able to give full, free, and

complete testimony unless the spectator is removed, and

• 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

• perpetuate the testimony of a witness who might be

unavailable for trial,

• memorialize testimony of a witness who might change

his or her testimony at trial,

• test the credibility of a witness whose story might be

open to question,

• 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,

• obtain the testimony of a witness given immunity,

• test the witness’s ability to identify a defendant rather

than waiting for trial, or

• 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
78 Preventing Gang– and Drug–Related Witness Intimidation

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
Legal Issues 79

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.

• After the gang execution of a police officer in 1993, the

prosecutor in Hennepin County (Minneapolis) deliberately introduced a somewhat archaic accomplice-afterthe-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).

• 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.

• 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.)

• 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

• 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
80 Preventing Gang– and Drug–Related 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 Issues 81

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

• 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 (socalled 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 countywide 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.

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.
82 Preventing Gang– and Drug–Related Witness Intimidation

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 drugrelated 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 orBaltimore’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.
Legal Issues 83

ders 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.

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

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.

• 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.

• 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.

• 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.

• 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.
84 Preventing Gang– and Drug–Related Witness Intimidation

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

• a report to the police agency by a third party of a specific

threat to the witness,

• a promise by the prosecutor or a police officer to provide

added security to a threatened victim or witness,

• a promise by the police department to alert the victim to

the release from jail of a known intimidator, or

• 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 Angeles43 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
Legal Issues 85

$1.2 million in damages. Wallace v. the City of Los Angeles44

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

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:

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

✔ Share risk assessment data with the witness—make sure he or she has a realistic understanding

of dangers and security options.

✔ Never promise more security than you expect to provide, and clear any promises first with

whoever has the authority to comply with the promises.

✔ 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.

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

✔ 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.

✔ 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.
86 Preventing Gang– and Drug–Related Witness Intimidation

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

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.
Legal Issues 87

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.

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).

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).
88 Preventing Gang– and Drug–Related Witness Intimidation

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., “AntiGang 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.
Legal Issues 89

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).
Sources of Help 91

Chapter 8

Sources of Help

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

Key Points

• Some written materials, organizations, and funding sources are available to provide assistance

with witness protection.

• 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.
92 Preventing Gang– and Drug–Related Witness Intimidation

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

• 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.

• State-level victim/witness assistance funds.

• Local drug-related asset forfeiture programs.

• Cooperative work with the FBI, local U.S. attorney, or

Drug Enforcement Administration (DEA).
Sources of Help 93

• Borrowed equipment from the U.S. Marshals Service,

the FBI, or the military.

• 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 VictimWitness 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)
94 Preventing Gang– and Drug–Related Witness Intimidation

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)
95 Sources of Help

Individuals With Expertise in Witness Security

Name Title or Position Address Telephone Fax 

Number Number Experience

Arsenault, Walter Unit Chief, Homicide Manhattan District Attorney's Office (212) 335–9262 (212) 335–9293 

Investigation Unit One Hogan Place 

New York, NY 10013

Cleveland, John Acting Chief, Witness U.S. Marshals Service (202) 307–9150 (703) 603–0354 

Services Division 600 Army Navy Drive

Arlington, VA 22202

Darnall, Kenneth J. Special Agent in Charge, U.S. Department of Housing and (202) 708–0387 (202) 708–7718 

Capital District Urban Development (Darnall) 

451 7th Street, SW (202) 708–0390 Room 3162 (HUDWashington, DC 20410 information)

Dupuy, John Edward Special Agent U.S. Department of Housing and (415) 436–8108 (415) 436–8114 

 Urban Development Office of Inspector General (OIG) for Investigation450 Golden Gate AvenueP.O. 36003Room 8-5139San Francisco, CA 94102-3448
96 Preventing Gang– and Drug–Related Witness Intimidation Individuals With Expertise in Witness Security Genelin, Michael Head Deputy Criminal Courts Building (213) 974–3901 (213) 687–3128 

Hard Core Gang Unit 17th Floor, Room 1118 Los Angeles District Attorney's Office 210 W. Temple Los Angeles, CA 90012 

Giannini, Alfred Assistant District Attorney San Francisco District Attorney's (415) 553–1780 (415) 553–1539 

Office Homicide Unit 850 Bryant Street Room 322 San Francisco, CA 94103 Isdell, G. Lee National Coordinator Office of the Inspector General (202) 708-0430 (202) 708–1354 

Anti-Drug/Violent U. S. Department of Housing and 

Crime Initiative Urban Development 

451 7th Street, SW Suite 8280Washington, DC 20410

Jessamy, Patricia C. State's Attorney, The Clarence Mitchell Courthouse (410) 396–4000 (410) 539–5215 

City of Baltimore 110 N. Calvert Street

Baltimore, MD 21202 

Rice, James Special Agent Federal Bureau of Investigation (202) 252–7801 (202) 252–7545 

