ANNAPOLIS – A Montgomery lawmaker has crafted a compromise to witness intimidation legislation to satisfy some constitutional concerns, but says the bill still is only a placebo for the public and fails to address the problem.
“Everybody agrees that witness intimidation is wrong,” said Delegate Luiz Simmons, D-Montgomery.
But, at the same time, putting legislation in place that penalizes the act isn’t protecting those people who brave threats to testify, he and other lawmakers say.
The governor’s bill allows a witness’s testimony to be introduced in court if that person is no longer able to testify due to death or disappearance.
Simmons and the administration agreed to an amendment that strengthens the evidence required to allow such testimony.
“What the (Ehrlich) administration has failed to do is put a program for witness intimidation together,” Simmons said. “They want to mislead the public into thinking a change in the evidence law is going to protect witnesses.”
And he isn’t the only member of the House Judiciary Committee, which heard testimony on several bills dealing with witness intimidation last week, to have reservations about the bills.
Delegate Darryl Kelley, D-Prince George’s, who was in witness protection when he worked for the U.S. Marshals Service, said the bill doesn’t address the problem.
“You didn’t hear any of those people talk about protecting witnesses,” he said.
To fix the problem, Kelley said more money needs to be added to witness protection programs — the state already adds $1 million to county contributions.
“This is not going to deter witness intimidation. People are still not going to cooperate with police until organized witness protection is put in place,” Kelley said. “It is the wrong approach for right now.”
But the state’s attorney for Prince George’s County said there is a successful, coordinated statewide program.
“The more immediate problem is people who are intimidating witnesses,” Glenn F. Ivey said. “If we get the tools to prosecute them aggressively, that will be the next critical step.”
Ivey said in an interview that the legislation will give some teeth to the law that currently exists.
Simmons agrees the punishment for intimidating witnesses needs to be enhanced, but at the same time the Constitution must be kept in mind.
“We don’t want to savage constitutional protection for all Marylanders,” he said.
Simmons and others say the governor’s bill may abrogate defendants’ Sixth Amendment right to confront their accusers, so he worked with the governor’s office to change the measure’s language.
Their amendment requires “clear and convincing” evidence of witness interference, rather than merely a “preponderance of evidence.” The new language also ensures a hearing is conducted according to Maryland rules of evidence, Simmons said.
But while Simmons said the amendment addresses his concerns on the bill he is unsure if the committee will adopt it.
The committee also has other options on the issue: bills to enhance penalties for intimidating a witness and to make killing a witness a capital crime, a death penalty issue that’s likely to be taken up separately.
The question, said Chairman Joseph F. Vallario Jr., D-Prince George’s, is what form witness intimidation legislation will take if passed?
“I think the committee is in favor of the concept of witness intimidation legislation,” Vallario said. “The question comes down to hearsay.”
It’s uncertain whether Simmons’ amendment will clear up that issue.
The Senate Judicial Proceedings Committee passed two bills with amendments dealing with hearsay and enhanced penalties Friday. They will go to the Senate floor for review next week.
“I thought it went really well with the governor’s bills,” said Delegate Herbert McMillan, R-Anne Arundel. “At the end of the day the simple question you have to ask, is justice best served with the law or without it?”