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Witnesses at Risk

Friday, April 8, 2005; Page A24

PROSECUTORS IN Baltimore, which has one of the nation's worst homicide rates, say it is now the norm for witnesses in non-domestic murder and shooting cases to be threatened, often by gang members in league with the defendant. The problem is common in Prince George's County also. In dozens of cases, police are searching for witnesses who have gone underground because of threats. Alarmingly often, the threats are deadly serious; last year several witnesses to murders in Maryland were themselves killed for cooperating with authorities or agreeing to testify. Such intimidation threatens the criminal justice system itself.

Legislation that would help give voice to witnesses who are justifiably afraid to testify against violent defendants has advanced in Maryland's legislature but in a diminished form that may limit its usefulness. The bill, backed by Gov. Robert L. Ehrlich Jr. (R), would make witness intimidation a felony punishable by up to 20 years in prison rather than a misdemeanor carrying only a five-year maximum sentence. But it was weakened at the behest of Joseph F. Vallario Jr., chairman of the Judiciary Committee in the House of Delegates, who was reluctant to give prosecutors more leeway to introduce past statements by intimidated witnesses who are unwilling or unable to testify in court.

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For more than 20 years federal prosecutors have enjoyed broad leeway in using hearsay when witnesses are threatened, and at least 10 states afford prosecutors similar powers. But Mr. Vallario, a Prince George's Democrat, has resisted permitting such testimony in court -- a practice known as the "hearsay exception." A defense attorney, he has sided with fellow defense lawyers who argue that it deprives defendants of their constitutional right to confront and cross-examine an accuser. But more than half a dozen federal appeals courts have dismissed that argument on the grounds that defendants forfeit this right when they threaten witnesses or commit related misconduct.

Under pressure from prosecutors and Mr. Ehrlich, Mr. Vallario agreed to a compromise that would allow some hearsay testimony to be admitted into evidence, but under limited circumstances. For instance, the bill would allow hearsay only if a defendant "engaged in, directed or conspired" to intimidate a witness but not if he simply "acquiesced" to do so, as in the federal courts. The Maryland bill would also apply only to felony drug cases and crimes of violence (but not, say, to child abuse cases) and only if a statement were recorded or given under oath and signed by a witness. Those are also tighter restrictions than required by federal courts.

Maryland's two busiest prosecutors disagree as to whether the diluted bill would help them much. The Baltimore state's attorney, Patricia C. Jessamy, calls it all but useless; the top Prince George's prosecutor, Glenn F. Ivey, says it would still be useful. The disagreement could reflect that witness intimidation is less widespread in Prince George's than in Baltimore.

In any case, why shouldn't Maryland prosecutors have the same tools as federal prosecutors? And why should Maryland witnesses be more imperiled than federal witnesses? Mr. Vallario isn't saying.

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