|Peter T. Elikann is an author, Court TV Network commentator and member of the MBA House of Delegates.
In late March 2006, a compromise was reached by both branches of the Massachusetts legislature on the omnibus “emergency law” anti-gang bill concentrating primarily on witness protection and guns. The legislation placed on the governor’s desk was enormously popular both within the legislature and with the public. (In fact, the initial House vote was 151-2 and the initial Senate vote was unanimous.) The legislation was motivated by the current atmosphere of widespread alarm concerning threats made to witnesses and increasing gun violence particularly among youth gangs. The debate has arisen as Boston struggles with its highest homicide toll in a decade. Proponents of the bill said that police are not making arrests in two-thirds of the homicide cases because residents in some neighborhoods are worried that if they cooperate with police after a crime occurs, they might be killed.
According to one prosecutor, Suffolk County District Attorney Daniel Conley, there is some kind of victim or witness intimidation in nearly 90 percent of all cases involving guns, gangs or serious violence and it can come in such forms as outright threats or a group of gang members entering the courtroom wearing “Stop Snitchin’” T-shirts or subtle eye contact made. Prosecutors claim these bills are vital tools in their struggle to persuade residents in high-crime areas to testify against those accused of a crime. However, although the bill had wide support every step of the way through the legislature and onto the governor’s desk, some argue that, in its zeal to crack down on crime, parts of this legislation might be unconstitutional in violation of a right to a fair trial.
Among other things, the bill:
• Creates and funds a Massachusetts Witness Protection Program to relocate and/or protect victims and witnesses who are threatened;
• Sets up a state Witness Protection Board;
• Expands the definition of perjury making it easier to prosecute;
• Increases punishments for perjury;
• Increases the penalties for some gun-related laws;
• Restricts access of some accused citizens to grand jury minutes on their own case;
• Funds community-based youth crime prevention and intervention initiatives; and
• Amends witness intimidation laws and penalties.
Restricted access to grand jury minutes
This is the most controversial of all the parts of the new law and is the most vulnerable to a court challenge.
The legislation does, upon motion of the commonwealth, allow judges to issue a protective order to prevent defense lawyers from giving copies of witnesses’ grand jury testimony to a defendant:
• This can be done in instances where (a) the defendant is accused of a violent crime and (b) specific and articulable facts support “a reason to believe” he or she poses a threat to a witness or a victim based on, among other things, past history or the nature of the charge.
• In making a determination as to issuing a protective order under this section, the court shall consider whether the defendant has an “exceptional need” to receive such grand jury transcripts.
• For a defense attorney to gain access to such information, he/she must file a motion for such discovery under “the interest of justice” standard.
• If the court orders such information released, in whole or in part, upon motion of the commonwealth and “for cause shown,” the court may restrict release of such information to defendant’s counsel only.
• Absent this protective order, the defense attorney may share a grand jury transcript with the defendant, an investigator or to assist in the defense of another defendant.
Defense lawyers say defendants must have access to such testimony to mount an effective defense. Denying such access makes it harder for defendants to review testimony against them and denies them their right to a fair trial. Reviewing grand jury minutes is vital in determining the basis for theories of defense; determining what needs to be investigated; determining additional witnesses that may need to be called; countering forensic evidence presented; formulating cross-examination to confront and impeach witnesses based on prior inconsistent statements; determining whether to bring a motion to dismiss the indictment based upon false testimony or lack of probable cause at the grand jury hearing; and more. Plainly stated, defense counsel argue one simply can’t defend a case without going over grand jury testimony with a defendant.
Also, there’s the fear of this law’s chilling effect: when working under this kind of order, the lawyer risks committing a crime every time he or she confers with the client. Every time, the lawyer will have to have a copy of the discovery order in hand, and guard his or her words to make sure one doesn’t disclose prohibited information to the defendant. Additionally, although not stated within the text of the law, defense attorneys might feel obligated to draft a “distribution of grand jury minutes” warning informing the client that the minutes must not be shared with any third party, in order to protect the client from prosecution for violation of this section.
