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The New York Times
N.Y. / Region
Scared
silent
Keeping Witnesses Off
Stand to Keep Them Safe
By DAVID KOCIENIEWSKI,
nytimes.com on the Web, November 19, 2007
The strategy sounds almost illogical:
Detectives in New Jersey are being urged to build criminal cases with as few
witnesses as possible. Or with none at all.
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.
In the New Jersey State Police gang unit, the approach is so common that
detectives have made hundreds of cases during the past five years, but used
civilian testimony fewer than a dozen times, investigators said.
Even Gov. Jon S. Corzine has directed police agencies in the state to use
witnesses more sparingly in cases involving street gangs.
Detective Sgt. Ronald Hampton of the State Police, who has worked in the gang
unit since 2002, said the testimony of civilian witnesses was considered
evidence of last resort.
“It used to be that when someone gave information, the first words out of a
detective’s mouth were, ‘Are you willing to testify to that?’” Detective Hampton
said.
But no more.
“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.”
No one much disputes that the strategy amounts to something of a retreat for law
enforcement in New Jersey. Deciding whether to pressure a witness to
testify has always been one of the most precarious parts of detective work, and
investigators still make cases by turning one gang member against another.
But as murders have climbed across the state — and with more than a dozen
witnesses having been killed in the last five years — building witnessless cases
is seen as necessary.
“People in law enforcement have to make ugly, practical decisions every day,”
said the Camden County prosecutor, Joshua M. Ottenberg, who added that he urged
his investigators to find and use as many witnesses as they can. “It may
not be pretty.”
Instead, cases are made using video surveillance or sting operations or police
testimony. But the cases that can be made without witnesses — often drug
sales or gun possession cases — tend to carry shorter sentences than the more
serious crimes, those that the authorities would most like to prosecute:
murder, kidnapping and assault.
Critics said that by resorting to methods that allow gang members to reduce, or
avoid, punishment for their crimes, the police are essentially rewarding them.
Vincent C. Scocca, a defense lawyer in Essex County who has defended gang
members, said the approach sent a “scary message.”
One example came in 2006, when the Newark police investigated a murder outside
of Toby’s Lounge. They found a man who had told friends that he had seen
everything and could identify the killer, but detectives did not try to
strong-arm the reluctant and frightened witness into testifying. The case
remains unsolved, but the suspect was later arrested on a weapons charge by
federal investigators.
And in August 2006, when Trenton detectives found a minor drug dealer who was
willing to help them secretly record conversations with a gang leader suspected
of running a major heroin ring and ordering the murder or a rival, they turned
down the offer.
Detective Daniel Pagnotta, the lead investigator in that case, said the gang
leader had such a reputation for violence, and the options available to relocate
the witness were so limited, that it was simply too risky. The police
instead set up a sting operation that led to the arrest of the gang leader on
narcotics charges.
They have not charged him in connection with the killing.
“We knew we could have gotten evidence to link him to the murder,” said
Detective Pagnotta, who retired in June. “But it was pretty obvious that
if we did, our witness would end up dead. So we took what we could get.”
Under the best of circumstances, the effort to spare civilians the ordeal of
appearing in court can push the authorities to strengthen their cases by finding
sturdier evidence.
When the Trenton police investigated a gang shooting outside the Jet Wine and
Liquor Store in May 2005, detectives found a witness who was willing to help
them, but he was extremely uneasy. Rather than put his name on a report
that could be turned over to the suspect’s lawyers, or pushing him to testify
before a grand jury, detectives looked for other options and struck gold:
a videotape that showed the suspect with a gun. It led to an indictment
for murder without the need for the witness to testify.
“They can’t intimidate a videotape,” Detective Pagnotta said.
Vernon J. Geberth, whose textbook “Practical Homicide Investigation” is used to
train detectives in hundreds of police departments, cautioned that whatever
forensic evidence or police testimony prosecutors may present at trial, there is
no substitute for the power of a credible civilian witness.
“With witnesses, I always say the more the merrier,” said Mr. Geberth, who
retired from the New York Police Department after serving as commander of the
Bronx Homicide Task Force.
In Camden, attempts to build trust with residents has had mixed results.
In 2004, when the police were making arrests in just 14 percent of all
shootings, they formed a special response team to flood crime scenes with
investigators and to canvass for witnesses. Today, the police solve more
than 40 percent of all shootings, according to city statistics.
Last November, however, a 19-year-old gang member named Fred Morton was
questioned by the response team’s detectives about a murder he had witnessed.
Twelve days later, he was found dead in a city park. He had been
strangled, and his throat was slit.
Prosecutors said there was no evidence that his murder was related to his
discussions with the police, and they pointed out that Mr. Morton had many
potential enemies because he had carried out several robberies and at least one
fatal shooting in the week before his death. But Mr. Morton’s relatives
and many of his neighbors are convinced that he was killed because word had
spread on the street that he had been talking to the detectives.
Mr. Ottenberg acknowledged that while the effort had helped solve more cases, it
had not eased the sense among city residents that the police view witnesses as
“little more than cannon fodder.”
State officials are now considering measures to deter gang members and to
convince members of the public that witnesses will be protected. Attorney
General Anne Milgram said Mr. Corzine’s administration was pushing for stricter
sentences for intimidation and for more money to relocate those whose testimony
puts them in danger.
In the interim, though, the governor has called for the police to use civilian
witnesses sparingly, especially in gun possession cases in which surveillance,
search warrants and police testimony can help them win convictions.
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.
“The bad guys are willing to use tactics that the good guys haven’t yet figured
out how to deal with,” said State Senator John H. Adler, chairman of the
Judiciary Committee.
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