Many state's attorneys in Maryland say they believe a new law will be useful in their efforts to win convictions of violent offenders who try to intimidate state witnesses.
But critics, including some criminal defense lawyers, say the new law is unnecessary and potentially dangerous because defendants could be denied the right to cross-examine state witnesses.
Witness intimidation came to the forefront as an issue for lawmakers and prosecutors after a young drug dealer set fire to a rowhouse in Baltimore in October 2002, killing a family of seven. Among those killed was Angela Dawson, 36, who had made dozens of phone calls reporting drug dealing in her neighborhood.
Such intimidation is a problem in Prince George's County. State's Attorney Glenn F. Ivey (D) estimated that witness coercion is an issue in up to a third of the violent felonies, such as homicides, attempted murders and carjackings, that his office prosecutes.
The final version of the legislation, which Gov. Robert L. Ehrlich Jr. (R) signed into law May 26, is not as strong as the original proposal put forth by prosecutors and other law enforcement advocates.
Proponents of stronger protections had pushed for a broader "hearsay" provision that would have allowed prosecutors to enter into evidence statements made by witnesses who don't appear at trial.
For example, if a witness made a statement to a police officer but did not show up for a trial because he or she was afraid of retaliation, the officer would have been allowed to testify about what the witness said.
Instead, the final version of the legislation, which was worked out by Ehrlich and Del. Joseph F. Vallario Jr. (D-Prince George's), allows hearsay statements by absent witnesses to be used under more limited circumstances: if the statement is given under oath at a trial, court hearing or sworn deposition; if the statement is written and signed by the witness; or if the statement is recorded stenographically or electronically, such as by audiotape or videotape.
To be able to use such statements, prosecutors will have to prove to a judge by "clear and convincing evidence" that wrongdoing by the defendant caused the witness to be unavailable.
The hearsay provision is limited to certain serious crimes, such as homicides, attempted murders, carjackings and drug felonies.
Several prosecutors said in interviews that the law, though not as far-ranging as proponents had sought, will help combat witness coercion.
Charles County State's Attorney Leonard C. Collins Jr. (D) said the law falls short of what he was hoping for, "but it's a step in the right direction."
Montgomery County State's Attorney Douglas F. Gansler (D) said he believes the law has created a "disincentive" for defendants to intimidate witnesses, because even if they scare off a witness, the witness's statement might still be used as evidence. "If they take out a witness, their statements can come in without cross-examination, so [the defendant] gains nothing," Gansler said.
Gansler said witness intimidation does not occur often in Montgomery, but it is not unheard of. For example, he said, members of MS-13, a violent gang active throughout the Washington region, at times try to intimidate witnesses. Gansler said he believes news of the law will spread rapidly among gang members.
Ivey, the Prince George's state's attorney, agreed. "You have enough of a penalty to serve as a deterrent,'' he said.
Howard County State's Attorney Timothy J. McCrone (D) said the law may prompt police to document more witness statements on videotape or audiotape.
"These are relatively minor inconveniences compared with the benefit of the statute," McCrone said.
The law "is a tool I'm glad to have in my arsenal if and when I need it," said Scott Rolle, Frederick County's top prosecutor.
Some criminal defense lawyers have a different view.
Richard A. Finci, a lawyer who has offices in Prince George's and Montgomery counties, said the new provisions are unnecessary because witness intimidation is covered by existing laws.
Someone who intimidates a witness could be charged with any number of offenses, including assault or obstruction of justice, said Finci, a past president of the Maryland Criminal Defense Attorneys' Association.
"It's extreme overkill," he said.
Greenbelt criminal defense lawyer Robert C. Bonsib said he's troubled by the law's hearsay provision because the defense would have no chance to cross-examine witnesses.
"It represents a real threat of depriving a defendant of the right to confront the evidence against him," Bonsib said.
One prosecutor who is not happy with the law is Baltimore State's Attorney Patricia C. Jessamy (D).
"I consider the law to be a toothless tiger," said Jessamy, who believes witness coercion is a factor in as many as 90 percent of the homicide cases her office prosecutes. She said she will lobby for a broader witness intimidation statute when state lawmakers reconvene next year.