Witness Tampering, Always

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.

23 comments on “Witness Tampering, Always

  1. John Barleycorn

    So many opurtunities to use the phrase “typical gang related activity”. You can be so reserved esteemed one.

    You angling to get a consulting gig for the new reality TV program “Witness Investigators” or what?

    The trailers are out and as suspensful as it gets. So many angles and rabbit holes to explore!

    I can’t wait to see the pre-interview briefings and the suspensful “knocks” on all those witnesses doors should be riviting.

    1. SHG Post author

      It’s a crime to commit perjury and obstruct justice, and any testimony inconsistent with the prosecution’s case is, by their definition, perjurious and obstructionist.

      1. onlymom

        Well SHG you have to admit that if anyone could know when someone is committing perjury or lie’s it would be our gov’t they do so much of it.

        1. SHG Post author

          See? No matter how dopey or simplistic your comment, I post it when you don’t advocate killing cops.

  2. Harry

    Can you please elaborate as to what these criminal charges are that witnesses for the defense are being threatened with on a routine basis? Is it against the law in all jurisdictions across the country to testify for the defense? I don’t understand what this.

    1. SHG Post author

      There is no actual crime being committed, just the threat to sufficiently scare witnesses for the defense so they refuse to testify out of fear that they might be prosecuted for perjury or obstruction.

      You’re obviously not a lawyer. Just out of interest, how did you find your way here?

      1. Josh

        I am not a lawyer either. In fact being a soil scientist i am pretty far removed from being one. If you are interested (you probably aren’t) i found my way here through Ken at Popehat and Kevin at Lowering the Bar, i read all of these daily (or at least look at them Popehat is quiet as of late).

        Being from Australia i don’t know why i am interested in American legal news but i find the topic fascinating (in comparison to Australian legal news which is boring), and your writing style is both engaging and informative.

        ps. i know you didn’t ask me but i could not help myself

        1. SHG Post author

          No, I very much appreciate your letting me know. Ken and I need to have a chat. Kevin is busy on his Naked Sasquatch Book Tour, so there’s nothing I can do about him.

      2. Harry

        I can’t remember how I found your site but it was probably from a link in one of the civil liberties related blogs that I regularly read such as “Turley” or “A Public Defender.” Most likely “A Public Defender” now that I think about it.

  3. Charlesmorrison

    Out of curiosity, have you ever been able to use these visits to your advantage on redirect? Has the opportunity ever presented itself with a judge that would allow it? You can’t bolster your own witness’ credibility, but if the government tears into their credibility, you can rehab.

    I’m sure federal judges are little more versed on such things, but, as a state guy, my experience is that impeachment and rehab evidence rulings are a crapshoot.

    1. SHG Post author

      Assuming the witness is sufficiently prepped so as not to be intimidated and lost, then we get ‘em on the stand. But I’ve only walked very gingerly around there, as it opens a whole new level of cross and there is invariably no proof of intimidation, so it makes the witness sound a bit paranoid. So the answer is no, not really.

      And no, federal judges are not only not more versed on such things, but highly disinclined to let in collateral attacks on the integrity of the agents and prosecution.

      1. David Woycechowsky

        “invariably no proof of intimidation”

        But that seems to be changing. For example, in this case there was a tape.

        1. SHG Post author

          The witness doesn’t know when someone is going to knock on his door, so there is little he can do to provide proof of intimidation.

          In this instance, the Denver police not only chose to record, but revealed their recording. The feds had a policy not to record, which was just changed. This was a state case, so the fed policy wasn’t involved. Had the Denver police not recorded, there would be no proof.

      2. John Barleycorn

        This Witness Investigator reality show is going to be off the hook. You CDL’s are going to suffer greatly from the editing I fear. But something tells me you will suffer in agony with grace.

        The time is now, to think of those precious and perilous few second retorts that might slip on through to the other side after the edit. In the land of make believe and in the land of lives being judged with consequences that are more than real,

        Keep up the good fight. Your guild demands it and if you slip you will never sleep again! And if you do you hopefully will never make the same mistake twice.

        Never let the zealousness interfere with the figurative “dress code” of the juror and jury you get, while accommodating respect for the court as your defendant’s witness/es should be guided and coached to leave their individual and biased perspectives at the curb. Uncrate truth and the absolute letter of the law.

        Endeavor to make sure everyone behind your table is beyond and aware of the sound bite of reproach even if you have to resort to context in desperate situations and make damn sure all “witnessing” is uncrated and so far out of the box as to define genuine and crafted so factually in original voice as to leave the judge and prosecutor peeing in their pants while wincing as the dance continues.

        There is no comfort with the knowledge that the witnesses for the defense are being judged beyond the courtroom.

        You work never ends…

        May it one day bring a balance to what is.

        It never will. Your client is guilty by design.

        Your guild should go out of its way more often to highlight this and other subtle and unnoticed nuances of that that roll off the camels back with her thirst for justice amongst the desert ruins.

  4. George B

    I’m thinking Alan Funt.

    You drop the name/address; the victims show up waving badges…..and meet the waiting camera crew already in place.

    SMILE!

  5. Dave

    I was not aware of this particular phenomenon, though I probably should have heard of it given the cases I work on. Would you characterize this as the other side of the coin of witness influence, the offering of deals for testimony? (Another thing only the prosecution can take advantage of. If anyone else offers valuable consideration for fact testimony it is called bribing a witness and is a felony.)

  6. PJ

    I’ve known for a long time that the criminal “Justice System” was dead (at least in the sense of providing justice), but this article certainly makes that as clear as can be. The only question is why anyone with a shred of decency continues to participate in such an institution. It’s not the evil people that keep evil going; it’s the good ones who continue trying to work within a rotten system, the ones who try to mitigate the damage these institutions cause. If the good people would just quit, these institutions would instantly crash due to losing all public support, to be eventually replaced by something more decent.

    It also demonstrates that it no longer makes sense to allow yourself to be arrested for any reason. Might as well fight it out in the streets, any more. We’re getting pretty darn close to “Gulag Archipelago”, so why submit?

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