The requirement that a protective order can be issued on the basis that there is a “reason to believe” the defendant poses a threat will also be subject to a court challenge as it will undoubtedly be argued that a “reason to believe” could be anything and is overly broad.
On the other hand, proponents of the law argue that past practice has shown that identifying those who testify before a grand jury against a defendant are immediately placed in grave jeopardy including being killed. In one oft-cited example, actual paper copies of the grand jury testimony of one person were taped onto the front door of his home and on telephone poles around his neighbor hood to both expose the witness and serve as a chilling warning to him and to others who potentially might cooperate with authorities in the future.
Witness Protection Board
The anti-gang bill establishes a statewide witness protection program that would be administered by the Executive Office of Public Safety and a Witness Protection Board. The board oversees the witness protection program and coordinates the efforts of all state, county and local law enforcement agents to protect witnesses. The way it works is that district attorneys would apply to the board in specific cases for resources to provide witness protection including armed escorts, relocation, payment of housing expenses and protective orders against those who are a threat to witnesses. It is a five-member board that includes the Secretary of Public Safety (who would serve as chair), Attorney General, State Police Colonel, one chief of police and a designated district attorney.
Witness protection program
Entrance into the witness protection program will be made on the direct petition of a prosecutor. Three or more members of the board will have to approve each request. However, if there are exigent circumstances, a prosecutor may take temporary steps prior to the board’s consideration. Here the statute is vague as to what these temporary actions are as determined by a prosecutor. For example, what standards or safeguards are there for ordering into custody someone sitting in a courtroom and deemed scary by the prosecutor? Also, it is left unstated whether all these services will be offered to defense witnesses who are intimidated.
Protection services provided to a witness or family member may include, but shall not be limited to:
(a) Armed protection or escort; marked or unmarked surveillance; or periodic visits or contact by law enforcement officials prior, during or subsequent to a criminal proceeding;
(b) Physical relocation to an alternate residence (if one is transferred to public housing that has a long waitlist or one’s children are relocated to a different school where class capacity or jurisdiction might pose a problem, these obstacles will not be permitted to serve as an impediment and they can be overridden);
(c) Housing expenses;
(d) Transportation or storage of personal possessions;
(e) Basic living expenses; and
(f) Petition for a protective order on any individual identified as a threat to a witness.
Admittance into the witness protection program depends on the witness entering into a signed “memorandum of understanding.” This memo would include promises (a) to cooperate fully and truthfully; (b) to not commit any crimes; (c) to promise to take precautions so as not to reveal participation in the witness protection program; (d) to comply with any legal obligations or civil judgments against oneself, make known all legal obligations such as child support, designate someone as an agent for service of process; (e) to comply with any requests made by the prosecutor; (f) to disclose outstanding parole and probation obligations; and (g) to inform the prosecutor of activities and address changes. If the witness is offered and declines such protection, a protocol is established to document that refusal. There is, similarly, a procedure if the witness violates the memorandum of understanding and the prosecutor wishes to terminate him from the program or the witness himself opts to leave the program.
A new definition of perjury
Prosecutors say witnesses are sometimes pressured to change stories after giving a truthful account to the grand jury, which meets behind closed doors, and the perjury law needs to be toughened to discourage them from doing so.
Currently, if a witness makes two contradictory statements under oath, for example, in his or her grand jury and in his or her trial testimony, prosecutors must determine which statement is false to make a perjury prosecution. Prosecutors say that law has become a convenient loophole for savvy witnesses who know they can make statements that cancel each other, fulfilling their obligation to testify while avoiding becoming labeled as snitches.
Under the new law, Massachusetts adopted, for the first time, a standard in which such witnesses could be prosecuted without regard to which sworn statement was false. It would essentially be a strict liability crime as all a prosecutor would have to show is that there is an inconsistency in the accounts rather than an intent to deceive. If a witness gives two widely inconsistent statements that cannot be rectified and are material to the point in question, he could face a charge of perjury per se. If, in the same “continuous” court or grand jury proceeding, a witness admits that a declaration made was, indeed, false then prosecution would be barred provided that the false statement had not already been exposed or was about to be exposed. However, it will be a defense that, at the time of the false declaration, the defendant either believed the statement to be true or made a good faith mistake.