Violent Crimes and Gang Unit 1900 Half Street, SW Washington, DC 20535 

Name Title or Position Address Telephone Fax 

Number Number Experience
97 Sources of Help

Individuals With Expertise in Witness Security

Name Title or Position Address Telephone Fax 

Number Number Experience

Sanders, Earl Lieutenant Central Warrant Bureau (415) 553–1780 (415) 553–1539 

San Francisco Police Department850 Bryant StreetRoom 460San Francisco, CA 94103

Schell, Barbara Victim/Witness Program Victim Witness Assistance Center (702) 455–4204 (702) 455–5101 

Coordinator 200 South Third Street 

Suite 545Las Vegas, NV 89155–2220

Schwartz, Ted Program Integrity Housing Authority of Alameda County (510) 727–8519 (510) 727–8554 

Administrator 22941 Atherton Street 

Hayward, CA 94541–6613 

Tellis, Blaine Investigator Criminal Investigation Division (515) 237–1515 (515) 237–1642 

Special Investigations UnitDes Moines Police Department25 East First StreetDes Moines, IA 50309

Voogt, Daniel Assistant County Attorney Drug and Gang Unit (515) 286–2120 (515) 286–3428 

Polk County Attorney's Office Third Floor Midland Building206 6th Avenue Des Moines, IA 50309–4025
Appendix A 99

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;

d. 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?
100 Preventing Gang– and Drug–Related Witness Intimidation

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.
Appendix A 101

• 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.

• The chief executive officer and his/her

designee have the authority to approve

and make payment of witness protection

funds.

• 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:

• This fund may only be used in the absence of another

witness protection funding source;

• Cash allotments to witnesses or law enforcement are not

allowable without documentation of an allowable expense;

• The witness protection fund and the regular grant allocation must be kept separate, each with its own account

within the general ledger.

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

• 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;

• Grant funds must not be commingled with other funds;

• 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:

• Witnesses or their families who have received documented threats or have been assaulted as a direct result

of their participation as a witness.

• The project must document information that indicates

the witness or the witness’s immediate family are in

present danger.

Additionally, the following must occur:

• The witness must be a willing participant in providing

testimony in a criminal or juvenile court case.

• 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:

• To pay cash allotments to witnesses or law enforcement;

• To pay for expenses, goods or services for incarcerated

witnesses;
102 Preventing Gang– and Drug–Related Witness Intimidation

• To pay informants for testimony, reimburse informants

for expenses, or to purchase goods or services for

informants;

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

• 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;

• To pay or reimburse witnesses for public or private

transportation not related to relocating the witness for

protective reasons;

• To pay or reimburse expenses associated with providing

security, police escorts, or policy vehicles,

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

• To pay or reimburse long-distance telephone bills;

• 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.;

• 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:

• 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.

• 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.

• 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 A 103

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
104 Preventing Gang– and Drug–Related Witness Intimidation

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 Deten-
Appendix A 105

tion 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.
106 Preventing Gang– and Drug–Related Witness Intimidation

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.
Appendix A 107

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.
108 Preventing Gang– and Drug–Related Witness Intimidation

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.
Appendix A 109

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.
110 Preventing Gang– and Drug–Related Witness Intimidation

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 A 111

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).
Appendix B 113

Appendix B

Sample Program Forms

Appendix B1

Witness Assistance Request Form

Alameda County District Attorney’s Office

Date: __________________

I. REQUESTING INSPECTOR

Name:_______________________________________________________________________________________________

Phone:__________________________________________________________________________________________

II. CASE INFORMATION

Briefly describe the case in which the witness is testifying.

Has a complaint been filed? Yes____ No____

Case #:_____________________ Court:______________________ DDA:_________________________________

In Custody

Defendant(s) Name(s) DOB PFN Charges Filed Yes/No

________________________________ __________ ___________ _______________ _________

________________________________ __________ ___________ _______________ _________

________________________________ __________ ___________ _______________ _________

List person(s) previously protected/assisted relative to this case.

Name DOB

______________________________________________ _________________

______________________________________________ _________________

III. THREAT INFORMATION

Circle the degree of threat to the witness. Low 1 2 3 4 5 High.

Explain how the threat was delivered and who threatened the witness.

Explain how the threat was substantiated. (Attach any police or investigative reports substantiating threats)
114 Preventing Gang– and Drug–Related Witness Intimidation

IV. WITNESS INFORMATION

Witness(es) Name 1)_____________________________ 2) ________________________________

AKA: _____________________________ _______________________________

DOB: _____________________________ _______________________________

PFN/CII: _____________________________ _______________________________

CDL: _____________________________ _______________________________

List family and/or household members who will also be protected:

Name DOB Relationship to Witness

______________________________________________ __________ ______________________________

______________________________________________ __________ ______________________________

______________________________________________ __________ ______________________________

How has the witness’ credibility been previously established and can he/she provide competent,

reliable testimony?

