Scaring Off Witnesses

Testifying can be time consuming, costly--and risky

Last December a man wearing a ski mask and carrying a shotgun broke into Richard Morgan's San Francisco Bay-area home. Morgan, a burly Teamster, managed to chase him away and get his license number. But after the suspect was arrested and released on bail, police say, he threatened Morgan over the phone, assaulted him in the courthouse hallway and stole one of his dogs. Finally, the suspect tried to blow Morgan up. Returning to Morgan's house late one night in mid-August bearing 75 sticks of dynamite, the suspect was scared off by barking dogs and fled, leaving the bomb to explode in the driveway. The blast rocked the neighborhood, shattering windows in nearby houses, but Morgan escaped unharmed. Now in hiding, Morgan says he will still testify.

Not everyone is so determined. "People are afraid," says Robert Kaye, chief of the Florida State Attorney's Office Strike Force. "They ask themselves, 'Is the defendant going to get me when he gets out of jail?' " When the Institute for Law and Social Research asked witnesses in Washington, D.C., what they needed most, the largest single response was "better protection." Intimidation is not just limited to witnesses who squeal on the mob or run afoul of mad bombers. In suburbia, parents wonder what retribution is in store for them-- or more worrisome, for their small children-- if they turn teen-agers in for petty vandalism. Intimidation is a major problem, not just in felony cases, but in misdemeanor courts as well.

The criminal justice system, of course, depends on civilian witnesses, as well as the police. In many in stances, say prosecutors around the country, the loss of one key witness means no case. Though statistics of witness no-shows are spotty and hard to come by, a recent study in high-crime Brooklyn, N.Y., by the Vera Institute of Justice found that as many as half the witnesses required to come to court for trial just did not show up.

Fear is not the only reason. Not wanting to "get involved" makes potential witnesses behave like the three monkeys who hear no evil, see no evil and speak no evil. "With a shooting in a bar." says one Detroit law officer, "you'll have 30 people tell you they were in the John at the same time." However un-Samaritan it may seem, the unwillingness of witnesses to go to court is understandable. Witness waiting rooms are grim, if they exist, and court procedures can be exasperating. Getting cross-examined by a zealous defense lawyer is often a fearful experience in itself, especially for rape victims. The typical experience of a witness, says a former head of the Law Enforcement Assistance Administration, is to be "abused, ignored, attacked. At the end of a day in court, he is likely to feel that he himself is the accused."

In Brooklyn, Mark Feinstein, executive director of Vera Institute's Victim/ Witness Assistance Project, admits that intimidation accounts for some no-shows. But more are due to misunderstanding of the criminal-justice system. Lots of people call for a cop to protect them, but, says Feinstein bluntly: "The large majority have no intention of going to court when they make their complaint." To combat disaffection, the Vera program provides a special reception center for witnesses in the courthouse, free transportation to court, day care for witnesses' children, a "victim's hot line" so prospective witnesses can get instant advice and reassurance. There is even a repair service to board up victims' broken windows and fix damaged locks. Since 1974, the National District Attorneys Association has sponsored victim-witness assistance programs through 68 offices all over the U.S. Other groups, including the Junior League in Chicago, have pitched in, providing encouragement to witnesses. With some success apparently: in one Chicago courtroom the Junior League ladies have cut the number of no-show witnesses in half. But progress is slow where the problem is deepseated; Vera's Brooklyn project, for instance, has made what Feinstein calls "minor improvements," whittling down the nonappearance rate from 55% to 35% to 40%.

To protect high-risk witnesses, like the ones testifying against organized crime, the Justice Department in 1970 embarked on a Witness Security Program that has cost $62 million so far. What the Government is up against is shown by a March 1978 report on the fate of witnesses and informers not protected by the program in 50 narcotics-related cases: 45 murders, nine attempted murders, nine death threats and assorted physical assaults.

Many states lack the resources to protect witnesses. John Kaplan, a Stanford Law School professor, suggests another alternative: speedier trials and stiffer bail. "The longer the delay, the more likely the witness will be intimidated. Our lenient bail practices have not helped," says Kaplan, noting that they put the accused back on the street, where he can seek out his accusers. Some district attorneys have proposed a starkly realistic solution: compulsory pretrial depositions, which roughly means getting a witness's testimony quickly on the record. That way, Boston Special Assistant D.A. Thomas Dwyer explains, "if the witness is murdered before the trial, you can use the deposition."

Speedier trials would also help witnesses less patient than Patricia Finck, a Philadelphia A & P cashier who went back to court 46 times to get two stickup men convicted. "After three or four continuances of a case," says Patrick Healy, the executive director of the National District Attorneys Association, "unless you're really a devoted witness, you'll kiss it off. After all, what's in it for you? This business of civic pride goes so far. And the smart defendant and the smart defense lawyer will delay a case to death."

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