A couple of days ago, I received emails from a few different readers asking my what I thought about a story in the  New York Times about how cops in New Jersey, particularly Trenton and Newark, are being told to make their cases without using civilian witnesses.  Even Governor Corzine is in on this.  The reason, according to the Times is

In cities struggling with gang-related crimes, like Trenton and Newark, detectives said that even on the infrequent occasions when they find civilian witnesses who might be willing to testify, investigators are wary about pressuring them to appear in court. That reluctance is based on a fear that the authorities might not be able to protect witnesses from retaliation.

On first blush, the story suggests that Jersey police and prosecutors are acting out of an excess of caution and concern for civilian witnesses, to protect them from harm.  If so, this was a good thing.  After all, these are ordinary people coming forward to help law enforcement arrest and prosecute criminals, and law enforcement owes them a duty of care to protect them from any harm that may result from their helping law enforcement, and the rest of society, by testifying against violent people.  As one State Police detective said:

“If you push someone and they agree to testify, now they’re your responsibility,” he said. “You’ve got to keep them from disappearing or getting hurt. Can we protect them? Maybe. But God forbid that two years later you have to tell someone their husband or father got killed. I don’t want to have to live with that.”

I didn’t post about this story right away because something felt wrong about it.  The surface story certainly seemed plausible enough, but it didn’t have the smell of the real story.  So I decided to hold off and give it some more thought.

While I don’t doubt that police officers and prosecutors are capable of empathy (yes, they are human too), I’ve spent enough time representing witnesses to crimes to know that they are generally viewed as “cogs in the wheels of justice” more than people.  Note that we’re not talking about victims of crimes, but rather witnesses.  There’s a difference.  Victims are sometimes taken under wing.  Witnesses are just part of the tool kit to build cases. 

Then it dawned on me that this was not a story about police concern for others, for civilian witnesses, but a story about the inability of law enforcement to perform its function well enough to avoid the two-prong consequence of its failure.  Police both suffer the embarrassment of having people who stepped forward to testify fall off the face of the earth and lose potential future witnesses who won’t come forward because they don’t want to disappear.  This is an institutional failure, not a personal one. 

I’m sure individual officers would feel devastated upon learning that some witness was murdered in retaliation for giving testimony.  Every murder should be abhorred, but it is always different when there is a personal connection.  But the institution of law enforcement doesn’t have feelings.  It takes an academic approach, considering the cost of its function versus its utility.  What this story tells us is that the price is too high.

Norm opined that criminal defense lawyers should not view their function to be “against” law enforcement.  Like everyone else, we rely on our government and its institutions to protect us, our families and our homes.  We want police to do their job, and do it well.  Of course, we want them to do it in the context of the law, to not shortcut the system because it’s faster, easier and more effective to run roughshod over the Constitution.  But we are every bit as much supporters of law enforcement as anyone else.  We too depend on police to protect and serve.

What this New York Times story really tells us is that the police in New Jersey have conceded that they cannot perform their function.  They cannot protect citizens from crime.  They have given up.  It’s not that there is so much crime that they can’t handle it.  There’s no suggestion that volume is the problem.  I haven’t heard of a plague of murders in Newark beyond the scope of law enforcement’s capabilities.  It may have something to do with the focus of law enforcement on other, more newsworthy concerns, like fighting terrorism.  But the story doesn’t mention that either. 

And why just New Jersey?  There are inner cities across America.  There are gangs across America.  What makes anything different in New Jersey?  These questions aren’t asked, no less answered.  But New Jersey officials offer this:

Some state officials who support Mr. Corzine’s proposals said that New Jersey’s witness intimidation problem had grown so complex and severe that it would take a broader effort, from both government and community leaders, to combat it.

Use witnesses sparingly.  Let the big case go in favor of the smaller case where witnesses aren’t needed. The only message that can be taken from this “strategy” is that witness intimidation is an effective tool in preventing defendants from being convicted of crimes.  So this story stands for the proposition that its easier for police to abdicate responsibility for doing their job than it is to keep witnesses off the stand.  Could a better answer be to manage and direct law enforcement to protect the public from harm?  Not so simple, you say?  Very true, but is it better to keep violent criminals on the street rather than face the embarrassment of a failure of policing? 

Clearly, New Jersey needs to do something.  There’s a thorn tree in the Garden State, and right now they’re just letting it grow.