What is the importance and type of the witness’ testimony?

Can you go to trial without the witness’ testimony? Yes____ No____

V. WITNESS ASSISTANCE FUND

Period of time that assistance is needed (21 day limit):

Beginning date:_____________________ Ending date:_____________________

Has witness been relocated? Yes____ No____

Estimated amount needed:

Relocation costs: $___________

(A one-time fee for travel by _____________ to _____________________________)

 (air, car, bus, train) (location)

Per Diem (lodging and food):$________/day for__________days.

Note: Per Diem costs may not exceed $79/day/witness;

$119/day/witness & spouse; $26/day for each child.

Total Amount: $__________
Appendix B 115

Appendix B2

Organized Crime Intelligence Report

Des Moines Police Department
116 Preventing Gang– and Drug–Related Witness Intimidation

Appendix B3

Witness Security Program Application

Philadelphia District Attorney’s Office

Date: ______________

I. BIOGRAPHICAL

Name: _________________________________________ Alias:________________________________________

Address:_______________________________________

______________________________________________

Phone:_________________________________________ Sex: M______ F ______

SS #:__________________________________________

D.O.B.: ________________ Age: _____________ Race: ________________

Weight: ________________ HT.:______________ Eyes: ________________ Hair: ____________

Address History (List all prior addresses):

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

________________________________________________________________________________________________________________________________________________

________________________________________________________________________________________________________________________________________________

________________________________________________________________________________________________________________________________________________

________________________________________________________________________________________________________________________________________________

II. FAMILY INFORMATION (GIVE FULL NAMES)

Spouse/Living Partner: ____________________________________________________________________________

Address:________________________________________________________________________________________

Phone #: ________________________________________________________________________________________

Children & Ages: _________________________________________________________________________________

Address:_________________________________________________________________________________________

School Address:__________________________________________________________________________________

Parents: ________________________________________________________________________________________

Address:_________________________________________________________________________________________

Phone #: __________________________________________________________________________________________

Brothers/Sisters: _________________________________________________________________________________

Address: _________________________________________________________________________________________
Appendix B 117

Phone # : __________________________________________________________________________________________

Aunts/Uncles: _____________________________________________________________________________________

Address: __________________________________________________________________________________________

Phone #: _________________________________________________________________________________________

Parents of Spouse/Living Partner: ___________________________________________________________________

Address: _________________________________________________________________________________________

Phone #: _________________________________________________________________________________________

Closest Friends (At least 3): ________________________________________________________________________

Address:__________________________________________________________________________________________

Phone #: _________________________________________________________________________________________

III. EMPLOYMENT HISTORY

Employer:________________________________________________________________________________________

Address: _________________________________________________________________________________________

Phone: __________________________________________________________________________________________

Spouse/Partner Employer : ____________________________________________________________________________

Address:_________________________________________________________________________________________

Phone: ___________________________________________________________________________________________

Provide names & address of all your employers and spous/partner's employers over last twenty (20) years.

__________________________________________________________________________________________________

________________________________________________________________________________________________

________________________________________________________________________________________________

_________________________________________________________________________________________________

IV. SUPPORT HISTORY

Provide all sources of income for the past ten (10) years, including welfare, gift, loans, illegal sources, etc. for you and your

spouse/partner.

__________________________________________________________________________________________________

________________________________________________________________________________________________

________________________________________________________________________________________________
118 Preventing Gang– and Drug–Related Witness Intimidation

If no income for past ten (10) years, how were you able to live?

__________________________________________________________________________________________________

________________________________________________________________________________________________

________________________________________________________________________________________________

_________________________________________________________________________________________________

V. MEDICAL BACKGROUND

Problems: ________________________________________________________________________________________

Medication: _______________________________________________________________________________________

Doctor(s) Name: ___________________________________________________________________________________

Address: __________________________________________________________________________________________

VI. CRIMINAL JUSTICE HISTORY

Ever arrested in Philadelphia? _________________________________________________________________________

If yes, what's your Philadelphia photo number? _____________________________________________________________

What is FBI number? _______________________________________________________________________________

Ever arrested outside Philadelphia? ____________________________________________________________________

If yes, where: _____________________________________________________________________________________

When? __________________________________________________________________________________________

For what? _______________________________________________________________________________________

Disposition of case(s): ______________________________________________________________________________

Ever a victim or witness prior to this case? _____________________________________________________________

Where? __________________________________________________________________________________________

When? __________________________________________________________________________________________

Which case? ______________________________________________________________________________________

VII. RELOCATION POSSIBILITIES

Who must relocate with you? ___________________________________________________________________________

______________________________________________________________________________________________________________

Indicate if there is any relative or close friend whom you can trust and with whom you can live with in Philadelphia.

