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No-Show Witnesses Tossed in Jail

Baltimore Prosecutors Use Tactic on Those Who Fear Testifying

By Eric Rich
Washington Post Staff Writer
Saturday, April 9, 2005; Page A01

Kenyetta Costes had been in a Baltimore jail more than five months when, in a handwritten letter, she pleaded with a judge to set her free.

"My life has totally stopped," wrote Costes, 19. "I've lost my life, my family, my children and my home. I humbly ask, would you please consider releasing me on home [detention] until the court date?"

Baltimore police detectives Byron Conaway, left, and Samuel Bowden search the city for witnesses who failed to appear to testify in criminal trials. (Preston Keres -- The Washington Post)

On the court date in question, Costes was not to be a defendant. She was charged with no crime, but was a witness -- a state's witness who, like countless others in Baltimore, had decided that testifying was a risk not worth taking. Prosecutors, determined to put her on the stand, soon found themselves in the awkward position of asking a judge to jail their own witness.

In Baltimore, where cooperative witnesses are routinely shunned and sometimes killed, prosecutors estimate that each week they get three to five orders allowing them to arrest witnesses who have skipped court dates. Within three days, the witnesses must come before a judge, who then can order them held or set conditions for their release.

Generally, witnesses are held no longer than several days, a few weeks at most, prosecutors say. Costes, a mother of two, was the rare case: She spent 163 days in jail before a judge, responding to her letter, set her free in January after she gave a videotaped deposition.

The city's top prosecutor, State's Attorney Patricia C. Jessamy, acknowledged that her office uses so-called body attachment writs more frequently than other state's attorneys in Maryland but said she has little choice. "I would rather not [jail witnesses], but we need to get justice for our victims and we need to get justice for our community, so we do what we have to do," she said. "It's not always pretty."

Prosecutors in other jurisdictions use the practice to a more limited extent. In the District, for example, Channing Phillips, spokesman for the U.S. attorney's office, said that it is not uncommon for warrants to be issued for witnesses who do not show up. Marshals typically take those witnesses into custody, and after a short time in jail, they usually comply with future subpoenas, Phillips said.

But prosecutors across Maryland say witnesses are detained in Baltimore far more frequently than elsewhere. The precise scale of the practice remains obscured by a lack of available statistics.

Richard A. Finci, former president of the Maryland Criminal Defense Attorneys' Association, said he has "major constitutional concerns" about holding witnesses for months at a time and about the tactic of detaining witnesses generally.

"I think it's used too often to pressure witnesses into giving a version of events that favors the government," he said. "Even if a witness is not being directly told that their release is subject to their testimony and cooperation, they're being trained full well to know that if they don't satisfy the government, they're not going anywhere."

Many witnesses, even shooting victims who were talkative when they were bleeding on the ground, would simply vanish if they were not jailed, prosecutors in Baltimore said. A majority of their most serious cases would collapse, they said.

"If he's held for three months, so be it," William F. Cecil, one of Jessamy's prosecutors, said of a hypothetical reluctant witness, "because if you let him go, he's not coming back."

Baltimore Circuit Judge John M. Glynn, who oversees the criminal docket, said the state has "a terrible time" trying to manage its witnesses. "But that's what happens at a place that has the depths of criminal problems this place does," he said. "On the street, the criminals have more power on a day-to-day basis than the police."

It was in Baltimore, in 2002, that a drug dealer firebombed the home of Angela Dawson. The woman, who had complained repeatedly to police about drugs in her neighborhood, was killed along with her husband and five children.

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