This week the media has done extensive reporting on the trial of 2 men who are accused of murdering 4 people in Mattapan during a drug deal gone wrong. Allegedly at one point during the trial a manwho was observing the trial got up and called one of the witnesses who was testifying a rat and a snitch. The Boston Globe now reports that the man who made these comments has been arrested and charged with the crime of witness intimidation.
In March of 2006 the legislature passed a bill targeted at decreasing gang violence and giving police more tools to arrest and prosecute gang members who terrorize the community with violent crimes. It was this bill that contained the witness intimidation charge that the man will now face. The witness intimidation portion of this bill was meant to target gang members in the community who would threaten and intimidate innocent witnesses into being too afraid to testify. Because those witness would be too afraid to testify prosecutors were unable to bring many ruthless violent gang members to justice for crimes committed in broad daylight in full view of the public. Being such a new law (most MA criminal charges are decades or even centuries older) it has been interesting to see how police and prosecutors have used the charge of witness intimidation since its inception as a tool to fight violent and dangerous gangs.
Witness intimidation is certainly a serious charge. It is a felony with a maximum penalty of 10 years in state prison. If prosecutors can prove the man did the things they allege with the intent to intimidate the witness who was testifying, it would certainly be an application of the statute that is very consistent with the original intent of the law. However, the statute itself is so open ended and broad that is frequently used by police and prosecutors to target people who have absolutely no involvement with gang activity, or even any criminal record.
Take a look at the language of the statute. Because there is virtually no limitation placed on what conduct constitutes a threat and what doesn’t this kind of charge is now used regularly against people who are arrested for the first time. Most frequently police will use this charge to elevate a simple misdemeanor domestic violence arrest and turn it into a felony case. Police are now trained that if there is any hint that during a domestic dispute one of the parties tells the other not to call the police, or physically tries to prevent them from calling the police, then witness intimidation should be charged.
In my career I have seen witness intimidation charged well over one hundred times in cases I either handled or was associated with. In the overwhelming majority of those cases the witness intimidation charge was based on some conduct alleged to have occurred in the heat of a domestic dispute. Only rarely is it used to protect witnesses to gang activity who are in fear of retribution for their testimony as the legislature intended.
In addition the statute covers many behaviors, not just threats. One doesn’t have to make a threat at all to be charged under the statue. Simply misleading a police officer is enough to bring someone up on these serious felony charges. In my opinion this gets into dangerous territory. Many witnesses provide information to the police without knowing if it is true or not. They can be charged with witness intimidation at any time by the police if they feel as though incorrect information was provided intentionally. The fact that someone didn’t intend to provide false information is a defense at trial, but the mere charge itself is a major disruption to one’s life and liberty.