_________________________________________________________________________________________________

_________________________________________________________________________________________________
Appendix B 119

Any relative or friend outside Philadelphia? _______________________________________________________________

Can the relative/friend afford financial support for you and your family?__________________________________________

IX. WITNESS INTIMIDATION HISTORY

As a result of being a witness in this case, what threats, retaliation, etc. have you experienced so far:

____________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________

If no threats, retaliation so far, what are your expectations of such intimidations?

____________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________

What is the basis for you expectation of intimidation?

____________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________

Name(s) of intimidators:

____________________________________________________________________________________________________________________________

____________________________________________________________________________________________________________

Open Case Name: __________________________________________________________________________________

Assigned Detective:________________________________________________________________________________

LT. Detective: _____________________________________________________________________________________

VERIFICATION

I hereby verify the facts set forth in this witness security application are true and correct to the best of my knowledge,

information and belief, and this verification is made subject to the penalties for unsworn falsification to authorities under

PA Crime Code Section 4904 (18 PA C.S.A. S.4904).

______________________________________________ ____________________________________

Witness’ Signature Applicant’s Signature

______________________________________________ ____________________________________

Date Date
120 Preventing Gang– and Drug–Related Witness Intimidation

Appendix B4

Victim Contact Sheet

Intimidation Report

Philadelphia District Attorney’s Office

Date: ___________________________ Defendent:___________________________________________

Victim: ____________________________ Petition # :_____________________________________________

____________________________ M.C. # : _______________________________________________

____________________________ Type of Crime: _________________________________________

Age: ____________________________ Next Listing Date: _____________________________________

Sex: ____________________________

Race: ____________________________

Referred by: _________________________

Problem (Briefly):__________________________________________________________________________________

________________________________________________________________________________________________________

________________________________________________________________________________________________________

________________________________________________________________________________________________________

WHO:

Intimidator(s):___________________________________ Defendant : _____________________________________

______________________________________________ Juvenile_______ Adult_______

______________________________________________

______________________________________________ Defendant's Friend:_______________________________

Defense Attorney:_______________________________

Does C/W know intimidator? Yes____ No____

Can C/W identify intimidator? Yes____ No____

What type of intimidating conduct? __________________________________________________________________

Physical force or violence? Yes____ No____

Threats of force or violence? Yes____ No____

Acts of coercion toward C/W or third party veiled threats? Yes____ No____
Appendix B 121

Acts of harassment: ________________________________________________________________________________

______________________________________________________________________________________________________________________

Telephone Communication? Yes____ No____

Written Communication? Yes____ No____

Signed? Yes____ No____

Loitering with no purpose? Yes____ No____

Offers of money or other pecuniary benefits to withdraw charges? Yes____ No____

WHEN:

Pre-Preliminary Hearing ___________________

Preliminary Hearing ___________________

Pre-Trial ___________________

During Trial ___________________

Post Trial ___________________

Pre-Sentencing ___________________

Post-Sentencing ___________________

WHERE:

In or Near Courtroom ___________________

At C/W’S Home ___________________

On Street ___________________

At Place of Employment ___________________

Other ___________________

Any witnesses? ________________________________________________________________________________

STATEMENT:

Statement taken by D.A.D.? Yes____ No____

If No, why not?______________________________________________________________________________

________________________________________________________________________________________________

Which D.A.D.? ____________________________________________________________________________________

Assigned A.D.A.? _________________________________________________________________________________

Unit: __________________________________________ Chief:________________________________________

Judge:__________________________________________

Probation Officer: ________________________________

Decision of Deputy D.A.

_______________________________________________________________________________________________

______________________________________________________________________________________________________________

Other Alternatives
122 Preventing Gang– and Drug–Related Witness Intimidation

Appendix B5

Witness Protection Program Assistance Request

Los Angeles County

CONFIDENTIAL

WITNESS PROTECTION PROGRAM ASSISTANCE REQUEST

1. REQUESTING AGENCY

Date: _________________________________________

Department: ___________________________________

Officer/Agent: _________________________________

DR/FILE #: ___________________________________

2. DESCRIPTION OF WITNESS(ES)

Name: _______________________________________

Aliases: _______________________________________

DOB: _______________________________________

Description of other family and/or household members to be given witness protection assistance (include name, DOB,

CDL, addresses, and relationship to witness)

_______________________________________________________________________________________________________________________________________

___________________________________________________________________________________________________________________

_________________________________________________________________________________________________________

3. Describe the circumstances of the crime(s) committed in this case and how the witness is involved (note any special

significance to the deft(s) or the nature of their criminal activity such as street gang involvement, organized crime

affiliation.)