While prosecutors say the purpose of the law is to hold witnesses accountable, defense counsel say that allowing prosecution for merely giving inconsistent statements is troubling without a requirement of intent to provide false information. Witnesses often innocently give inconsistent statements. There are many instances where witnesses will be charged and the state of mind of the witness at the time of the statement will be hard to prove. Historically, “perjury” was supposed to be one of the most difficult crimes to prove — originally the standard for conviction was a special standard, well beyond “beyond a reasonable doubt.” Now, here in Massachusetts, the existence of a contradiction might be sufficient. This also might possibly be a disincentive for a witness who initially lied to come forward and change his story by giving truthful information, if he risks prosecution merely for being inconsistent. Additionally, some attorneys are wary that the chilling effect might extend also to those witnesses who at all times intend to be truthful, but fear that they might accidentally or through a slip of the tongue testify inconsistently. They might refuse to offer their otherwise helpful testimony because they fear a mistake might get them prosecuted.
Increased penalties for laws related to firearms
1. The new law carries increased penalties for the growing use of “community guns” by gang members.
A community gun is a loaded weapon that is used to commit a crime and then dumped at a specific location — still loaded — for other gang members to use in future crimes. Specifically, this law creates the crime of leaving a firearm unattended with the intent to transfer possession to an unlicensed person for the purpose of committing a crime. It carries a penalty of not more than two and one half years in the house of correction or not more than five years in state prison.
2. The new law increases the mandatory minimum term of incarceration for carrying an illegal firearm from one year to 18 months.
3. If the person is convicted of carrying the firearm and the firearm is “loaded,” then, under the new law, there shall bean additional sentence of not more than two and one half years in the house of correction, which sentence cannot be concurrent, but rather shall begin “from and after” the expiration of the first sentence.
Youth intervention and crime prevention programs
This anti-gang legislation also includes an $11 million investment in a grant program to support creative, community-based anti-gang and youth leadership efforts. This initiative was approved separately from the rest of the bill by the legislature. One highlight of this part of the bill is that rather than leave a municipality to “go it alone,” the grant also asks cities and towns to share best practices. Instead of prescribing a solution, the grant program seeks to empower communities to combat gangs in their own unique ways.
Amended witness intimidation laws and penalties
Whoever discloses anyone’s participation in the program shall be punished by imprisonment for not more than two and one half years in a house of correction or by a fine of not more than $5,000.
Whoever threatens or attempts to injure in any way including emotional injury, economic injury, etc.; or attempts to influence through the offer of a bribe; or misleads, intimidates or harasses someone with the intent to impede the investigation or prosecution of an offense shall be punished by imprisonment for not more than two and one half years in a house of correction or not more than 10 years in a state prison, or by a fine of not less than $1,000 nor more than $5,000. This includes not just a witness, but also a judge, juror, grand juror, prosecutor, police officer, federal agent, investigator, defense attorney, clerk, court officer, probation officer or parole officer.
Whoever distributes a grand jury transcript with the intent to obstruct a court or criminal proceeding or the continued participation of a person in the proceeding shall be punished by imprisonment in the house of correction for not more than two and one half years or in the state prison for not more than five years or by a fine of not more than $5,000, or both. The law specifically notes that nothing in this section should be construed to abridge any right under the U.S. Constitution.
The bail statute (chapter 276, section 58) now specifies that, if released, the defendant may be ordered to abide by specified restrictions on his associations including but not limited to avoiding all contact with the alleged victim and any potential witnesses.
A court can issue a protective order similar to a 209A (domestic restraining order) for the safety of any victim or witness of gang related violence, including an order to maintain a prescribed geographical distance from any specified victim or witness. Violation of this could result in a sentence of incarceration of up to two and one half years and a $5,000 fine.