While waiting for the herd to make its way from the jury room to the courtroom, the judge always asks the same question: who will be the witnesses for the defense? The judge asks for names so he can read them to the jurors to find out if anyone in the panel knows them.
My habit is to tell the judge that I have none, since I have no idea what the prosecution case will be and it is thus impossible to say whether the defense will call any witnesses. While the point is accurate, it’s really a matter of protection. Within an hour of my giving a name, two agents will knock on their door to explain to them the penalties and prison time they will face for testifying on behalf of the defense.
Sure, I prepare the witnesses for this certainty, as their names will eventually surface, but there is a very real difference between my telling them what will happen and the experience of guys with shields and guns threatening their family’s future. They may love the defendant. They may love truth. But not always that much.
If the defense does this, it’s called witness tampering. It’s a crime. When the prosecution does this, it’s called investigation and it’s not only cool, but applauded. All things are not equal.
But in Denver, Judge John Kane was sufficiently disturbed by the police paying a visit to the other side’s witnesses to do something about it. From the San Francisco Gate:
A federal judge has asked the U.S. attorney’s office to investigate whether Denver police officers broke the law when they spoke with a key witness in a federal civil rights lawsuit, the latest in a series of high-profile misconduct allegations against Denver police and sheriff’s deputies.
Judge John Kane also wants an investigation into patterns and practices of the police and sheriff’s departments. Court documents released Tuesday confirmed his request, first made during a Friday hearing in a lawsuit filed by Jamal Hunter.
Hunter sued, claiming he was set up for a beating.
One of the inmates who participated in the beating, Amos Page, became a witness in the civil rights lawsuit. He said in a sworn affidavit that a Denver sheriff’s deputy, Gaynel Rumer, knew inmates were planning the attack and helped facilitate it.
Among other allegations, Page said the attack could not have happened without Rumer’s involvement, and the deputy ignored Hunter’s screams.
So naturally, once the Denver sheriff’s office had Page’s name, the Denver police paid him a visit.
Hunter’s attorneys last month sought an emergency hearing after learning that Denver police internal affairs sergeants Brian Cotter and Brad Lenderink spoke with Page in prison March 10. Hunter’s attorneys said the officers told Page he could face criminal prosecution if he testifies.
Before the hearing Friday, Kane listened to a recording of the officers’ conversation with Page and read a transcript, neither of which has been made public.
Kane said the conversation showed a “deliberate process of intimidation” of Page, an essential witness in the case.
The judge noted that there was no legitimate reason for the police to go see Page. They had his affidavit. And, if you missed the detail, the visit was by the police department, even though it was the sheriff being sued. The police had nothing to do with the case.
“All one has to do to see that is read the complaint and affidavit of Amos Page,” the judge said, according to a hearing transcript. Kane added the sheriff’s department has its own internal affairs unit, and he didn’t understand why police were involved.
And the reaction of the lawyer for the Sheriff?
An attorney for the city, Cathy Havener Greer, told the judge she would look into it.
Yes, she will “look into it.” Maybe they would even conduct an investigation, because they clearly take Judge Kane’s concerns very seriously.
But Judge Kane decided not to wait for the City of Denver to put on a play.
Kane wants the U.S. attorney’s office to determine whether the officers broke laws against witness tampering and intimidation.
For a federal judge to refer a matter to the United States Attorney is no small thing. Not only does this send the message that the Denver sheriff, city and police not get to investigate its own and conclude that, while possibly regrettable in its unfortunate use of threats and intimidation, no wrongdoing occurred, but the feds aren’t nearly as kind to the locals as they are to themselves.
And yet, there is a problem here. For those who enjoy trite phrases, the judge has told the fox to investigate the henhouse. Oh yes, there is a problem here that needs some investigating. It’s been in need of some investigating forever. But the feds do exactly the same thing as the locals. All prosecutors do the same thing. All prosecutors immediately send out their own guys with guns and shields to “investigate” the witnesses for the other side, and someone every single time, they let slip the prison term for pissing off the government.
What are the chances the U.S. Attorney is going to condemn a practice they perform routinely and rely upon in every case where a witness for the defense comes forward? It may be that they will find some distinguishing characteristic that can be used to condemn Denver while maintaining their own virginal status, but it will just be a sham.
While Judge Kane’s recognition of this problem is laudable, and his decision to remove it from the self-investigatory hands of the Denver cops is wise, putting it under the auspices of the feds isn’t enough of a distance to assure a reliable investigation and condemnation of the practice of witness tampering and intimidation. Then again, when all prosecutors do it, there is no one upon whom the judge can rely.