____________________________________________________________________________________________________________________

__________________________________________________________________________________________________

_________________________________________________________________________________________________

4. Specifically, what will this witness testimony be and its importance to the case (e.g., eyewitness to murder and under what

circumstances, co-conspirator and nature of involvement)

____________________________________________________________________________________________________________________

______________________________________________________________________________________________________

_______________________________________________________________________________________________

Address: _____________________________________

______________________________________

Phone #: _____________________________________

POB: _______________________________________

CII: _______________________________________

CDL: _____________________________________

SUSPENSE DATE
Appendix B 123

5. Has this witness or family been threatened?

By Whom: _____________________________________

Describe the threats, how they were delivered, and how they were substantiated by the

requesting agency:

__________________________________________________________________________

_________________________________________________________________________________

_______________________________________________________________________________________

Do the deft(s) or their associates know where the witness lives, works, or goes to school?

6. If no threats, why do you feel this witness is endangered and must be relocated?

__________________________________________________________________________

____________________________________________________________________________________________________________

______________________________________________________________________________________

Have funds been requested on this case before?

If so, name of witnesses and date funds were requested.

__________________________________________________________________________

7. Case legal # _____________________________

Deft. Name: _____________________________ _______________________

8. Reliability of the witness (has the witness’ reliability been previously established in court, can

witness provide credible, competent testimony, etc.)

__________________________________________________________________________

__________________________________________________________________________

9. Willingness of witness to testify without provided protection:

________________________________________________________________________

10. Is the witness/family currently receiving financial assistance from any governmental agency?

It is hereby acknowledged and agreed these funds are requested for the emergency relocation of

the witness(es) for the reasons outlined in this request. I understand only those expenses approved

below, in the indicated amounts are reimbursable only through the subsequent submittance of

original requests, unless otherwise indicated in this agreement. No other substitution of expenses

is allowed. I have received approval from my department to seek these funds from

_________________________________(supervisor).

Signed _______________________________

FOR OFFICIAL USE ONLY - DO NOT WRITE BELOW THIS LINE

Agreement between parties as how the funds will be utilized and amount(s) authorized:

Total amount approved:_____________

YES NO

YES NO

YES NO

Charges: _______________________

YES NO

Date ___________________________

Approving Authority: ______________ Date _________
124 Preventing Gang– and Drug–Related Witness Intimidation

WITNESS PROTECTION PROGRAM ASSISTANCE REQUEST

AGREEMENT CHANGES/MODIFICATIONS

NEW SUSPENSE DATE,

IF APPLICABLE

Nature of requested change or modification:

____________________________________________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

____________________________________________________________________________________

Q Change(s) approved. To be carried out within the original amount authorized under above criteria.

Q Change(s) approved. An additional $ _________ is authorized to be spent within the above criteria.

WITNESS PROTECTION PROGRAM ASSISTANCE REQUEST

AGREEMENT CHANGES/MODIFICATIONS

NEW SUSPENSE DATE,

IF APPLICABLE

Nature of requested change or modification:

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

_________________________________________________________________________________

Q Change(s) approved. To be carried out within the original amount authorized under above criteria.

Q Change(s) approved. An additional $ ________ is authorized to be spent within the above criteria.

CASE #

DATE:

Person Requesting: _________________________

 Phone #: _________________________

Approving Authority: _______________________

DATE:

Person Requesting: _________________________

 Phone #: _________________________

Approving Authority: ______________________
Appendix B 125

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 AntiDrug 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.

• a building where people deal

drugs

• a building where drugs are stored

in large quantities, or

• a building where people gather

to take drugs.

WHO CAN SUE?

A drug nuisance suit can be brought

by:

• a non-profit community association

• the State’s Attorney’s Office, or

• the City Solicitor’s Office

WHO CAN BE SUED?

The law allows a suit against either:

• OWNER of the property

• TENANTS who are using the

property for drug dealing, or

• BOTH

WHAT DOES THE LAW ALLOW

US TO DO?

In a drug nuisance suit, the court

has the power to:

• order the owner to submit a plan

of correction to ensure that the

drug dealing stops;

• order a tenant to vacate the

property within 72 hours, if the

tenant knew about the drug

activity;

• order a tenant to cease any drug

related activity and evict the

tenant if the tenant continues;

• any other relief the court thinks

necessary.

HOW DO WE FILE SUIT?

• Determine the ownership of

properties;

• Collect information submitted by

community associations;

• Document related drug activity;

• Notify landlord and/or tenant; and

• Formalize a civil suit.

RESPONSIBILITIES OF THE

COMMUNITY ORGANIZATION

• Organize community effort in

your neighborhood;

• Identify property where drugs are

being stored, used and/or sold;

• Maintain and document a daily

log of activity;

• Report activity to your

neighborhood representative; and

• 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:

• Providing the necessary training;

• Supplying technical assistance;

• Furnishing legal support;

• Supporting your neighborhood

effort; and

• Monitoring results.

