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Monday, September 28, 2009

Who Needs the Sixth Amendment? It's Jersey!

Today's you can about legislators -- or judges -- trying to sound smarter than they really are.   (See the next entry below about New York's Mayor Bloomberg trying to stop all smoking.)

Earlier this year, a New Jersey Supreme Court justice came up with a patently unconstitutional suggestion for stopping "witness intimidation": allow statements made by the "witnesses" to police or lawyers to be admitted into evidence and remove the defendants' right to confront or cross-examine the witnesses. (See an earlier Star-Ledger report here.) This top New Jersey jurist clearly forgot the Sixth Amendment to our United States Constitution, which provides in relevant part:
In all criminal prosecutions, the accused shall enjoy the be confronted with the witnesses against him...
There's one other serious, practical flaw about this suggestion.  The judge assumes that the new suggestion/law (of course, his law) is going to deter someone, who (in the case at hand) already allegedly violated Thou shalt not kill.   Basic laws already had no effect; now the judge (and a surprisingly wide cross-section of the New Jersey law enforcement community) believes another "witness protection" law will do the trick.

I speculate that throughout this process, no one actually went to a prospective, threatened witness to see what he/she thinks.

Here's my first point.   If I were that witness, I don't want another piece of paper as "protection."   (Go ask some battered spouses how much help their orders of protection gave them.)  I want relocation, a Kevlar vest, maybe a new name.  

Here's my second point.   If I am a criminal actually intent on intimidating a few witnesses, under the current system I can find out who plans to testify against me, and I can wait until I get close to trial to start the intimidation process.   Under the new proposal, maybe I cannot find out who they if I don't want to "take any chances" I'll think of everyone who might be a witness and try to intimidate that larger circle of people.   (See how the proposal puts a larger circle of people at risk.) 

Moreover, since under the proposal their statements to the cops can be admissible, I can't wait until I get close to trial.   I have to intimidate them right away before they talk to the Five-O, because I don't know if they've said anything and after all, I can't take a chance.   (See how the proposal puts this larger circle of people at risk, at a much earlier point in time, and for an indefinite period of time thereafter.) 

If this proposal actually gets passed, anyone who is a prospective witness -- including people who may have absolutely no intent on saying a word to anyone with a badge -- is in a "zone of danger" from which they will not emerge...until they're dead.   If this is what passes for "witness protection," there must be an Orwellian definition at play here.   This will be more like witness extermination!

If you really want to help the witness you have to make the commitment to spend money and effort.   This means that police, investigators and prosecutors must use some elbow grease.   But we hear -- almost as a reflex -- that these public servants, with their pensions, are simply overworked, underfunded and just not given the "resources."  So in New Jersey, the solutions are simply to violate basic constitutional rights for the administrative convenience of the State, or to give false comfort to some of our most vulnerable citizens.  

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