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Appendix C 127

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, § 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 § 12-

30-3.

Historyof section.

P.L. 1990, ch. 331, § 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
128 Preventing Gang– and Drug–Related Witness Intimidation

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, § 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 § 12-30-3.

History of Section.

P.L. 1990, ch. 331, § 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, § 3; P.L. 1990, ch. 327, § 3; P.L. 1990,

ch.331, § 1.

Compiler’s Notes. This section was enacted by three Acts

(P.L. 1990, ch. 326, § 3; P.L. 1990, ch. 327, § 3; P.L. 1990,

ch. 331, § 1) passed by the 1990 General Assembly.

Chapters 326, § 3 and 327, § 3 both enact identical versions

of this section. However, the version enacted by P.L. 1990,

ch. 331, § 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 § 43-2-2.1, has determined that the

enactment of this section by P.L. 1990, ch. 326, § 3, and

P.L. 1990, ch. 327, § 3, supercede the enactment by P. L.

1990, ch. 331, § 1. The section is set out above as enacted

by P.L. 1990, ch. 326, § 3, and P.L. 1990, ch. 327, § 3.

As enacted by P.L. 1990, ch. 326, § 3; P.L. 1990, ch. 327,

§ 3; and P.L. 1990, ch. 331, § 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, § 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.
Appendix C 129

History of Section.

P.L. 1990, ch. 326, § 3; P.L. 1990, ch. 327, § 3; P.L. 1990,

ch. 331, § 1.

Compiler’s Notes. This section was enacted by three Acts

(P.L. 1990, ch. 326, § 3; P.L. 1990, ch. 327, § 3; P.L. 1990,

ch. 331, § 1) passed by the 1990 General Assembly

Chapters 326, § 3 and 327, § 3 both enact identical versions

of this section. However, the version enacted by P.L. 1990,

ch. 331, § 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 § 43-2-2.1,

has determined that the enactment of this section by P.L.

1990, ch. 326, § 3, and P.L. 1990, ch. 327, § 3, supercede

the enactment by P.L. 1990, ch. 331, § 1. The section is set

out above as enacted by P.L. 1990, ch. 326, § 3, and P.L.

1990, ch. 327, § 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, § 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, § 3; P.L. 1990, ch. 327, § 3; P.L. 1990,

ch. 331, §

Compiler’s Notes. This section was enacted by three Acts

(P.L. 1990, ch. 326, § 3; P.L. 1990, ch. 327, § 3; P.L. 1990,

ch. 331, § 1) passed by the 1990 General Assembly.

Chapters 326, § 3 and 327, § 3 both enact identical versions

of this section. However, the version enacted by P.L. 1990,

ch. 331, § 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 § 43-2-2.1, has determined that the

enactment of this section by P.L. 1990, ch. 326, § 3, and

P.L. 1990, ch. 327, § 3, supercede the enactment by P.L.

1990, ch. 331, § 1. The section is set out above as enacted

by P.L. 1990, ch. 326, § 3, and P.L. 1990, ch. 327, § 3.
130 Preventing Gang– and Drug–Related Witness Intimidation

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, § 4, eff. in 60 days.

§ 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, § 4, effective in 60 days.

Library References

Obstructing Justice - 1,4. C.J.S. Obstructing Justice or

Governmental Administration §§ 2 to 4, 9, 16, 17, 20, 21.

§ 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.
Appendix C 131

1980, Dec. 4, P.L. 1987, No. 1987, § 4, effective in 60

days.

Cross References

Limitation of prosecutions for crime committed under this

section, see 42 Pa.C.S.A. § 5552.

§ 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, § 4, effective in 60 days.

Cross References

Limitation of prosecutions for crime committed under this

section, see 42 Pa.C.S.A. § 5552.

§ 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, § 4, effective in 60 days.

§ 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, § 4, effective in 60 days.

§ 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
132 Preventing Gang– and Drug–Related Witness Intimidation

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, § 4, effective in 60 days.

Cross References

Conditions of bond, see Pa.R.Crim.P., Rule 4014, 42

Pa.C.S.A.
Appendix C 133

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

§186.27.

§ 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, § 1. eff. Sept. 26, 1988; Stats.

1988, c. 1256, § 1 eff. Sept. 26, 1988.)

§ 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 gangrelated 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, § 1, eff. Sept.

26, 1988: Stats. 1988, c. 1256, § 1, eff. Sept. 26, 1988.)

§ 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 con-
134 Preventing Gang– and Drug–Related Witness Intimidation

victed 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. Moneylaundering, 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.
Appendix C 135

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, § 5.1, operative Jan. 1, 1993. Amended by

Stats. 1991, c. 201 (A.B.1135), § 1, operative Jan. 1,

1993; Stats.1991, c. 661 (A.B.1866), § 2, operative Jan.

1, 1993; Stats.1993, c. 601 (S.B.724), § 1; Stats.1993,

c. 610 (A.B.6), § 3, eff. Oct. 1, 1993; Stats.1993, c.611

(S.B.60), § 3, eff. Oct. 1, 1993; Stat.1993, c. 1125

(A.B.1630), § 3; Stats.1994, c. 47 (S.B.480), § 1, eff.

April 19, 1994; Stats.1994, c. 451 (A.B.2470), § 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 § 12021.5.

Juvenile court rules related to this section, see California

Rules of court, rule 1404.

§ 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,
136 Preventing Gang– and Drug–Related Witness Intimidation

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, § 1,

eff. Sept. 26, 1988. Amended by Stats.1990, c. 223

(A.B.3485), § 1; Stats. 1991, c. 260 (S.B.809), § 1.)

§ 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, § 1, eff. Sept. 26, 1988; Stats.

1988, c. 1256, § 1, eff. Sept. 26, 1988).

§ 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, § 1, eff. Sept. 26, 1988;

Stats.1988, c. 1256, § 1, eff. Sept. 26, 1988.)

§ 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, § 1, eff.

Sept. 26, 1988: Stats.1988, c. 1256, § 1 eff. Sept. 26, 1988.)

§ 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 mem-
Appendix C 137

bers 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,

§ 1.)

§ 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, § 1, eff. Sept. 26,

1988; Stats.1988,c. 1256, § 1, eff. Sept. 26, 1988. Amended

by Stats.1991, c. 201 (A.B.1135), § 2.)

§ 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), § 1.)
138 Preventing Gang– and Drug–Related Witness Intimidation

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
Appendix D 139

Appendix D1

New York District Attorney's Office

WITNESS PROTECTION PROGRAM

Statistical Summary

July 1, 1994 through December 31, 1994

3rd & 4th

QTRS YTD

1. Number of Witnesses Protected 103 134

2. Number of Cases Receiving Funding 37 64

3. Number of Dispositions Reached 12 22

4. Number of Convictions by Plea to Top Charge 1 6

Number of Convictions by Plea to Lesser Charge 4 7

Total Convictions By Plea 5 13

5. Number of Dismissals 1 1

6. Number of Convictions by Plea to Top Charge 4 6

Number of Convictions by Plea to Lesser Charge 2 2

Total Convictions By Trial 6 8

7. Number of Acquittals 0 0

8. Number of Sentences 11 18

9. Overall Conviction Rate for Witness Protection Cases 92% 95%

10. Trial Conviction Rate for Witness Protection Cases 100% 100%

Appendix D

Sample Evaluative Reports
140 Preventing Gang– and Drug–Related Witness Intimidation

WITNESS PROTECTION FUNDS SPENT

By Type of Expense

July 1, 1994 through December 31, 1994

3rd and 4th Quarters YTD

Expense Type $ % $ %

Living Expenses 45,155.86 25% 76,415.03 24%

Lodging 81,280.55 45% 144,286.46 46%

Transportation 9,031.17 5% 17,106.10 5%

Protective

Custody 3,612.47 2% 5,612.47 2%

Other 41,543.39 23% 71,180.88 23%

TOTAL 180,623.44 100% 314,600.94 100%
Appendix D 141

Appendix D2

LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE

VICTIM WITNESS ASSISTANCE PROGRAM

WITNESS PROTECTION—FISCAL YEAR 1993–1994

STATISTICS FOR 1 YEAR PERIOD

(JULY 1, 1993 THRU JUNE 30,1994)

Number of cases requiring relocation of victims and witnesses = 142

Percentage decrease over fiscal year 1992/93 = 3.2%

Number of victims, witnesses, and family members actually relocated = 374

Percentage decrease over fiscal year 1992/93 = 16%

Average number of individuals relocated per authorization = 2.6

Number of cases in which victim(s) and/or family members

 required relocation = 49

Percentage of all cases approved for this fiscal period = 34.5%

Percentage decrease over fiscal year 1992/93 = 12.5%

Number of cases in which witnesses to a crime required relocation = 93

Percentage increase over fiscal year 1992/93 = 3.5%

Number of relocations directly attributed to gang related activities = 111

Percentage of cases involving gang related crimes = 78%

Percentage decrease over fiscal year 1992/93 = 1.75%

Number of Superior Court Order relocations = 59

Percentage of cases supported by Court Order = 41.5%

Amount authorized by program directors for fiscal year = $190,973.25

Average authorized amount per case = $ 1,345.00

Compared to previous year 10.75% DECREASE in funding authorizations.
142 Preventing Gang– and Drug–Related Witness Intimidation

Witness ProtectionTotals

TOTAL CASES = 59 SUPERIOR COURT ORDERS

142 83 MUNICIPAL COURT CASES

_______________________________________________________________________________________________________________________________________________

PEOPLE RELOCATED = 144 RELOCATED WITH SUPERIOR COURT ORDER

374 230 WITHOUT SUPERIOR COURT ORDER

______________________________________________________________________________________________________________________________________________________________________________________________________

GANG CASES = 47 SUPERIOR COURT ORDERS

111 64 WITHOUT SUPERIOR COURT ORDER

____________________________________________________________________________________________________________________________________________________________________________________________________________________________

RELOCATED VICTIMS = 21 SUPERIOR COURT ORDERS

49 28 WITHOUT SUPERIOR COURT ORDER

Agencies Requesting Relocations For Fiscal Year

_____________________________________________________________________________________________

LAPD = 91 CASES..........................64.0%

LASD = 19 CASES..........................13.4%

LONG BEACH PD = 14 CASES.......................... 9.8%

COMPTON PD = 4 CASES ......................... 2.8%

POMONA PD = 3 CASES.......................... 2.1%

PASADENA PD = 2 CASES.......................... 1.4%

CLAREMONT PD = 2 CASES.......................... 1.4%

LADA Bofl = 1 CASE............................ .7%

CULVER CITY PD = 1 CASE............................ .7%

BEVERLY HILLS = 1 CASE............................ .7%

GARDENA PD = 1 CASE............................ .7%

EL SEGUNDO PD = 1 CASE............................ .7%

SIGNAL HILL PD = 1 CASE............................ .7%

METRO GANG TF = 1 CASE............................ .7%

________________ ____________ ____

14 AGENCIES 142 CASES 100%

_____________________________________________________________________________________________

GM# 3395

June 18, 1991

(OBSOLETES GM 3358)
Appendix E 143

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).

Appendix E

Sample Public Housing Authority

Procedures for Expediting Transfers of

Intimidated Witnesses

New York City Housing Authority
144 Preventing Gang– and Drug–Related Witness Intimidation

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 agancy (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
Appendix E 145

Attachment 2 — Victim Services Agency Community

Ofices 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.
146 Preventing Gang– and Drug–Related Witness Intimidation

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.
Appendix E 147

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 DISAPPROVED

Step 1 Step 1

The Deputy Director The DeputyDirector

approves request. disapproves request

Step 2 Step 2

Submits to OCD. Submits disapproval

requests to DRRC, reasons for

disapproval are reviewed.

Step 3 Step 3

OCD certifies Negative decision —

transfers and delivers DRRC informs Deputy Dir.

to Command Center of Mgmt. of decision.

for Relocated Families. 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 DISAPPROVED

Step 1 Step 1

The Deputy Director The DeputyDirector

approves request. disapproves request

Step 2 Step 2

Submits to OCD. Submits disapproval

requests to DRRC, reasons for

disapproval are reviewed.

Step 3 Step 3

OCD certifies Negative decision —

transfers and delivers DRRC informs Deputy Dir.

to Command Center of Mgmt. of decision.

for Relocated Families. 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.
148 Preventing Gang– and Drug–Related Witness Intimidation

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 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.
Appendix E 149

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 moveout.

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
150 Preventing Gang– and Drug–Related Witness Intimidation

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
Index 151

Index

A

Assessing the problem, 64

B

Bail, 13–14

Bailiffs, 43

C

Community education, 52

Community policing, 50–52

Community prosecution, 50–52

Community-wide intimidation, 2–3, 49–55

Coordination of services, 67–69, 71–74

Courtroom intimidation, 7, 39–45, 76–79

E

Evaluation, 67, 68, 93–94

F

Federal Witness Security Program, 33, 91

Funding, 65, 92–93

G

Gang suppression, 80–83, 93

J

Jails, 45–49

Judges, 40–44

Jurors, 16

L

Legal issues, 75–89

Legislation, 79, 81, 82–84

Liability issues, 84–87

M

Management strategies — See Witness management

N

Nuisance abatement orders, 82–84

P

Police role, 69–71

Prisons, 45–47

Program development, 59–74

coordination, 67–69, 71–74

evaluation, 67, 68, 93–94

implementation checklist, 74

model, 61

monitoring, 66–67

oversight, 66–67

resources, 65, 92–93

funding, 65, 92–93

individuals, 93–97

literature, 93

organizations, 91

public housing agencies, 91–92

Prosecution, 14–16

Public housing, 32–38, 91–92

Public relations, 52-55

R

Research on intimidation, 4–5, 93

Relocation, 23–38

emergency, 24–32

family members, 29–30

funding, 30

hotels and motels, 28–29

legal barriers, 81; 84–87

options, 25

permanent, 32–38

public housing, 32–38

short-term, 24–32

special security 27, 34

Rural intimidation, 5, 7, 20
152 Preventing Gang– and Drug–Related Witness Intimidation

V

Victim/witness assistance, 19, 21

W

Witness management, 16–19, 42